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DD Basu Commentary on the Constitution of India, Vol 1-4, 9e 2015/Volume 4/PART III FUNDAMENTAL
RIGHTS/Article 19 (Contd.) 1 of 4

CONSTITUTION OF INDIA
CLAUSE (1)(A): FREEDOM OF SPEECH AND EXPRESSIONOTHER CONSTITUTIONS

Learned Author T.M. COOLEY in his book A Treatise on the Constitutional Limitations,2 while defining
"freedom of speech and press" has stated thus: "The constitutional liberty of speech and of the press,
as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to
be protected against any responsibility for the publication, except so far as such publications, from
their blasphemy, obscenity or scandalous character, may be a public offence, or as by their falsehood
and malice and they may injuriously affect the private character of individuals. Or, to state, the same
thing in somewhat different words, we understand liberty of speech and of the press to imply not only
liberty to publish, but complete immunity for the publication, so long as it is not harmful in its character,
when tested by such standards as the law affords. For these standards, we must look to the common
law rules which were in force when constitutional guarantees were established". 3Article 10 of the
European Convention for the Protection of Human Rights and Fundamental Freedom provides--(1)
Everyone has the right to freedom of Expression. This right shall include the freedom to hold opinion
and to receive and impart information and ideas without interference by public authority and
regardless of frontiers. This article shall not prevent States from requiring the licensing of
broadcasting, television and cinema enterprises; (2) The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society in the interest of national
security territorial integrity or public safety for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for preventing disclosure of
information received in confidence or for maintaining the authority and impartiality of the judiciary.
What is the rationale of Free Expression?

1)  Self Governance.--Democracy assumes that we govern ourselves. Free

expression is indispensable to the unfettered exchange of ideas necessary for self-
governance. The governors of democracy, the people must be free to choose away all
conceivable ideas in formulating public policy. The self-governance rationale has several
additional facts, which are sometimes asserted as independent purposes for free
expression. First, free expression helps prevent entrenchment of interest in Government.
Democracy presumes that Government power will be wielded by different hands over
time. When that is no longer the case, democracy ceases. Second, free expression buys
political stability. Losers in politics are less likely to contest their loss by violence if they
have had a fair chance to be heard. Third, free speech serves to "check the abuse of
power by public officials" by providing to the citizenry the information needed to exercise
their veto power when the decisions of public officials pass certain bounds." Free speech
severs to 'check' the abuse of power by public officials "by providing to the citizenry the
information needed to exercise their veto power when the decisions of public officials
pass certain bounds.
1)  The search for truth.--Free speech is necessary to determine the truth. But
what is truth, a postmodern skeptic might wonder. "The theory of our Constitution is that
the best test of truth is the power of the thought to get itself accepted in the competition
of the market.4 On this view, truth is whatever most people say is. While the market place
of ideas may not always accurately filter that which is empirically verifiable as true from
false", the critical question is not how well truth will advance absolutely in conditions of
freedom, but how well it will advance in condition of freedom as compared with some
alternative set of condition". Those who hold to the idea that truth is a knowable if not
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always verifiable concept are even most robust in their claim that free expression in
critical to finding truth. Related to truth is the idea that free expression is necessary to
develop moral virtue. In a world of extreme moral relativism this may be but a facet of
the "market place of ideas" metaphor, but however our moral compass as calibrated our
ability to make moral choices--to opt for good and reject evil--requires that we be free to
choose. The process of moral deliberation often involves the expression of views, only to
reconsider them when others reply or react to the expressed sentiments.
Related to truth is the idea that free expression is necessary to develop moral virtue. In a
world of extreme moral relativism this may be a facet of the 'market place' of ideas,
metaphor, but however, our moral compass which has calibrated our ability to make
moral choices--to opt for good and to reject evil--requires that we be free to choose. The
process of moral deliberation often involves the expression of views, only to reconsider
them when others reply or react to the expressed sentiments.
1)  Societal Tolerance and self-restraint.--The practice of free expression
cultivates the virtues of tolerance and self-restraint. JUSTICE HOLMES noted that free
expression does not means "free thought for those who agree with us, but freedom for
the thought we hate".5 In an increasingly culturally diverse society, these virtues may be
necessary for social preservation. If so, this purpose is not unrelated to self-governance.
1)  Autonomy.--Some contend that the purpose of free expression "derives from
widely accepted promise that the proper end of man is the realisation of his character
and potentialities as a human being". Free expression is an integral part of this
development of ideas, of mental exploration, and of the affirmation itself. But individual
self-realisation does not end with verbal or symbolic expression. This rationale for free
speech requires an explanation of why expression deserves special protection, which
may offer self-fulfilling act ivities do not receive protection. 6
Other rationales are--

1a)  The checking value.--"Another rationale for the protection of free expression
is the value that the free speech can serve in checking abuse of power by public-
officials. The central premise of the checking value is that the abuse of official power is
an especially serious evil because of Government's unique capacity to employ
legitimized violence. The Government's monopoly of legitimized violence means that the
check on the Government must come from the power of public opinion..."
1b)  The Tolerant Society.--The free speech principle involves a special act of
carving out one area of social interaction for extra-ordinary self-restraint, the purpose of
which is to develop and demonstrate a social capacity to control feelings evoked by a
host of social encounters. The free speech principle in thus concerned with nothing less
than helping to shape the intellectual character of the society.
1c)  Free speech and character.--"... Person who live in free speech regime are
forced to cope with persistent and frequently intractable, difference of un-derstanding.
For most of us that is a painful challenge..... Being made to take account of such
differences shapes our character."
1d)  Conformity and Dissent.--"Conformity is often sensible course of act ion; we
do best, by our own lights, if we do what others do. One reason we conform is that we
often lack much information of our own; and the decision of others provide the best
information we get. It we are not saves of what to do, we might as well adopt an easily
applied rule of thumb. Follow the crowd. The problem is that widespread conformity
deprives the public of information that it needs to have. Conformists are often thought to
be protective of social interest, keeping quiet for the sacks of the group. By contrast,
dissenters tend to be seen as selfish individualists, embarking on project of their own.
But in an important sense, the opposite is closer to the truth. Much of the time,
'dissenters benefit others, while conformists benefit themselves. If dissenters are
punished, for expressing nonconforming views, they will fail, to disclose what they know
and believe to the determined society."7 In Constitutional Interpretation by CRAIG R.
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DUCAT,8 the learned author has extracted a passage from the speech of PROF.
THOMAS EMERSON as to importance of freedom of speech which reads thus:

"First, freedom of expression is essential as a means of assuring individual's self-fulfilment.

The proper end of man is the realisation of his character and potential as a human being. For
the achievement of this self-realisation, the mind must be free. Hence, the suppression of
belief, opinion or other expression is an affront to the dignity of man, a negation of man's
essential nature. Moreover, man in his capacity as a member of society has a right to share in
the common decisions that affect him. To cut off his search for truth or his expression is to
elevate society and the State to a despotic command over him and to place him under
arbitrary control of others.Second, freedom of expression is an essential process for
advancing and discovering truth. An individual who seeks knowledge and truth must hear all
sides of the question, consider all alternatives, test his judgment by exposing it to opposition
and make full use of different minds. Discussion must be kept open no matter how certainly
true an accepted opinion may seem to be; many of the most widely acknowledged truths have
turned out to be erroneous; conversely, the same principle applies no matter how false or
pernicious the new opinion appears to be, for, the unaccepted opinion may be true or partially
true and even if wholly false, its presentation and open discussion compel a rethinking and
retesting of the accepted opinion. The reasons which make open discussion essential for an
intelligent judgment likewise make it imperative for rational social judgment.Third, freedom of
expression is essential to provide for participation in decision making by all members of
society. This is particularly significant for political decision. Once one accepts the premise of
the Declaration of Independence--that Government derive their powers from the consent of
the governed--it follows that the governed must in order to exercise their right of consent,
have full freedom of expression, both in forming individual judgment and in forming the
common judgment. The principle is also carried beyond political realm. It embraces the right
to participate in the building of the whole culture and includes freedom of expression in
religion, literature, art, science and all areas of human learning and knowledge.Finally,
freedom of expression is a method of achieving a more adaptable and hence a more stable
community; of maintaining the precarious balance between healthy cleavage and necessary
consensus. This follows because suppression of discussion makes a rational judgment
impossible, substituting force for reason; because suppression promotes inflexibility and
stultification, preventing society from adjusting to changing circumstances or developing new
ideas and because suppression conceals the real problem confronting society, diverting
public attention from the critical issues. At the same time, the process of open discussion
promotes greater cohesion in a society because people are more ready to accept decisions
that go against them, if they have a part in the decision making process. Moreover, the State
at all times retains adequate powers to promote unity and to suppress resort to force.
Freedom of expression thus provides a framework in which the conflict necessary to the
progress of society can take place without destroying the society. It is an essential
mechanism for maintaining the balance between stability and change."

Freedom of speech and expression has been described as "the touchstone of individual liberty" and
the indispensable condition of nearly every other form of freedom. 9
U.S.A.
(A) U.S.A.--The First Amendment to the Constitution of the United States (1971) lays down--
"The Congress shall make no laws.abridging the freedom of speech or of the press...".
On this clause, the Supreme Court has observed:10
"The safeguarding of these rights to the ends that men may speak as they think on matters vital to
them and that falsehoods may be exposed through the processes of education and discussion in
essential to free government. Those who won our independence had confidence in the power of free
and fearless reasoning and communications of ideas to discover and spread political and economic
truth. Noxious doctrines in those fields may be refuted and their evil averted by the courageous
exercise of the right of free discussion. Abridgement of freedom of speech and of the press, however,
impairs those opportunities for public education that are essential to effective exercise of the power of
correcting error through the processes of popular government." 11
Of the pre-eminent position of the freedom of speech in the Bill of Rights, the Court has said: 12
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"Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other
freedom."
It is the foundation of free Government,13 for, it is only through free debate and free exchange of ideas
that the Government remains responsive to the will of the people and peaceful change is effected. 14 It
also rests on the assumption that the widest possible dissemination of information from diverse and
antagonistic sources is essential to the welfare of the public. 15 The First Amendment, therefore, fore-
closes the public authority from assuming 'a guardianship of the public mind' by means of regulating
the press or speech.16 In the words of JACKSON J.--
"Compulsory education of opinion achieves only the unanimity of the graveyard.Authority... is to be
controlled by public opinion, not public opinion by authority." 17
In the case, the US Supreme Court held that state action compelling school children to salute a flag,
on pain of expulsion from a public school was contrary to First and Fourteenth Amendment, when
applied to those students whose religious beliefs forbade saluting a flag.
Freedom of speech and expression thus predicates freedom of the intellect to entertain unorthodox 18
or even ideas hateful to the prevailing climate of opinion 19 and the freedom to dissent.20 Nobody can be
compelled to accept any idea,--not even that of national unity. 21

"if there is any fixed star in our Constitutional constellation it is that no official, high or petty, can prescribe what
shall he orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by
word or act their faith therein".22

In the same strain JUSTICE HOLMES expressed his faith:

"The best test of truth is the power of the thought to get itself accepted in the competition in the
market".23
It follows that the freedom of expression is not confined to any particular field of human interest. 24 It
can be exercised not only for religious purposes but for political, economic, scientific news or
informational ends as well.25
As to "literal" meaning of speech and the scope of protection afforded by First Amendment, JUSTICE
BLACK in his book A Constitutional Faith26 has said:
"My view is, without deviation, without exception, without any ifs, buts or whereas, that freedom of
speech means government shall not do anything to people, either for the views they have or the views
they express or the words they speak or write. Some people would have belief that this is a very
radical position, and may be. But all I am doing is following what to me is the clear wording of the First
Amendment, that "Congress shall not make no law abridging the freedom of speech or of the Press".
These words follow MADISON'S admonition that there are some powers the people did not mean the
federal government to have at all. As I have said innumerable times before I simply believe that
"Congress shall not make no law" means "Congress shall make no law". Thus, we have the absolute
command of the First Amendment and no law shall be passed by Congress abridging the freedom of
speech or the Press...".
At the same time, JUSTICE BLACK resisted with equal determination, the attempts to define "freedom
of speech" as "freedom of expression". Forms of expression that include more than natural oral or
written expression were not speech, but "conduct" or "speech plus" (a form of behaviour in which
speech and conduct elements are intertwined) and they did not fall within the amendment's absolute
protection. Learned Judge said:

"Picketing, demonstration and similar activity usually consists in walking or marching around a building or
place carrying signs or placards protesting against something that has been or is being done by the person
picketed. Thus a person engaged in some act ivities is not only communicating ideas--that is, expressing
freedom of speech or press--but pursuing a course of conduct in addition to constitutionally protected speech
and press. This is not a new idea either with me or the Supreme Court since it has long been accepted
constitutional doctrine that First Amendment presents no bar to the passage of laws regulating, controlling or
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entirely suppressing such a course of marching conduct even though speaking and writing accompany it. As
picketing is made up of speech and press plus other conduct, so are what are popularly called demonstrations
and street marches. And the conduct of demonstrators and street marchers like that of pickets can be
regulated by government without violating the first Amendment".

While both 'conduct' and 'speech plus' were constitutionally subject to reasonable regulation by
Government, there are two limitations on Government's regulation of "speech plus". First, regulatory
laws in this area must be applied to all groups alike and these laws must never be used as a guise to
suppress particular views which the Government dislikes; otherwise, it amounts to precisely the kind
of governmental censorship, the First Amendment was written to proscribe. Second, the First
Amendment prohibits Government from regulating conduct in such a way as to affect speech indirectly
where other means are available to accomplish the desired result without burdening speech or where
the need to control the conduct in question is insufficient even to justify an indirect effect on speech. 27
'Freedom', again, means freedom not only from previous restraints, but also from fear of subsequent
punishment, except, on constitutionally permissible grounds. 28(see post).
But, even though the guarantee in the First Amendment is in an absolute form--"The Congress shall
make no laws..."--like the other freedoms guaranteed by the Constitution, freedom of expression,--the
Supreme Court has held--cannot be absolute.29 Thus,

"The most stringent Protection of free speech would not protect a man in falsely shouting fire in a theatre,
causing a panic".30

The State may, therefore, in the exercise of its 'police power' impose valid restrictions upon the
freedom of speech and expression, on grounds, which may be broadly classed under the following
heads:

1i)  Protection of individuals from libel and slander.31

1ii)  Protection of the community against the dissemination of obscenity. 32

1iii)  Protection of interference with the administration of justice. 33

1iv)  Protection of the State against internal disorder, 34 or overthrow of orderly

Government by force.35

1v)  Punishing incitement to crime.36

1vi)  Protection of the State against external aggression, 37 by punishing any

speech or publication which interferes with the war efforts of the nation. 38
The utterance of 'fighting words' used face to face that are annoying and that plainly tend to excite the
person addressed to a breach of the peace is not protected by the First and Fourteenth Amendments.
The exclusion of 'fighting words' from the scope of First Amendment simply means that for the
purpose of First Amendment, the unprotected features of the words are despite their verbal character,
essentially 'non-speech' element of communication. Fighting words are analogous to a noisy sound
truck; both can be used to convey an idea; but neither has, in and of itself a claim upon First
Amendment. As with the sound truck, however, so also the fighting words. The Government may not
regulate use based hostility--or favouritism--towards the underlying message expressed. 39 In
Chaplinsky v. New Hampshire ,40 the Supreme Court held the state legislation which provides for
punishment for the utterance of fighting words. In Schenc v. United States ,41 it was held that the
character of every act depends upon the circumstances in which it is done. The most stringent
protection of free speech would not protect a man in falsely shouting fire in a theatre and causing
panic. It does not even protect a man from an injunction against uttering words that may have all the
effect of force. The question in every case is whether the words used are used in such circumstances
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and are of such a nature as to create a clear and present danger that they will being about the
substantive evils that Congress has a right to prevent. It is a question of proximity and degree. It was
held loud and obscene, the profane, the libelous and the insulting and fighting words are not essential
part of any expression of ideas and are not protected and safeguarded by the Constitution and its
punishment as a criminal act would raise no question under the Constitution. 42
[As to these restrictions, see, further under Cl. (2), post].
The freedom of speech guaranteed by the Constitution is available so long as there is no
countervailing social interest which takes the 'speech' out of the protection of the guarantee, e.g.,
where the object of the speech is not the communication of ideas but to defame another person, or to
defraud the public or to insult another in a public place or to give vent to one's libidinous emotions
(see below). In such cases, the social value of the expression is outweighs by the social interest in
public order, morality and the like. Such utterances are, therefore, outside the area of 'constitutionally
protected speech' and, accordingly, steps to suppress them are not subject to the 'clear and present
danger' test.43
The Constitution of USA does not provide the specified grounds on which restrictions may be imposed
upon freedom of speech and expression and also upon the freedom of the press. The Supreme Court
devised the "clear and present danger" test to decide whether the restrictions as the right to freedom
of speech and expression and if the freedom of press is valid or not. "The question in every case is
whether the words are used in such circumstances and one of such a 'nature' as to create a 'clear and
present danger' that they will bring about the substantive evils that the congress has a right to
prevent".44 It was observed therein that it is a proximity and degree. When a nation is at war, many
things be said in the times of peace are such as hindrance to its efforts that their utterance will not be
endured so long as men fight and that no court could regard them as protected by any constitutional
right.45 This test resembles bad tendency test in permitting punishment of speech that produces
harmful effects, but it imposes more exacting criteria for determining harm. The clear and present
danger test requires the Government to demonstrate that the specific speech in the context in which it
has occurred, created a danger to the achievement of permissible Government objective and that the
likelihood of harm was substantial (clear) and proximate (present). But the doctrine did not hold the
field for long. In Whitney, the Supreme Court held that whenever the fundamental rights to free speech
and assembly are alleged to have been invaded, it must remain open to the defendant to present the
issue whether there actually did exist at the time clear danger, whether the danger, if any was
imminent and the evil apprehended one was so substantial as to justify the stringent restrictions
imposed by the legislature.
In Abrams v. United States ,46 it was observed, "But as against dangers peculiar to war, the principle of
the right to free speech is always the same. It is only the present danger of immediate evil or an intent
to bring it about that warrants Congress in setting a limit to the expression of opinion where private
rights are not concerned. Congress certainly cannot forbid all efforts to change the mind of the
country. Now nobody can suppose that the superstitious publishing of a silly leaflet by an unknown
man, without move would present any immediate danger that its opinion would hinder the success of
the Government arms or have any appreciable tendency to do so. Publishing those opinions for the
very purpose of obstructing, however might indicate a greater danger and at any rate would have the
quality of an attempt..." Finally it was concluded thus: "...I think that we should be eternally vigilant
against attempts to check the expression of opinions that we loathe and believe to be fraught with
death, unless they so "imminently threaten" immediate interference with the lawful and pressing
purpose of the law that an immediate check in required to save the country."
In Dennis v. US ,47 the Court marked a foundational shift from clear and present danger test. In that
case, the Supreme Court upheld a conviction of several Communist Party leaders for conspiring to
advocate the overthrow of the Government. The case arose as an aftermath of Second World War
and at a time when there was cold war between the US and Soviet Union. The Court asserted that the
situation in the case required a reformation of clear and present danger test. The Court said that in
each case the court must ask whether the gravity of the evil, discounted by its improbability, justifies
such invasion of free speeches is necessary to avoid danger. The Court said that clear and present
danger test offered too much protection--the words cannot mean that before Government may act, it
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must wait until the "putsch" is about to be executed and plans have been laid and signal is awaited."
The clear & present danger test was sought to be reconciled with community's need to deal with
perceived threat to its safety.
In Teminicello v. Chicago ,48 it was observed that the choice is not between order and liberty. It is
between liberty with order and anarchy without either. There is a danger that if the court does not
temper its doctrinaire logic with a practical wisdom, it will convert the constitutional bill of rights into a
suicide pact.
It was held in that case that the vitality of civil and political institutions in our society depends on free
discussion... It is only through free debate and free exchange of ideas that Government remains
responsive to the will of this people and peaceful change is effected. The right to speak freely and to
promote diversity of ideas and programmes is, therefore, one of the chief distinctions that sets us
apart from totalitarian regimes.
Accordingly a function of free speech under our system of Government is to invite dispute. It may
indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
condition as they are, or even stirs people to anger. Speech is often provocative and challenging. It
may strike prejudices and preconceptions and have profound unsettling effects as it presses for
acceptance of an idea. That is why freedom of speech to though not absolute... is nevertheless
protected against censorship or punishment, unless shown likely to produce a clear and present
danger of a serious substantive evil that rises far above public inconveniences, annoyance, or unrest.'
In Hary Bridges v. State of California ,49 it was observed that free speech and fair trade are the two
most cherished values of our civilization and it would be a trying task to choose between them. It was
emphasised that a public utterance or publication is not to be denied the constitutional protection of
freedom of speech and press merely because it concerns a judicial proceeding still pending in the
courts, upon the theory that in such a case it must necessarily tend to obstruct the orderly and fair
administration of justice.(per JUSTICE BLACK). But in the dissenting note, it was observed that 14th
Amendment does not forbid a State to continue the historic process of prohibiting the expressions
calculated to subvert a specific exercise of judicial power. Impartial accomplishment of justice is not an
abridgment of freedom of speech or the press, as these phases of liberty have hereto, before been
conceived even by stoutest libertarians. These liberties depend upon an untrammelled judiciary whose
passions are not even unconsciously aroused and whose minds are not distorted by extra judicial
consideration. (JUSTICE FRANK further with JUSTICE STONE & JUSTICE ROBERTS).50
In Whitney v. California ,51 it was observed thus: "Those who won our independence believed that the
final end of the state was to make men free to develop their faculties... They believed liberty to be the
secret of happiness and courage to be secret of liberty. They believed that the freedom to think as you
will and to speak as you think are means indispensable to the discovery and spread of political truth;
that without free speech and assembly discussion would be futile ... that public discussion is a political
duty, and that this should be a fundamental principle of the American Government".
But in the absence of such overriding social interests, unorthodox ideas, controversial ideas, even
ideas hateful to the prevailing climate of opinion, have the full protection of the guarantee of 'freedom
of speech and expression'--52
"... Opinion is free and conduct alone is amenable to law". 53
It follows that literature containing "nothing of any possible value to society" is "as much entitled to
protection as the best of literature".54
[As to freedom of the Press, see post].
U.K.
B) England.--The right of freedom of discussion like all other individual rights, is, in England, not based
on any declaration embodied in a constitutional document, or in any particular rule of statute or
common law,--but is based on the ordinary rule of law that no man is to be punished except for a
distinct breach of the law. Commenting on Art. 10 of the European Convention (already extracted), the
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court said that freedom of political speech is a core value of our legal system. Without it, rule of law
cannot be maintained.55
In Attorney General v. Times Newspaper Ltd .,56 it was observed, "Freedom of expression, as learned
writers have observed, has our broad social purposes to serve: (1) it helps individual to attain self-
fulfilment, (2) it assists in the discovery of truth' (3) it strengthens the capacity of an individual in
participating in decision-making; (4) it provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change. All members of society should be
able to form their own beliefs and communicate them freely to others. In sum, fundamental principle
involved here is the people's right to know. Freedom of speech and expression should, therefore,
receive a generous support from all those who believe in the participation of people in the
administration".
In R v. Secretary of State for Home Dept. exparte Simms ,57 the Court emphasised freedom of
expression in informing debate as a safety valve to encourage consent and as a brake on the abuse
of power. Democracy can only flourish in circumstances where a free press with access to
Government proceedings can offer information and comment and which the public has a right and
perhaps a duty to receive. Free expression requires not only the right to criticise Government and
challenge orthodoxy, but also fair opportunity at election and other public debates.
The importance of freedom of speech before the Human Rights Act, 1998 is stated thus: "Freedom of
expression is, of course, intrinsically important, it is valued for its own sake. But it is well recognised
that it is also instrumentally important. It serves a number of objectives. (1) It promotes the self-
fulfillment of individuals in society. (2) In the famous words of Holmes J. (echoing JOHN STUART
MILL) the best truth is the power of the thought to get itself accepted in the competition of the
market.58(3) Freedom of speech is the life-blood of democracy. The free flow of information and ideas
informs political debate. It is a safety valve; people are more ready to accept decisions that go against
them if they can as principle seek to influence them. It act s as a brake on the abuse of power by
public officials. It facilitates the exposures of errors in the governance and administration of justice of
the country.59 Freedom of Press facilitates "the development of a capacity for tolerance". 60 A capacity
for tolerance weakens a general bias against receiving or acknowledging new ideas. It is particularly
valuable as a means of keeping the peace in large and complex societies containing people with
varied beliefs and interests.61
On legal status of freedom of expression, learned author JOHN ALDER, on the basis of case-law says
that freedom of speech and expression "has a special high status". 62 In AG v. Guardian Newspaper 63
one of the learned Judges characterised freedom of speech and expression as "the primary
freedom".64
Learned author JOHN ALDER also says that some forms of speech are "more worthy than others".
For example, political speech is favoured over "artistic and commercial speech". In R v. Secretary of
State ex parte Simms ,65 a prisoner was held entitled to have access to a journalist in order to publicise
his claim that he was wrongly convicted. Court said that he would not have had such access to
indulge in pornography or even in a political or economic debate. Another learned Judge in that case
said regarding the wish of the prisoner to challenge his conviction that it was "not easy to conceive of
more important function which free speech might fulfil". 66
In Derbyshire County Council v. Times Newspapers ,67 it was observed that freedom of expression is
an important legal principle which is vital to a democratic system of Government.
As Odgers puts it,--

"Our present law permits any one to say, write, and punish what he pleases: but if he makes a bad use of this
liberty he must be punished. If he unjustly attacks an individual, the person defamed may sue for damages; if,
on the other hand, the words be written or printed, or if treason or immorality be thereby indicated, the offender
can be tried for the misdemeanour either by information or indictment."
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In short, freedom of speech or discussion consists in the right of a citizen to speak or write what he
chooses, provided the law is not infringed (Dicey).68'Law,' of course, includes both common law and
statute law. In the result, a British Subject may speak or write anything he likes so long as he does not
violate the common law of (a) defamation, (b) sedition, (c) blasphemy, (d) obscenity, or (e) contempt of
Court; or the provisions of any statute, such as the Official Secrets Act s, 1911-39, the Public Order
Act, 1936 (see post).
Eire
(C) Section 40(6)(1) of the Constitution of Eire (Ireland) says:
"The State guarantees liberty for the exercise of the following rights, subject to public order and
morality:--
(i) The right of the citizens to express freely their convictions and opinions.
"The education of public opinion being, however, a matter of such grave import to the common good,
the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the
cinema, while preserving their rightful liberty of expression, including criticism of Government policy,
shall not be used to undermine public order or morality or the authority of the State. The publication or
utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in
accordance with law".69
West Germany
(D) West Germany x2014;Article 5 of the West German Constitution (1948) says--

1.  Everyone shall have the right freely to express and to disseminate his
opinion though speech, writing, and illustration and, without hindrance, to instruct himself
from generally accessible sources. Freedom of the press and freedom of reporting by
radio and motion pictures shall be guaranteed. There shall be no censorship.

1.  These rights shall be limited by provisions of general laws, legal regulations
for protection of juveniles, and by the right of personal honour.

1.  Art and science research and teaching shall be free. Freedom shall not
absolve from loyalty to the Constitution."
Japan
(E) Japan.--Article 21 says:
"Freedom of assembly, association, speech, and press and all other forms of expression are
guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication
be violated."
Malta
(F) Malta.--Section 14(1) of the Malta (Constitution) Order in Council, 1961 provides:
"Except with his own consent, no person shall be hindered in the enjoyment of his freedom of
expression, that is to say, freedom to hold opinion and to receive and impart ideas and information
without interference, and freedom from interference with his correspondence.
It has been held that a circular prohibiting the entry of Government employees into the hospitals and
departments with newspapers which are condemned by the ecclesiastical authorities, for the purpose
of holding political discussions, contravened the above guarantee of freedom of expression, 70 which
included the freedom to impart ideas and information without hindrance. 71
Namibia
(G) Namibia.--(Adopted in February 1990)--Article 21 says: (1) All persons shall have right to (a)
freedom of speech and expression, which shall include freedom of press and other media; (b) freedom
 11

of thought, conscience and belief which shall include academic freedom in institutions of higher
learning.
Article 22: Limitation upon Fundamental Rights and Freedom--Whenever or wherever in terms of the
Constitution the limitation of any fundamental rights or freedoms contemplated by the chapter is
authorised, any law providing such limitation shall; (a) be of general application, shall not be aimed at
a particular individual (b) specify the ascertainable extent of such limitation and identify the article or
articles in which authority to enact such limitation is claimed to rest.
Singapore
(H) Singapore.--(Adopted in 16-9-1963)--Article 14 Freedom of Speech, Assembly and Association:

2)  Subject to clauses (2) and (3), (a) every citizen of Singapore has the right to
freedom of speech and expression; (b) all citizens of Singapore have the right to
assemble peaceably and without arms; (c) all citizens of Singapore have the right to
form associations.

2)  Parliament may be law impose (a) on the rights conferred in clause 1(a),
such restriction as it considers necessary or expedient in the interest of the security of
Singapore or any part thereof, friendly relation with other countries, public order or
morality and restriction designed to protect the privileges of Parliament or to provide
against contempt of Court defamation or incitement to any offence. (b) on the rights
conferred by Clause (1)(b), such restrictions as it considers necessary or expedient in
the interest of the security of Singapore or any part thereof or public order and (c) as the
right conferred by clause (1)(c), such restrictions as it considers necessary or expedient
in the interest of the security of Singapore or any part thereof, public order or morality.

2)  Restriction as the right to form association conferred by clause (1)(c) may
also be imposed by any law relating to labour or education.
South Africa
(I) South Africa.--(Adopted on 8.5.1996 in force since 7.2.1997) Article 16--

3)  Everyone has the right to freedom of expression, which includes (a) freedom
of the press and other media; (b) freedom to receive or impart information or ideas; (c)
freedom of artistic act ivity; and (d) academic freedom and freedom of scientific
research.

3)  The right in sub-section (1) does not extend to--(a) propaganda for war; (b)
incitement for imminent violence or; (c) advocacy or hatred that is based on race
ethnicity, gender, or religion and that constitutes incitement to cause harms."
South Korea
(J) South Korea.--(Adopted on 17-7-1948)--Article 21: Speech, Press, Assembly, Association, Home
or, Public
Moods:
(1) All citizens enjoy the freedom of speech and the press and of assembly and association. (2)
Licensing or censorship of speech and the press and licensing of assembly and association may not
be recognised. (3) The standard of news service and broadcast facilities and matters necessary to
ensure the functions of newspapers is determined by law. (4) Neither speech or the press may violate
the honour or rights of other persons not undermine public morals or social ethics. Should speech or
the press violates the honour or rights of other persons, claims may be made for the damage resulting
therefrom.
Switzerland
 12

(K) Switzerland.--(Adopted on 18-12-1998--In force since 1-1-2000) - Articles 16-17.

Article 16--Freedom of Opinion and Information.--(1) The freedom of opinion and information is
guaranteed. (2) Every person has the right to form, express and disseminate opinions freely. (3) Every
person has the right to receive information freely, to gather it from generally accessible sources, and
to disseminate it.
Article 17--Freedom of Media.--(1) The freedom of the press, radio, television and other forms of
public broadcasting of productions and information is guaranteed. (2) Censorship is prohibited. (3)
Editorial secrecy is guaranteed.
Canada
(L) Canada.--(Adopted in 1982).
Title (1): (1) Limitation of Rights.--The Canadian charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
Title (2): (2) Freedom of Religion, Speech, Association.--Everyone has the fundamental freedom (a)
freedom of conscience and religion (b) freedom of thought, belief, opinion and expression, including
freedom of the press and other means of communication. (c) Freedom of peaceful assembly; and (d)
Freedom of association.
Sri Lanka
(M) Sri Lanka (Ceylon).--Section 18(1)(g) of the Constitution of Sri Lanka (1972) says--
"In the Republic of Sri Lanka--
(g) every citizen shall have the freedom of speech and expression, including publication....."
But this declaration is subject to various limitations:

2a)  All existing laws shall survive notwithstanding inconsistency with

fundamental rights [Art. 18(3)].

2b)  The reasonableness of restrictions imposed upon fundamental rights by the

Le-gislature shall not be open to judicial review. Sub-section (2) of s. 18 provides--

"The exercise and operation of the fundamental rights and freedoms provided in this Chapter shall be subject
to such restrictions as the law prescribes in the interests of national unity and integrity, national security,
national economy, public safety, public order, the protection of public health or morals or the protection of the
rights and freedoms of others or giving effect to the Principles of State Policy, set out in section 16."

2c)  Even outside these specified grounds of restriction, there is no scope for
judicial review of a law. Before a Bill is passed, its constitutionality may be raised before
the Constitutional Court, whose decision shall be final [Art. 54]. 72
European Convention
(N) European Convention.--Article 10 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms provides--

4)  Everyone has the right to freedom of expression. This right stall include to
hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television and cinema enterprises.
 13

4)  The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, condition, restriction or penalties, as
are prescribed by law and are necessary in a democratic society, in the interest of
national security, territorial integrity, or public safety for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in confidence or for
maintaining the authority and impartiality of the judiciary."
In Handyside v. U.K .,73 it was stated "Freedom of expression, as secured in paragraph 1 of Art. 10,
constitutes one of the essential foundations of a democratic society and one of the basic condition for
its progress and for each individual's self-fulfillment. Subject to paragraph (2), it is applicable not only
to 'information' and 'ideas' that are favourably received or regarded as in offensive or as a matter of in-
difference, but also to those that offend, shock or disturb. Such are the demands of that pluralism,
tolerance and broadmindedness without which there is no democratic society. 74 In Handyside's case,
the main issue was whether the action taken by the authorities "was necessary" in a democratic
society. In that case, the authorities seized and confiscated a book "The Little Red School Book"
published in England which was already published in other European countries. The court said that
merely because no act ion was taken in other countries, it cannot be said that the action taken in
England is not correct since safeguarding of moral standards differs between contracting States and it
is recognised that various individual countries are best able to judge the moral requirements of their
own citizens.
In R (Rushbridger) v. A.G ., it was observed that freedom of political speech is a core value of our
legal system. Without it the rule of law cannot be maintained. 75
2 See T.M. Cooley, A Treatise on the Constitutional Limitations, 1st Indian Edn., 2005.

3 T.M. Cooley, A Treaties on the Constitutional Limitations, 1st Indian Edn., 2005, Chapter XII, "Liberty of Speech and
of the Press", p. 422.

4 Abrams v. United States, 250 US 616 (1919).

5 United States v. Schwimmer, 279 US 644 (1929).

6 See Massey, American Constitutional Law, 2nd Edn. 2005, Chapter 9 titled "Free Expression Ideas", pp. 798-99.

7 See Stone, Seidman, Eienstein, Tushnet and Karlan on Constitutional Law, 5th Edn., 2005, Chapter VII, "Freedom of
Expression", pp. 1058-59.

8 Craig R. Ducat, Constitutional Interpretation, 8th Edn. 2002, pp. 775-776.

9 SeePalko v. Connecticut, (1937) 302 US 319.

10 Thornhill v. Alabama, (1940) 310 US 88; also Brandeis J. in Whitney v. California, (1927) 278 US 357 (375).

11 Thornhill v. Alabama, (1940) 310 US 88; also Brandeis J. in Whitney v. California, (1927) 278 US 357 (375).

12 Palko v. Connecticut, (1937) 302 US 319.

13 Schneider v. Irvington, (1939) 308 US 147 (160).

14 Terminiello v. Chicago, (1949) 337 US 1; Stromberg v. California, (1931) 283 US 359 (369).

15 Associated Press v. U.S., (1945) 326 US 1.

16 Thomas v. Collins, (1944) 323 US 516 (545), JACKSON, J.

17 West Virginia State Board v. Barnette, (1942) 319 US 624 (641), JACKSON, J.

18 Abrams v. U.S., (1919) 250 US 616 (630). [This view cannot be adopted in India by reason of the words 'Unity of the
Nation' in the Preamble to the constitution].

19 Roth v. U.S., (1956) 354 US 476.

 14

20 Abrams v. U.S., (1919) 250 US 616 (630). [This view cannot be adopted in India by reason of the words 'Unity of the
Nation' in the Preamble to the constitution].

21 Abrams v. U.S., (1919) 250 US 616 (630). [This view cannot be adopted in India by reason of the words 'Unity of the
Nation' in the Preamble to the constitution].

22 West Virginia State Board v. Barnette, (1942) 319 US 624 (641), JACKSON, J.

23 Abrams v. U.S., (1919) 250 US 616 (630). [This view cannot be adopted in India by reason of the words 'Unity of the
Nation' in the Preamble to the constitution].

24 Thomas v. Collins, (1944) 323 US 516 (545), JACKSON, J.

25 Douglas v. Jeanette , (1943) 319, 310 US 88.

26 See Justice Black, A Constitutional Faith, 1968 Edn., pp. 45-46.

27 See Craig R. Ducat, Constitutional Interpretation, 8th Edn. 2002, pp. 797.

28 Thornhill v. Alabama, (1940) 310 US 88; see alsoBrandeis J. in Whitney v. California, (1927) 278 US 357 (375).

29 Roth v. U.S., (1956) 354 US 476; Schenck v. U.S., (1919) US 47 (52); Abrams v. U.S., (1919) 250 US 616;
Beauharnis v. Illinois, (1952) 343 US 250 (266); Near v. Minnesota, (1931) 293 US 697 (715).

30 Schenck v. U.S., (1919) US 47 (52); Abrams v. U.S., (1919) 250 US 616.

31 Beauharnis v. Illinois, (1952) 343 US 250 (266); Near v. Minnesota, (1931) 283 US 697 (715).

32 Reynolds v. U.S., (1978) 98 US 145; Winters v. N.Y., (1948) 333 US 507 (511, 518).

33 Bridges v. California, (1941) 341 US 252 (270).

34 Chaplinsky v. New Hampshire, (1942) 315 US 568. But seeRAV v. City of St. Paul, (1992) 505 US 377; Goodling v.
Wilson, (1972) 405 US 518; Lewis v. New Orleans, (1972) 408 US 913; Texas v. Johnson, (1989) 491 US 397.

35 Cox v. New Hampshire, (1941) 312 US 569 (574); Gitlow v. N.Y., (1925) 168 US 652.

36 De Jonge v. Oregon, (1937) 290 US 353; Frohwerk v. U.S., (1919) 246 US 204 (206).

37 Schenck v. U.S., (1919) US 47 (52); Abrams v. U.S., (1919) 250 US 616.

38 Schenck v. U.S., (1919) US 47 (52); Abrams v. U.S., (1919) 250 US 616.

39 See RAV v. City of St. Paul, (1992) 505 US 377.

40 Chaplinsky v. New Hampshire, (1942) 315 US 568. See also Street v. New York, 394 US 576 (1969); Gooding v.
Wilson, 405 US 518 (1972); Rosenfield v. New Jersey, 408 US 901 (1972); Lewis v. New Orleans, 408 US 913 (1972);
Brown v. Oklahoma, 408 US 914 (1972); Novwell v. Cincinnatti, 414 US 14 (1973); Hess v. Indiana, 414 US 105 (1973);
City of Houston v. Hill, 482 US 451 (1987).

41 Schenck v. United States, 249 US 47 (1919).

42 Cantwell v. Connecticut, 310 US 296.

43 Beauharnis v. Illinois, (1952) 343 US 250 (266); Near v. Minnesota, (1931) 283 US 697 (715).

44 Schenck v. United States, 249 US 47. See also Whitney v. California, 274 US 357 (1927).

45 See also Abrams v. United States, 250 US 616 (1919).

46 Abranus v. United States, 250 US 616 (1919) (supra).

47 (1951) 341 US 494.

48 Teminicello v. Chicago, 337 US 1.

49 Hary Bridges v. State of California ,(1941) 86 L.Ed 192.

 15

50 See alsoJohn D. Pennekamp v. State of Florida, (1945) 90 L.Ed (1295); Nebraska Press Association v. Hugh
Stuart, (1976) 49 L.Ed. 2nd 683.

51 Whitney v. California, 247 US 214.

52 Roth v. U.S., (1956) 354 US 476 (484).

53 Mutual Film Corpn. v. Industrial Corpn.,(1915) 236 US 230.

54 Winters v. N.Y., (1948) 333 US 507 (518).

55 R (Rushbridger) v. AG, (2003) 3 All ER 784.

56 Attorney General v. Times Newspaper Ltd., (1973) 3 ALL ER 54.

57 (2000) 2 AC 115.

58 Abrams v. U.S., 250 US 616 (1919).

59 R. v. Secretary of State, (1999) 3 All ER 400; See alsoA.G. v. Guardian Newspapers Ltd., (1988) 3 All ER 545; A.G.
v. Guardian, (1987) 3 All ER 316.

60 The Tolerance Society 1990 - Columbia Law Review 90 (1) : 979.

61 See John Alder, Constitutional & Administrative Law, 6th Edn. at p. 479.

62 SeeAG v. Guardian Newspapers, (1987) 1 WLR 1248; Derbyshire County Council v. Times Newspapers Ltd., (1993)
1 All ER 1011; R v. Secretary of State for Home Dept. exparte Simms, (1999) 2 AC 115.

63 (1987) 1 WLR 1248.

64 See alsoMcCartan-Turkington Breen v. Times Newspapers Ltd., (2001) 2 AC 277.

65 (2000) 2 AC 115.

66 See alsoCampbell v. MGN, (2004) 2 All ER 995; R British American Tobacco UK Ltd. v. Secretary of State for
Health, (2004) EWHC 2493. See John Alder, Constitutional & Administrative Law, 6th Edn. at p. 480.

67 (1993) AC 534 : (1993) 1 All ER 1011 (supra).

68 Dicey, Law of the Constitution, 10th Edn., p. 246; Cf. R. v. Aldred, (1909) 22 Cox CC 1; de Smith, Constitutional &
Administrative Law, 1989, pp. 482 ff.; Hood Phillips, 1987, pp. 531 ff; Wade & Bradley, 1985, pp. 501 ff.

69 Brian Doolan, Constitutional Law in Ireland, 1984 pp. 124 ff.

70 Olivier v. Buttigieg, (1966) 2 All ER 459 (466) PC.

71 Olivier v. Buttigieg, (1966) 2 All ER 459 (466) PC.

72 See also s. 2(b) of the Canadian Charter, 1982 [Retail Union v. Dolphin, (1986) 33 DLR (4th) 174 (185) 1SC ; s.
36(1) of the Constitution of Nigeria, 1979 [Nigerian Union v. A.G., (1986) LRC (Const.) 1 (15); Ukaegbu v. A.G., (1985)
LRC (Const.) 867 (879 ff)].

73 Handyside v. U.K., (1979) 1 EHRR 737.

74 See also The Sunday Times v. U.K. (No. 2), (1992) 14 EHRR 229.

75 R (Rushbridger) v. A.G., (2003) 3 All ER 784 -- a case under Art. 10 of European Convention.

INDIA
Need for Freedom of Speech and Expression in a Democratic Country
As historian Bury76 has observed, freedom of expression is "a supreme condition of mental and moral
progress."
In the words of the American Supreme Court,--it is
 16

"absolutely indispensable for the preservation of a free society in which government is based upon the consent
of an informed citizenry and is dedicated to the protection of the rights of all, even the most despised
minorities,"77"...the only kind of security system that can preserve a free government--one that leaves the way
wide open for people to favour discuss, advocate, or incite causes and doctrines however obnoxious and
antagonistic such views may be to the rest of us."78"The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will of the people and that changes may be
obtained by lawful means ... is a fundamental principle of our constitutional system.79

The right to freedom of speech and expression has been described as "the touchstone of individual
liberty. "...the matrix, the indispensable condition of nearly every form of freedom". 80It was further
observed "With rare aberrations a pervasive recognition of that truth can be traced in our history,
political and legal. So it has come about that the domain of liberty, withdrawn by the Fourteenth
Amendment from encroachment by States, has been enlarged by latter day judgments to include
liberty of the mind as well as liberty of act ion. The extension became, indeed, a logical imperative
when once it is recognised, as long ago it was, that liberty is something more than exemption from
physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if
oppressive and arbitrary, may be overridden by the court". (per JUSTICE CARDOZO)
Freedom of Association is not one of the rights expressly protected by the American Constitution, yet
the right has been recognised as part of freedom of expression by the First Amendment.
In NAACP v. Alabama ,81 it was held that--

"Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably
enhanced by group association, as this court has more than once recognized by remarking upon the close
nexus between freedom of speech and assembly. It is beyond debate that freedom to engage in association
for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process
Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether
the belief sought to be advanced by association pertains to political, economic, religious or cultural matters,
and State action which may have the effect of curtailing the freedom to associate is subject to the closest
scrutiny".

In the same strain did SHASTRI J. of our Supreme Court observe in Romesh Thappar's case:82

"...freedom of speech and of the press lay at the 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 risks of abuse. But the framers of the
Constitution may well have reflected, with Madison who was the leading spirit in 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".83

"Free speech is the foundation of a democratic society. A free exchange of ideas, dissemination of
information without restraints, dissemination of knowledge, airing of different view points, debating and
forming one's own views and expressing them, are the basic ideas of a free society. This freedom
alone makes it possible for people to formulate their own views and opinions on a proper basis and to
exercise their social, economic and political rights in a free society in an informed manner. Restraints
on this right have been jealously watched by courts. 84
"The democracy is a Government by the people via open discussion. The democratic form of
Government itself demands by its citizens an act ive and intelligent participation in the affairs of the
community... The democracy can neither work nor prosper unless people go out to share their
views".85 In a similar way, JUSTICE BHAGWATI in Maneka Gandhi v. UOI ,86 said:

"Democracy is based essentially on free debate and open discussion, for, that is the only corrective of
Government action in a democratic set up. If democracy means Government of the people, by the people, it is
obvious that every citizen must be entitled to participate in the democratic process and in order to enable him
 17

to intellectually exercise his right of making a choice, free and general discussion of public matters is
absolutely essential".

Freedom of thought and expression and the freedom of the press are not valuable freedoms in
themselves, but are basic to a democratic form of Government which proceeds on the theory that the
problems of the Government can be solved by the free exchange of thought and by public discussion
of the various issues facing the nation ... This right is one of the pillars of individual liberty--freedom of
speech, which our Constitution has always use failing by guarded. 87 In a little more emphatic way, the
Supreme Court in a later judgment said:

"The freedom of speech is the bulwark of democratic Government. This freedom is essential for proper
functioning of democratic process. Freedom of speech and expression is regarded as the first condition of
liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other
liberties. It is mother of all other liberties. Freedom of speech plays a crucial role in the formation of public
opinion on social, political and economic matters. It has been described as a "basic human right", a natural
right and the like. With the development of law in India, the right to freedom of speech and expression has
taken within its ambit the right to receive information as well as the right of Press. The Framers of Constitution
of India , in unambiguous terms, granted the right to freedom of speech and expression and the right to
assemble peacefully and without arms. This gave to the citizens of the country a very valuable right which is
the essence of any democratic system. There could be no expression without these rights. Liberty of thought
enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people
rests on liberty of thought and expression. Placed as the angles of a triangle, thought and expression would
occupy the two corner angles on the baseline while belief would have to be placed at the upper angle.
Attainment of the Preambular liberties is eternally connected to the liberty of expression".88

In that case, the Supreme Court also said that the State has a duty to make available safe
environment for the fruitful enjoyment of that right. In an earlier case, it was held that in a vibrant
democracy like India, public discussion and debate on social issues are required and are necessary
for smooth functioning of a healthy democracy. Discussions on social issues bring awareness which is
required for effective working of the democracy. In fact when there is public discussion and there is
some dissent in some issues, an informed and better discussion could be taken which becomes a
positive view and it helps the society to grow.89
A society which adopts openness as a value of overarching significance not only permits its citizens a
wide range of freedom of expression, but also goes further to act ually open up the deliberative
process of the Government itself to the sunlight of public scrutiny. 90
A provision for negative voting, while protecting such voter's secrecy, gives the voter an opportunity to
express disappointment or disapproval with the kind of candidates being put up by political parties.
Provision for negative voting is necessary to a voter to express his opinion and forms part of
fundamental right to speech and expression. Absence of such a provision compels the voter to accept
the candidate, which they do not approve. Such a provision will enable the political parties to accept
the will of the people bringing systematic change ultimately fielding candidate of integrity. 91 It was held
therein that a provision for negative voting can increase voter's participation in democracy.
The State is empowered to forfeit every copy of any book, document, etc. which contains scurrilous
and derogatory remarks, which in the opinion of State, can lead to violence and disharmony among
people under s. 95 of CrPC . But the said power interferes with fundamental right to speech and
expression. Hence before exercising the power under s. 95 of CrPC , the Government has to
express its opinion based on detailed facts and how the opinion is formed. A mere statement by
incorporating the words of statute is not sufficient. Even though the order is passed on subjective
satisfaction of Government, it must be based on objective materials which must be evident from the
order.92
In Secretary, Ministry of Information & Broadcasting, Government of India v. Cricket Association of
Bengal ,93 after citing Art. 10 of the European Convention on Human Rights, it was observed "The
freedom of speech and expression includes the right to acquire information and to disseminate it.
Freedom of speech and expression is necessary, for self-expression which is an important means of
free conscience and self-fulfilment. It enables people to contribute to debate on social and moral
 18

issues. It is the best way to find a trust model of anything, since it is only through it that the widest
possible range of ideas can circulate. It is the only vehicle of political disclosure so essential to
democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all
sorts. The right to communicate, therefore, includes right to communicate through any media that is
available, whether print or electronic or audio-visual, such as advertisement, movie, article, speech
etc."
Democracy is based essentially on free debate and open discussion, for that it is the only correction of
Government action in a democratic set up. If democracy means Government of the people by the
people, it is obvious that every citizen must be entitled to participate in the democratic process and in
order to enable him to intelligently exercise his right of making choice, free from general discussion of
public matters is absolutely essential. Manifestly, free debate and open discussion, the most
comprehensive sense, is not possible unless there is a free and independent press. Indeed the true
measure of the health and vigour of democracy is always to be found in its press. Look at its
newspapers--do they reflect diversity of opinions and views, do they contain expression of dissent and
criticism against governmental policies and act ions, or do they obsequiously sing the praises of the
Government or lionize or deify the ruler. The newspapers are an index of the true character of the
Government, whether they are democratic or authoritarian. 94 The expression "Freedom of speech and
expression" is construed to include fundamental right to know relevant antecedents of the candidates
contesting the elections and for having unpolluted healthy democracy, citizen voters should be well
informed. Right to participate by casting vote at the time of election would be meaningless unless
voters are well informed on all sides of the issues, in respect of which they are called upon to express
their views. A voter speaks out or expresses by casting a vote. Ballot is the instrument by which the
voter expresses his choice and for the said purpose right to be informed about the antecedents is
necessary.95 Voting is a formal expression of will or opinion by the person entitled to exercise the right
on the subject or issue in question and that right to vote means a right to exercise the right in favour or
against the motion or resolution. Such a right implies right to remain neutral as well. 96The decision
taken by a voter after verifying the credentials of the candidate either to vote or not is a form of
expression under Art. 19(1)(a) of the Constitution. The fundamental right under Art. 19(1)(a) read with
statutory right under s. 79(d) of the Representation of People Act is violated unreasonably if right to
vote effectively is denied and secrecy is breached. The casting of the vote is a facet of the right of
expression of an individual and the right is provided under Art. 19(1)(a) of the Constitution. 97
Where the Supreme Court sentenced four persons to death in the case relating to the murder of late
Prime Minister Rajiv Gandhi, members of some political organisations campaigned against the death
penalty, at a time when the President was considering their representation for pardon. It was
contended that when the highest Court has awarded the punishment, any campaign against the same
would amount to an act ion against the process of law and the same should be prohibited.
Rejecting the contention, it was held that every citizen has got a right to express his views and publish
the same through the medium of press. Every citizen has also got a right "to create the public opinion
in respect of any subject." and the same does not amount interference with the exercising of
presidential powers under Art. 72 of the Constitution for granting pardon. The campaigning against
death penalty would not amount to violation of principles of law and will not amount to unlawful
interference with the presidential power.98
In other words political democracy, the foundation of which is free election based on appeal to reason,
cannot function in a society where there is no freedom of speech. 99 It is thus indispensable for the
operation of the democratic system,100 which is based on "free debate and open discussion for that is
the only corrective of Government action,"101 and which envisages changes in the composition of
legislatures and governments.102
Gender identity, lies at the core of one's personal identity, gender expression and presentation and it
will have to be protected under Art. 19(1)(a) of the Constitution. A transgender's personality could be
expressed by the transgender's behaviour and presentation. State cannot prohibit, restrict or interfere
with a transgender's expression of such personality, which reflects that inherent personality. The
values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to
members of transgender community under Art. 19(1)(a) of the Constitution and State is bound to
 19

protect and recognise those rights. The freedom of expression guaranteed under Art. 19(1)(a) includes
freedom to express one's chosen gender identity through varied ways and means by way of
expression, speech, mannerism, clothing, etc. Self-identified gender can be expressed through dress,
words, action or behaviour or any other form. No restriction can be placed on one's personal
appearance or choice of dressing, subject to restriction contained in Art. 19(2) of the Constitution. 103
A photograph is an expression. Merely because a white man and a black woman are posing together
nude does not automatically follow that it is obscene; if that photograph has a real message to convey,
that is, to eradicate the evil of racism and apartheid in society and to promote love and marriage
between white skinned man and a black skinned woman. When such a photograph conveys a
message, it is a mode of expression and on that basis (photograph) criminal act ion cannot be taken
as if it is obscene. It violates the fundamental right of freedom of expression. 1 In Aveek Sarkar v. State
of West Bengal ,2 the Court affirmed an earlier dictum of the Supreme Court in Ajay Goswami v. UOI ,3
wherein it was held that commitment to freedom of speech and expression demands that it cannot be
suppressed unless the situation created by it is such that by allowing the freedom, community interest
is endangered. In Bobby Art International v. Om Pal Singh Hoon ,4 the Supreme Court said that in
democracy, it is not necessary that everyone should sing the same song. Freedom of expression is
the rule and it is generally taken for granted. Everyone has a fundamental right to form his own
opinion on any issue of general concerns. He can form an opinion and inform it by any legitimate
means. The democracy is a Government by the people via open discussion. If a film is
unobjectionable for public exhibition and cannot be constitutionally restricted under Art. 19(2), freedom
of expression cannot be suppressed on account of threat of demonstration and procession or threats
of violence. It is the duty of State to protect the freedom of expression since it is a liberty guaranteed
against the State.5 When a person simply states about large incidents of pre-marital sex and calling for
its acceptance by society, it is an expression of opinion which that person is entitled to make as a
matter of fundamental right, and especially when that statement does not provoke any sexual desire,
action cannot be taken against such statement on the ground that it is obscene. Any criminal act ion
taken consequent thereto is violative of freedom of speech and expression. 6
Meaning of Freedom of 'Speech' and 'Expression'
The words "speech" and "expression" may seem simple enough not to require any explanation. But no
word is perhaps too plain for the purpose of a legal interpretation in the Courts. 7

2i)  Freedom of expression means the right to express one's convictions and
opinions freely, by word of mouth, writing, printing, picture or in any other manner 8
(addressed to the eyes or the ears). It would thus include not only the freedom of the
press,9 but the expression of one's ideas by any visible representation, such as by
gestures and the like, by carrying banners and signs,10 and through the radio, cinema,
television and the like.11 It is an outward expression of ideas, beliefs and free conscience.
Speech is important even if the speech is not specifically about politics. The concept of
expression implies that every citizen is free to say or publish what he wants provided
that he does not trample upon the rights of others and this freedom could become a
mockery and delusory if every man was at liberty to publish what he preached. 12
Right to vote and freedom of voting is a species of freedom of expression. When a citizen disapproves
the candidate proposed by political parties, he can exercise his opinion by negative voting. It also
maintains secrecy.13
A transgender can express his identity through various ways and means by way of expression,
speech, mannerism, clothing and through dress, words, action or behaviour or any other form. 14 A
photograph of a naked white-man and naked black-woman lying together is a mode of expression
against racism i.e., to eradicate the evils of apartheid and racism. 15
National Anthem, National Flag and National Song are secular symbols of nationhood. They represent
the supreme collective expression of commitment and loyalty to the nation as well as patriotism for the
country.16
 20

A right to speech implies the right to remain silent. It implies freedom not to listen and not to be forced
to listen.17
The right to paint or sing or dance or write a poetry or literature is also covered by the term 'speech
and expression'.18 A threat of going on a hunger strike is form of protest and expression. 19

2ii)  It is not to be understood, however; that the freedom of speech and

expression includes the liberty to express or propagate one's own views only. It also
includes the right to propagate or publish the views of other people; otherwise this
freedom could not have included freedom of the press which is obviously included in it. 20

2iii)  Expression, naturally, presupposes a second party to whom the ideas are
expressed or communicated. In short, expression includes the idea of "publication" and
distribution21 or circulation22 as well as the right to receive the matter distributed 23 (but it
does not compel an unwilling listener to listen).24
As our Supreme Court has said--

"There can be no doubt that freedom of speech and expression includes freedom of
propagation of ideas, and that freedom is secured by freedom of circulation. Liberty of
circulation is an essential to that freedom as the liberty of publication. Indeed, without
circulation the publication would be of little value."25

2iv)  Freedom of speech and expression would thus include freedom to hold
opinions, to seek, receive and impart26 information and ideas, either orally, by written or
printed matter or by legally operated visual or auditory devices, such as the radio,
cinematograph, gramophone, loudspeaker, etc., In short, it is the freedom of
communication of one's ideas through any medium.
It is interesting to note that the American Supreme Court has held,27 reversing an earlier
opinion, that cinematograph is entitled to the guarantee of the freedom of speech,
because it;

"may affect public attitudes and behaviour in a variety of ways, ranging from direct espousal
of a political or social doctrine to the subtle shaping of thought which characterises all artistic
expression."28

Whether it is utilised for making profit or not is, therefore, immaterial in the present
context.29
The use of the vocal organs is, thus, not essential to constitute 'speech' within the
meaning of the First Amendment in the American Constitution and so does it include the
exhibition30 or salutation31 or of a flag; display of advertisements;32 carrying of banners.33
The protection of First Amendment, i.e., freedom of speech and expression has been
extended to "expressive conduct" or what is called "symbolic speech". Wearing black
armbands to protest American military involvement in Vietnam, 34 of a sit-in by blacks in a
"whites only" and to protest segregation,35 or if wearing of American military uniforms in a
dramatic presentation criticising American involvement in Vietnam 36 and picketing about
a wide variety of causes.37 In Barners v. Glen Theatre ,38 and City of Erie v. Pop's Adj ,39
nude dancing has been held to include an expressive conduct protected by First
Amendment, but which can be suppressed as the basis of "undesirable secondary
effects". Burning of Flag was held constituted an expressive conduct. 40
2v)  It includes the right not only to give but also to acquire and import ideas and
information from others about matters of common interest; 41 in short, the right to be
informed.
 21

2vi)  Freedom of speech, obviously, includes the freedom of discussion, and, in

the United States, it has been interpreted to include all that may be said to be covered
by 'freedom of expression'. Thus, freedom of speech has been interpreted to include
dissemination of knowledge, according to one's own ideas, so long as that does not
infringe the collective interests, or the object is not purely commercial.42 Thus, it has been
held that--(a) the State cannot levy a tax on the sale of religious literature from door to
door,43 or to prohibit it altogether;44(b) a Municipality cannot proscribe the distribution of
any literature on the streets, save purely commercial advertisement, 45 though it can enact
regulations in the interests of public safety, health and morality or to control obstruction
of traffic.46
But some restrictions are permitted to the guarantee under First Amendment because the expression
of particular ideas or items of information might cause harm to Government, to private individuals, or
to society in general. Speech, that may induce hearers or listeners to engage in unlawful conduct;
speech that "threatens" harm to others; speech that provokes a hostile audience response; and
speech that discloses confidential information.47
Freedom of expression which in many respects overlaps and coincides with freedom of speech has
manifold meanings. It need not and ought not to be confined to expressing something in words orally
or in writing. The act of manifesting by action or language is one of the meanings. Even a
manifestation of an emotion, feeling etc., without words would amount to expression. Communication
of emotion and display of talent through music, painting, etc is also a part of expression. Having
regard to the comprehensive meaning of the phrase "expression". "Voting" can be legitimately
regarded as a form of expression. Ballot is the instrument by which the voter expresses his choice
between candidates or in respect of preposition and his "vote" is his choice or election, as expressed
by his ballot. "Opinion expressed, resolution or decision carried, by 'voting' is one of the meanings
given to the expression "vote". The power of voter "speaks out or expresses by casting a vote" is apt
and well founded.48
'Freedom of Speech' means freedom to speak so as to be heard by others, and therefore, to convey
one's ideas to others. The very idea of freedom of expression necessarily connotes that what one has
a right to express may be communicated to others. Unless, therefore, the freedom guaranteed by Art.
19(1)(a) were read as confined to the right to speak to oneself or to express his ideas himself, which
obviously they could not mean, the guaranteed freedom would mean freedom to address others, and
of conveying to others one's ideas by printed word viz., freedom of circulation.49
Everyone has a fundamental right to form his opinion on any issue of general concern and he can
form and inform by any legitimate means only. The State cannot prevent open discussion and open
expression.50 It is a natural right and must be broadly construed to include to freedom to circulate one's
views by words of mouth or in writing or through audio-visual instrumentalities. 51 It was held therein
that the said right includes the right to exhibit the same in cinema halls or television, to have the same
published through any media, such as newspapers, magazines, hoardings, etc.
The Central Board of Film Certification (CBFC) cannot refuse to certify the film for public exhibition on
the ground the film in question is "full of glory visuals of violence and gruesome killings" and that
certain characters have definite resemblance with real life personalities. It was held that in a
democratic society every citizen has a right to speak and the right to know. Knowledge of the affairs of
governance and the invocation of peaceful forms of dissent is a necessary pre-condition to the
existence of a stable society formed of his formed citizens..." Artists, writers and play-wrights and film
makers are the eyes and ears of free society. They are the veritable lungs of a free society because
the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right
to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen
to speak. Our constitutional democracy guarantees the right to free speech and that right is conditional
upon the expression of views which may be palatable to mainstream though. 52
A demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is
then a communication of one's ideas to other to whom it is intended to be conveyed. It is in effect,
therefore, a form of speech or of expression, because speech need not be vocal, since signs made by
 22

a dump person would also be a form of speech. A demonstration may also take the form of an
assembly and even then the intention is to convey to the person or authority to whom the
communication is intended the feelings of the group which assembles. It follows that there are forms
of demonstration which could within the freedom guaranteed under Art. 19(1)(a). 53
Right of citizens to conduct procession and public meeting cannot be curtailed except on definite
reasons and not on mere surmises. Reasonable limitation can be put in the interest of integrity of
India. Necessary direction was given to police for traffic regulation and permit the demonstrators to
conduct procession and meeting in a peaceful manner. 54 The State has a duty to provide security and
protection to the persons who wish to attend an assembly at the invitation of the person who is
exercising his right to freedom of speech or otherwise. 55
The work of an artist is essentially creative and freedom of expression is an integral part of it. It is a
mere expression of creative talent which is part of freedom of expression. 56
A right to speech implies the right to silence. It implies freedom not to listen and not to be forced to
listen. The right comprehends the freedom to be free from what one desires to be free from. Free
speech is not to be treated as a promise to everyone with opinions and beliefs, to gather at any place
and at any time and express their views in any manner. Recognition of right to speech or expression is
recognition accorded to a human faculty. A right belongs to human personality and not to a mechanical
device. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot be
conceded the right under Article 19 (though it may be useful to man to express his faculties). 57 The
mirror image of the right to free expression is the right not to express ideas. Just as government
control of the content of expression is presumptively invalid, so is government compulsion of a
specified expression. Like other content based speech regulation, government compulsion to speak or
associate may be justified if the Government can prove that compulsion is the least restrictive means
to accomplish a compelling government interest that is unrelated to the forced expression of ideas.
Right to fly the National flag freely with respect and dignity is a fundamental right of a citizen within the
meaning of Art. 19(1)(a) being an expression and manifestation of his allegiance and feelings and
sentiments of pride for the nation. Union of India v. Naveen Jindal ,58 and the said right could be
regulated under Art. 19(2).
In Bijoe Emmanuel v. State of Kerala ,59 the school authorities punished some school children for not
singing National Anthem. The children belonged to a religious denomination "Jehovahs' witnesses",
which did not permit them to join any rituals, except their prayers to Jehovah, their God. However, the
children respected the Indian National Anthem by standing up when it was sung, and never showed
any disrespect. It was held that the act ion of school authorities in punishing the students for not
singing the National Anthem amounted to violation of Art. 19(1)(a) as the negative right, i.e., the right
to remain silent is implied 55 in the freedom of speech. In West Virginia State Board of Education v.
Barnett ,60 the State Board of Education adopted a regulation that required all teachers and pupils to
deliver a "stiff arm" flag salute, keeping the right hand raised with palm turned up with a pledge of
allegiance while the National Anthem was recited. Failure to conform resulted in expulsion, the
expelled child being deemed "unlawfully absent" and subjected to delinquency proceedings while his
parents or guardians were liable for prosecution, fine and imprisonment. The regulation was
challenged as violative of freedom of speech and expression and also on the ground that it violated
their religious freedom. Court said that compulsory flag salute and pledge requires affirmation of a
belief and an attitude of mind. To sustain the compulsory flag salute, court observed that courts are
required to say that a Bill of Rights which guards the individual's right to speak his mind, left it open to
public authorities to compel him to utter what is not in his mind. Court said that the very purpose of Bill
of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as legal principles to be applied by
the courts. The Court said that one's right to free speech may not be submitted to vote. Court
reminded that those who begin coercive elimination of dissent soon find themselves exterminating
dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. The Court
finally invalidated the regulation. Similarly, Court held that public authorities cannot constitutionally
require an individual in the dissemination of an ideological message by displaying it on his private
 23

property in a manner and for the express purpose that it be observed and read by the public, for, it is
violative of First Amendment.61
In West Virginia State Board of Education v. Barnett ,62it was held: "If there is any fixed star in our
Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act
their faith therein".
The phrase "speech and expression" used in Art. 19(1)(a) has broad connotation. The right to paint or
sing or dance or to write poetry or literature is also covered by the expression, because the common
basic characteristic of all these act ivities is freedom of speech and expression. 63
M.P. JAIN in Indian Constitutional Law64 has stated "freedom of speech is the bulwark of democratic
Government. The freedom is essential for the proper functioning of the democratic process. The
freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred
position in the hierarchy of liberties giving succour and protection to all other liberties. It has been truly
said that it is the mother of all other liberties".
Right to love and marry when the parties are adults cannot be prohibited when the parties can take an
independent decision thereon. To decide to get married on account to freedom of expression is
protected under Art. 19(1)(a). They are entitled to assemble peacefully and reside and settle
throughout the country is also guaranteed.65
But regulations under the 'police power' would not be tolerated by the Courts unless there is a fixed
standard prescribed for the application of the regulation. Thus, though an ordinance which barred from
the streets every soundtruck which emits 'loud and raucous noises' was upheld as valid, 66 the Court
held void an ordinance which prescribed that radio loudspeakers could be used or public
communication "only under permission obtained from the chief of the police".67
On the same ground, the Supreme Court has annulled a statute which made it an offence to deal in
printed matter 'devoted to be publication of criminal news or stories of deeds of bloodshed, lust or
crime'.68 It was held that the statute had failed to establish any adequate standard by which a person
could determine whether a particular publication had violated the statute. 69

1vii)  As has been held in the United States, freedom of speech and expression is
not confined to any particular field of human interest70 but assures the broadest exercise
of the right for religious, political, economic, scientific or informational ends, 71 including
dissemination of ideas or information relating to conditions of labour or causes of labour
disputes72 and has thus been held to support peaceful picketing 73 or solicitation by a
labour union of its members;74 assisting others seeking legal redress for infringement of
their rights, without offending the laws against champerty or the like. 75
For a Governmental regulation to be valid, however, it must be viewpoint neutral, that is, it must not
regulate conduct as a means of restricting the expression of particular ideas. In Texas v. Johnson ,76
the Court struck down the conviction of a political protestor who had violated Texas' flag-desecration
statute by burning American flag. According to Court's majority opinion, the flaw in the statute was that
it permitted the use of the flag to show support for the nation and its institution, but prohibited its use to
register dissent. Thus, the ban on flag desecration was not viewpoint neutral and hence violated the
First Amendment.
But in Hudgent v. N.L.R.B .,77 considered the right of union members to enter privately owned
shopping centre to picket a store located within the centre. It was held that the union members did not
have a First Amendment right to enter the shopping centre to advertise their strike. The constitutional
guarantee of free expression has no part to play in such cases.
In Frisby v. Shuttz ,78 the Supreme Court upheld the validity of the ordinance enacted prohibiting the
residential picketing that focus on and takes place in front of a particular residence. It was observed
that privacy of the home is of the highest order in a free and civilized society and even a solitary picket
can invade a residential privacy. In Hill v. Colorado ,79 a state legislation regulated speech related
 24

conduct within 100 feet of the entrance of any healthcare facility. The statute made it unlawful within
regulated areas for any person to "knowingly approach" within 8 feet of another person without that
person's consent "for the purpose of passing a leaflet or handbill to, displaying any sign to or engaging
in oral protest, education or counselling with such other person. This legislation affected abortion
opponents who challenged the same. The court upheld the legislation and held: "...We must, of
course, take account of the place to which the regulations apply in determining whether these
restrictions burden more speech than necessary. States and municipalities plainly have a substantial
interest in controlling the activity around certain public and private places. For example, we have
recognised the special governmental interest surrounding schools, court houses, polling places and
private homes. Additionally we previously have noted the unique concern that surrounds the health
care facilities. Persons who are attempting to enter health care facilities--for any purpose--are often in
particularly vulnerable physical and emotional conditions. The State has responded to its substantial
and legitimate interest in protecting these persons from unwarranted encounters, confrontations and
even assaults by enacting an exceedingly modest restriction on the speaker's ability to approach".
In other words, the freedom of expression is not confined to the realm of political or public affairs 80 but
must embrace 'all issues about which information is needed..... to enable the members of society to
cope with the exigencies of their period'.81
An advertisement is no doubt a form of speech, but its true character is reflected by the object for the
promotion of which it is employed. It assumes the attributions and elements of the act ivity under
Article 19(1), which it seeks to aid by bringing it to the notice of the public. When it takes the form of
commercial advertisement, which has an element of trade or commerce it no longer falls within the
concept of the freedom of speech for the object of propagation is not ideas - social, political or
economic or furtherance of literature of human thought. 82
The above decision was mainly based on relevance of the decision of the American Supreme Court in
Valentine v. F.J. Chrestensen ,83 the decision of the American Supreme Court was not followed in
William B. Cammarano v. United States 84 and Jeffrey Cole Bigelow v. Commonwealth of Virginia .85
Declaring that the decision in Hamdard Dawakhana case86 has only a very limited application, it was
declared "...The public at large has a right to receive the 'commercial speech'. Article 19(1)(a) not only
guarantees freedom of speech and expression. It also protects the rights of an individual to listen,
read and receive the said speech. So far as the economic needs of a citizen is concerned, their
fulfillment has to be guided by the information disseminated through the advertisement. The protection
of Art. 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of a
'commercial speech' may be having much deeper interest in the advertisement than the businessman
who is behind the publication. An advertisement giving information regarding a life saving drug may be
of much more importance to the general public than to the advertiser who may be having purely a
trade considerations. The Supreme Court held that the decision in Hamdard Dawakhana was in
respect of a prohibited drug for which there can be no freedom of speech, the principle of which could
not be applied generally to all commercial advertisements. 87 In Virginia State Board of Pharmacy v.
Virginia Citizen Consumer Council ,88 the Court rejected the proposition that to merit constitutional
protection a commercial message has to contain "material or clear" public interest. Observing that
speech does not lose its First Amendment protection because money is spent to project it, the court
saw both little to be gained in requiring commercial message to contain a "public interest element" and
the potential for serious difficulty if it were required to draw a line between "public interest" or
"important commercial advertising and the opposite kind". In that case, the court struck down a State
law that prohibited pharmacists from advertising to consumers the prices they charged on prescription
drugs. But the court made it clear that commercial speech doctrine did not extend to misleading,
deceptive or false message or to illegal transactions or commodities. Where the goods or service
offered for sale were neither illegal nor advertised in a misleading or deceptive manner, the
permissibility of State regulation would depend upon the interest it advanced. In Central Hudson Gas
& Electric Corpn. v. Public Service Commission, New York ,89 the Court said that Constitution accords
lesser protection to commercial speech than to other constitutionally guaranteed expression. The
protection available to particular commercial expression turns on the nature both of the expression
and of the governmental interests served by its regulation. The Court said that the First Amendment's
concern for commercial speech is based on the informational function of advertising. Consequently,
 25

there can be no constitutional objection to the suppression of commercial message that does not
accurately inform the public about lawful activity. The Government may ban forms of communication
more likely to deceive the public than to inform or commercial speech related to illegal act ivity. Court
said that for commercial speech to come within the protection of First Amendment, it at least must
concern lawful activity and not be misleading. In Lorillard Tobacco Co. v. Reilly ,90 the court applied the
same rule in regard to tobacco advertising as in Central Hudson's case. But laws which regulates the
"erection" of hoardings, i.e., commercial advertisement are permissible under law especially when the
advertisement itself is not regulated.91 A blanket restriction imposed on exhibiting commercial
advertisement on transport vehicles is valid since it is in the interest of road safety and in public
interest.92

1viii)  The truth of the utterances93 or the possible value to the society94 resulting
from their publication are not relevant for determining whether the right exists. It thus
extends to publications which do not instruct but merely entertain. 95
Of course, calculated falsehood fall outside the fruitful exercise of the right of free speech. 96
But so long as the speech or expression does not violate a social interest which the State has the
constitutional authority to protect, it cannot be suppressed simply because it is unpopular or embodies
even hateful or foolish ideas.97

1ix)  The right to criticise public men and measures, in other words, is not
confined to informed and responsible criticism but includes the freedom to speak
'foolishly and without moderation'.98 So long as the means are peaceful, the
communication need not meet 'standards of common acceptability'. 99
In short, freedom of expression means freedom not only for the thought we cherish, but also for the
thought that we hate.100 It thus involves a free trade in ideas,101 and postulates freedom of thought. The
mind must be ready to receive new ideas, to critically analyse and examine them and to accept those
which are found to stand the test of scrutiny and to reject the rest. 102
The Delhi High Court has held "It is not correct to say that an autobiography must relate to the person
concerned directly. An autobiography deals not only with the individual by whom it is written, but about
the people whom he claims to have interacted with. This is a matter between the author and the
people who want to read him. Letters cannot put as what an author should or should not write. It is a
judgment and discretion of the author."103
But whatever may be the freedom of speech and expression, law will not allow to make forcible entry
into other houses against his permission for the purpose of compelling the other to hear which he
does not desire, as he has a right to silence. Nothing in the constitution compels us to listen to or view
unwanted communication, whatever its merit. The individual has no right under the constitution to
send unwanted material into the home of another. 1 In Rowan v. Post Office Department ,2 the Court
said, "a mailer's right to communicate must stop at the mailbox of an unreceptive addressee. The
power of a householder under the statute is unlimited. Congress provided that sweeping power not
only to protect privacy but also to avoid possible constitutional question that might arise from vesting
discretionary power in a Government official". Right to speech does not require legislature to be
insensible to claim by citizen to comfort and convenience. To enforce such freedom of speech in
disregard to the rights of others would be hard and arbitrary in itself. 3
"No rights in an organised society can be absolute. Enjoyment of ones' right must be consistent with
the enjoyment of rights also by others. Where in a free play of social sources, it is not possible to bring
about a voluntary harmony, the state has to step in to set right the imbalance between competing
interest... A particular fundamental right cannot exist in insulation in a watertight compartment. One
fundamental right of a person may have to co-exist in harmony with the existence of another
fundamental right by others and also with reasonable and valid exercise of power by the State in the
light of Directive Principles in the interest of social welfare as a whole. 4In a subsequent decision, it was
observed that act ivities which disturb peace in the name of religion cannot be permitted in a civilized
 26

society as rights are closely related to duties. It was held that no religion prescribes that prayers
should be performed by disturbing the peace of others. 5
There has to be a balance and proportionality between the right and restriction on the one hand and
the right and duty on the other. It will create an imbalance, if undue or disproportionate emphasis is
placed upon right of a citizen without significance of duty. The true source of right is duty. When the
courts are called upon to examine the reasonableness of a legislative restriction on exercise of a
freedom, the fundamental duties enunciated under Art. 51-A are of relevant consideration. The State
has legitimate interest to regulate the freedom of speech and expression which liberty represents the
limits of the duty of restraint on speech and expression, not to utter defamatory or libellous speech or
expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to
dignity of person or reputation. Therefore, freedom of speech and expression is tolerated so long as it
is not malicious, libellous so that all attempts to foster and ensure orderly and peaceful public
discussion or public good should result from freedom of speech in market place. If such speech or
expression was untrue and so reckless to its truth, the speaker or author does not get protection of
constitutional rights. The restriction placed on fundamental right would have to be examined with
reference to the concept of fundamental duties and non-interference with liberty of others. 6 It has been
held that right to speech implies a right to silence. It implies freedom, not to listen and not to be forced
to listen. The right comprehends the freedom to be free from what one desires to be free from. It was
held that right is subordinate to peace and order. 7

1x)  The right to discuss public affairs includes the right to criticise the
Government, including its defence policy and the conduct of the Armed Forces. 8 A
municipality is a democratic institution of self-governance consisting of local people and
for the local people and by the local people. As a representative of the public it is the
duty of an elected representative to see that the public of his constituency is not
burdened with excessive or arbitrary tore. In certain situations, persons who hold elected
offices may feel that it is their duty to criticise the law either promulgated by the State or
local authority as illegal, arbitrary or ultra vires and against public interest and invite
people to come for discussion on the subject. A fair criticism of law and executive action
by an elected representative comes under freedom of speech and expression. 9
If one is allowed to say that the policy of the Government is good, another is with equal freedom
entitled to say that it is bad. Different views are allowed to be expressed by proponents and opponents
not because they are correct or valid but because there is freedom in this country for expressing even
different views on any issue.10
In a free country, public discussion is not only a matter of right but also a political duty,11 for, the
greatest menace to freedom is an inert people.12 Availability of different shades of opinion including
radical ones is allowed in freedom of expression. Widest dissemination of information by different
sources is necessary. Discussion forums enable exchange of ideas. In essence, the freedom of
expression embodies the right to know. But under our Constitution no right under Part III is absolute.
Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that
no single value, no matter exalted, can bear the full burden of upholding a democratic system of
Government. Underlying our Constitutional system are a number of important values, all of which help
to guarantee our liberties, "but in ways which sometimes conflict". Under our Constitution, probably, no
values are absolute. All important values, therefore, must be qualified and balanced against other
important and often competing values. This process of definition, qualification and balancing is as
much required with respect to the value of freedom of expression as it is for other values. 13
Free political discussion is essential for the proper functioning of a democratic Government. 14"Every
one in the land should be free to think his own thoughts, to have his own opinions and to give voice to
them, in public or in private, so long as he does not speak ill of his neighbour and free also to criticise
the Government or any party or group of people, so long as he does not invite anyone to violence". 15 In
Terminiello v. Chicago ,16 it was observed. "It is only through free debate and free exchange of ideas
that Government remains responsive to the will of the people and peaceful change is effected. In that
case, the court also said that a function of free speech under our system of Government is to invite
 27

dispute. It may indeed best serve its high purposes when it induces a condition of unrest, creates
dissatisfaction with condition that they are or even stirs people to anger. Speech is often provocative
and challenging. It may strike at prejudices and pre-conception and have profound unsettling effects
as it presses for acceptance of an idea. That is why freedom of speech "though not absolute" is
nevertheless protected against censorship or punishment unless shown likely to produce a clear and
present danger of a serious substantive evil that rises far above public inconvenience, annoyance or
unrest. In American Communication Association v. Douds ,17 it was held "that the greater danger to
democracy lies in the suppression of public discussion, that ideas and doctrines though harmful or
dangerous are best fought with words".
The State cannot prevent open discussion and open expression, however hateful to its policies.
Everyone has a fundamental right to form his own opinion on any issue of general concern. He can
form and inform by any legitimate means. Democracy is a government by people via open discussion.
The democratic form of government itself demands its citizens an act ive and intelligent participation in
the affairs of the community. The public discussion with people's participation is a basic feature and a
rational process of democracy which distinguishes it from other forms of government. A film criticising
Governments' reservation policy cannot be prohibited. 18 It was held therein that an open criticism of
Governments' policies and operation is not a ground for restricting expression. Our constitutional
democracy guarantees the right to free speech and that right is not conditional upon the expression of
views which may be palatable to mainstream thought. Dissent is the quintessence of democracy.
Hence, those who express views which are critical of prevailing social reality have a valued position in
the constitutional order. History tells us that dissent in all walks of life contributes to the alteration of
social reforms. Democracy is founded upon respect for their courage. Any attempt by the state to
clamp down on the free express of opinion must hence be frowned upon. 19 Reservation is a sensitive
social issue and in a vibrant democracy like India, public discussion and debates on such social
issues are required and are necessary for smooth functioning of a healthy democracy. Such
discussions on social issues bring in awareness which is required for effective working of the
democracy. In fact, when there is public discussion and there is some dissent on these issues, an
informed and better decision could be taken which becomes a positive view and helps the society to
grow. It is also well settled that in a democracy, it is not necessary that everyone should sing the same
song. Freedom of expression is the rule and it is generally taken for granted. 20 But an educational
institution has got freedom to prohibit political activities within college campus and forbid students from
organising or attending meetings other than official ones within college campus and the same is not
violative of Art. 19(1)(a).21
It was held that the right to freedom of speech and expression means right to express one's conviction
and opinion in any manner. When a person is talking on telephone, he is exercising his right to
freedom of speech and expression. Telephone tapping unless it comes within the grounds of
restriction under Art. 19(2), it would be violating of Art. 19(1)(a). 22 When a person enjoys a right under
Art. 19(1)(a), he must enjoy the same with very minimum inconvenience to the public at large. 23
On the other hand--

3i)  Like the other freedoms, Cl. (1)(a) refers to the common law right of freedom
of expression and does not apply to any right created by statute, e.g., the right to contest
an election, which is to be exercised subject to the restrictions imposed by statute. 24
Right to vote is a statutory right, but a right to know the background of a candidate who
contests an election is a fundamental right.25
In Ebrahim Sulaiman Sait v. M.C. Mohammed ,26it was held that s. 123-A of
Representative of Peoples Act is not subject s. 12 and hence incitement to violence is
not an ingredient of s. 123-A and hence do not violate Article 19(1)(a). It was observed
that persons have no fundamental right to get elected, and any candidate has to be a
candidate for election, they must observe the rules and if any candidate prefer to
exercise their right of speech outside the rules, the relevant provision of Representative
of Peoples Act do not stop them.
 28

A right to participate in a special meeting as well as to vote for such meeting is a

statutory right which flows from the relevant provision of the statute and it has nothing to
do with democracy.27
Since the right to contest an election is only a statutory right or the most a constitutional
right, but not a fundamental right, the statute can also prescribe the disqualification from
contesting the election. A provision that a candidate having more than two children, not
eligible to contest the election of Sarpanch in a Panchayat was held valid and not
discriminatory.28 A right to elect, fundamental though it is to democracy, is anomalously
enough, neither a fundamental right nor a common law right. It is pure and simple, a
statutory right. So is the right to be elected. So is the right to dispute an election. Outside
of statute, there is no right to elect, no right to be elected and no right to dispute an
election. Statutory election they are, and therefore, subject to statutory limitation. 29 A
statutory right can be taken or withdrawn by legislation, but a fundamental right
guaranteed cannot be taken away by any legislature, there can be only reasonable
restrictions.30 In Anukul Chandra Pradhan v. UOI ,31 the Supreme Court said: "...the right
to vote is subject to the limitation imposed by the statute which can be exercised only in
the manner provided by the statute and the challenge to any provision in the statute
prescribing the nature of right to elect cannot be made with reference to a Fundamental
Right in the Constitution. The very basis of challenge to the validity of sub-section (3) of
s. 62 of RP Act is therefore not available...". According to learned author M.P. JAIN, the
above legal position declared by Supreme Court is not fully correct. Learned author
says: "But it is not purely a statutory right, but much more substantive than that. The
right to note is not the gift of the Legislature, but flows from the Constitution. In the first
place, free and fair election has been declared by the Supreme Court to be a basic
feature of Constitution which means that no statute can completely negate the right to
vote." Learned author also says that the Supreme Court has not taken note of Art s. 325
and 326 of the Constitution.32
The Supreme Court, acknowledging the importance of right to vote, has observed: "No
doubt, the right to vote is a statutory right, but it is equally vital to recollect that this
statutory right is the essence of democracy. Without this, democracy will fail to thrive.
Therefore, even if the right to vote is statutory, the significance attached with the right is
massive".33
3ii)  Freedom of expression does not include every concomitant right except
where, in a given case, it forms an integral part of the exercise of the named
fundamental right.34
Reading Article 19(1)(a) along with International Covenant on Civil and Political Rights, it must be
recognised that the freedom of speech and expression includes freedom to sale, receive or impart
information of ideas. Freedom to hold opinions, ideas, beliefs and freedom of thought etc. Which is
also enshrined in the Preamble to the Constitution is part of freedom of speech and expression. Then,
packages of food products, drugs and cosmetics do not disclose any information in writing and
appropriate symbol about the composition of the product contained therein, right to freedom of
conscience of the consumer is violated as they may be unconsciously consuming a product against
their faith, beliefs and opinions. It is, therefore, the fundamental right of the consumer to know whether
the food products, cosmetics and drugs are non-vegetarian or vegetarian origin, as otherwise it will
violate their fundamental right under Article 19(1)(a) and 21. 35
In an election petition, challenging the validity of the election, rights of parties are governed by
statutory provisions for setting aside the election, but this would not mean that a citizen who has right
to be a voter and elect his representative has no fundamental right. The right to know about the
antecedents of the candidate is part of fundamental right to speech and expression. It was further
observed, that right to vote, though not a fundamental right is certainly a constitutional right. The right
originates from the Constitution and in accordance with the Constitutional mandate contained in Article
326, the right has been shaped by statute namely Representative of Peoples' Act. The right to vote
cannot be described as a simple statutory right. The casting of vote tantamounts to our opinion, i.e.
 29

the expression by the voter. The said right carries with it the auxiliary and complementary rights such
as right to secure information about the candidate which are conducive to the freedom. 36
To ensure the continued participation of the people in the democratic process, they must be kept
informed of the vital discussion taken by the Government and the basis thereof. Democracy, therefore,
expects openness and openness is a concomitant of a free society. But the said right is also subject to
reasonable restrictions.37
Privilege against disclosure of documents relating to affairs of state (Evidence Act s 123 and 162)
must be balanced in each case with competing public interest in fair administration of justice. The
concept of open government is the direct emanation from the right to know which seems to be implicit
in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of
information must be the rule and secrecy an exception and justified only, where the strictest
requirements of public interest so demands. The approach of the Court must be to attenuate the area
of secrecy as much as possible consistently with the requirements of public interest, bearing in mind
all the time that disclosure also serves an important aspect of public interest. 38 On the importance of
right to information, the Supreme Court has said:

"The value of any freedom is determined by the extent to which the citizens are able to enjoy such freedom.
Ours is a constitutional democracy and it is axiomatic that citizens have the right to know about the affairs of
the Government which, having been elected by them, seeks to formulate some policies of governance aimed
at their welfare. However, like any other freedom, this freedom also has limitation.

It is settled proposition that the right to freedom of speech and expression enshrined under Art. 19[(]1[)][(]a[)]
of the Constitution of India encompasses the right to impart and receive information. The right to information
has been stated to be one of the important facets of proper governance. With the passage of time, this concept
has not only developed in the field of law but also attained new dimension in its application. Public interest is
better served by effective application of the right to information".

In Ministry of Information and Broadcasting, Government of India v. Cricket Assn. of Bengal,39 the
Supreme Court said:

"True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the
country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed
on all sides of the issues, in respect of which they are called upon to express their views. One-sided
information, disinformation, misinformation and non-information all equally create an uninformed citizenry
which makes democracy a farce when medium of information is monopolised either by a partisan Central
authority or by private individuals or oligarchic organisation. This is particularly so in a country like ours where
about 65% of the population is illiterate and hardly 1 1/2 % [1.5 %] of the population has access to print media
which is not subject to pre-censorship".40

There exists a relationship between the right to know and freedom of speech. But "Right to speech
and publish does not carry with an unrestricted right to gather information. A reasonable restriction is
always permissible as the right to information in the interest of security of State. 41 Parliament has
enacted the Right to Information Act , 2005. The said legislation also provides for certain limitation for
getting information. The right to information like any other right is not unlimited or unrestricted right. It
is subject to statutory and constitutional limitation.42

Right to information is a facet of speech and expression. But every right - legal or moral--carries with it a
corresponding obligation. It is subject to several exemptions. Generally, the exemptions or exceptions under
those laws entitle Government to withhold information relating to following matters: (a) International relation;
(b) National security including Defence and public safety; (c) Investigation, detection and prevention of crime;
(d) Internal deliberation of Government; (e) Information received in confidence from a source outside the
Government; (f) Information which, if disclosed, would violate the privacy of individual; (g) Information of an
economic nature (including Trade Secret), which if disclosed would confer an unfair advantage on some
person or concern or subject some person or Government to an unfair disadvantage; (h) Information which is
 30

subject to a claim of legal professional privilege e.g., communication between a legal adviser and the client;
between a physician and the patient; (i) Information about scientific discoveries.

Public interest cannot be more important than national interest and security. There could be
reasonable restriction on the rights of citizens.43
Freedom Not to Speak
(A) U.S.A.--In the United States, it has been held that freedom of speech includes the right to refrain
from speaking at all44 except in so far as the essential operations of Government 45 or other overriding,
public interest46 may require an individual to speak, for the preservation of an orderly society. 47
In the absence of such overriding public interest which the State is entitled to protect, the State cannot
penalise or discriminate against an individual for his refusal to take a loyalty oath; 48 or to salute the
national flag;49 or to disclose the names of his associates; or to display a slogan on his car plate. 50
Such overriding public interest, e.g.,51 are--

3a)  The need for evidence in aid of the administration of justice, for which a
witness may be compelled to give evidence.52
A right to privacy, though recognised as a fundamental right has to be read into Article
21, the said right is not an absolute right. If there were a conflict between fundamental
rights between two parties, that right which advances public morality would prevail.
Laws have been enacted where accused may be subjected to certain medical or other
tests. Sections 185 , 202 , 203 , 204 of the Motor Vehicles Act , ss. 53 and 54
CrPC . Section 3 of the Identification of Prisoners' Act 1920, ss. 269-270 of IPC are
some of such instances. In matrimonial cases where the divorcee is sought on the
ground impotency, schizophrenia etc., normally without medical examination, it is difficult
to arrive at a conclusion as to whether the allegation is correct or not. In such cases,
medical examination is insisted upon. If in such cases, the person against whom the
allegations are made, avoids medical examination as the ground that his personal liberty
or right to privacy is violated, it will be impossible to arrive at a conclusion. Hence, when
a right is conferred upon the spouse to seek divorce on the above ground, it would be
the right of that spouse which comes into conflict with the so called right to privacy of the
respondent. The Court has to reconcile these competing interests by balancing the
interest involved, at the same time protecting the right of the person to defend himself. 53
3b)  The interest of an employer in the fitness or suitability 54 of his employee, by
reason of which the State as an employer may require the employee to answer
questions55 or to take oath relevant to such interest, e.g., relating to his associations.56
On the refusal of an employee to answer such questions, the employer is entitled to
discharge the employee.57 A candidate for employment is in no better position.58
But where the questions are not relevant to the employment, a public servant cannot be
held to have given up his freedom of speech and expression by reason of the mere fact
of his having taken up the employment.59
3c)  The interest of the public to be protected from fraud or dishonest dealings,
requiring the disclosure of the membership of commercial associations. 60
2d)  The interest of the security of the State itself which entitles the State to
provide for a legislative investigation with power to compel disclosure of a person's
associations.61 In the same interest, the State can compel a person to disclose his
political beliefs in order to qualify himself to become an official of a labour union
recognised by the State,62 or an employee of the Government.63
The interest of State security shall not, however, be tolerated if it is "pressed to a point where it has
come to a fatal collision with the overriding constitutionally protected rights" of the individual. 64 The
Court retains its duty "to strike a balance between the public need for a particular interrogation and the
right of citizens to carry on their affairs free from unnecessary Government interference". 65 As in other
 31

spheres, it is for the Court to weigh the competing values of the right of silence and the right of the
society to coerce a speech. Thus, an advertiser would be compelled to disclose facts which are
necessary to prevent deception of the consumers.66
From the right of an individual not to speak has been deduced the right of any person, including a
newspaper, to choose what to say and what not to say.67 Just as the State is not free to tell a
newspaper what it can print and what it cannot, 68 so the State is not free either to restrict its publication
to certain topics or views or to force it to respond to views others may hold. 69
India
(B) India.--Though there is no decided case as yet, there is little doubt that in India, too, the freedom of
speech guaranteed by Art. 19(1)(a) will be interpreted to include the freedom not to speak, just as the
freedom of business under Art. 19(1)(g) has 'been interpreted to include the freedom to start and carry
on a business as well as to close it70 (see post), so that any restrictions upon that freedom shall have
to be judged by the test of reasonableness, and the overriding public interest justifying the restriction.
Thus, the freedom to remain silent will not immune a person from the obligation to give evidence in a
judicial proceeding subject to constitutional and statutory privileges, e.g., the, immunity from giving
incriminating answers [Art. 20(3)] or disclosing confidential communications.
The right to speech implies the right to silence and it implies freedom, not to listen and not to be forced
to listen.71
It was held that the object of requiring information and certification thereafter by the candidate is to
ascertain and verify the character as antecedents of the candidate and the employer is entitled to
remove him from service, if the information given by him is found not true. It was held that suppression
of material information and making false statement has a clear bearing as the character and
antecedents of the candidate in relation to the continuance in service. 72 Giving employment to one
member of the family for the purpose of rehabilitation who were displaced from their lands, was a
policy decision taken by the Central Government. A candidate seeks employment under the above
policy has to declare whether any other member has obtained employment under the policy. In case a
false declaration is made, the candidate can be prevented from joining the service, even though
selected.73 A person who has given false or wrong information at the time of recruitment, (about the
pendency of a criminal case) which influenced the employer to give employment, is not entitled to
continue in service, when the information was found to be false. 74 The question is not whether the
applicant is suitable for the post. The pendency of a criminal case or proceeding is different from
suppressing the information of such pendency. The case pending against a person might not involve
moral turpitude, but suppressing the information itself amounts to moral turpitude. The information
sought by the employer, if not disclosed as required, would definitely amount to suppression of
material information. In that eventuality, the service becomes liable to be terminated, even if there had
been no further trial or the person concerned stood acquitted or discharged. 75
If one does not start a business at all, perhaps, under no circumstance he can be compelled to start
one. Such a negative aspect of a right to carry on a business may be equated with the negative
aspects of the right embedded in the concept of the right to freedom of speech, to form an association,
or to acquire or hold property. Perhaps under no circumstance a person can be compelled to speak, to
form an association or to acquire or to hold property. But by imposing reasonable restriction he can be
compelled not to speak, not to form an association or not to acquire or hold property. A right to close
down a business is not a right to the ownership of the property, but an integral part of the right to carry
on the business. The owner cannot be asked to part with them or to destroy them by not permitting
him to close down the undertaking.76 But reasonable restriction can be placed on the employee as his
right to close down the undertaking or business in the interest of general public. 77
The right to know and the right of access to information

1.  In recent times, the right of the citizens to obtain information from the
Government in regard to the functioning of the Government has come to the forefront in
all democratic countries.78
 32

U. S. A
2.  Thus, in the U.S.A., it has been established that a newspaper has the right
to gather any information and to disseminate it,79 except where there is a compelling
governmental interest to keep such information secret, e.g., where it relates to national
defence;80 foreign intelligence service;81 investigation of crimes.82
These principles were codified in Sections 552 (b) of the (4) (b) of the Freedom of
Information Act , 1966, and, later incorporated in s. 3 of the Federal Administration Act,
1947 (as amended in 1975).83Except in cases covered by the exceptions specified in this
Act,84 a citizen has now a legally enforceable right of access to official documents. 85
Since access to what are known as 'official secrets' raises more controversy, it will be
given a separate treatment, below.
2.  The right to receive and impart information belongs to an individual as a
corollary from his freedom of expression86 and the right of the Press to have access to
the sources of information relating to public affairs87 and public officials88 is only an
application of that individual right.89
The State is under an obligation to create conditions in which the right to voice one's
opinion, right to seek information and ideas and the right to receive information and the
right to impart information can be exercised. Right to seek, receive and impart
information can be through words of mouth, in writing or in print in the form of art or
through television, radio, etc.90
In a Government of responsibility like ours, where all the agents of the public must be
responsible for their conduct, there can be but few secrets. The people of this country
have a right to know every public act, everything that is done in a public way, by their
public functionaries. They are entitled to know the particulars of every public transaction
in all its bearings. The right to know which is derived from the concept of freedom,
though not absolute, is a factor which should make one wary, when secrecy is claimed
for transaction which can, at any rate, has no repercussion on public security. To cover
with the veil of secrecy, the common routine business is not in the interest of the public.
Such secrecy can seldom be legitimately desired. It is generally desired for the purpose
of parties and politics or personal self-interest of bureaucratic routine. The responsibility
of officials to explain and justify their act s is the chief safeguard against oppression and
corruption.91
Right to information which is a facet of freedom of speech and expression guaranteed by
Art. 19(1)(a), is subject to reasonable restriction prescribed by Art. 19(2). Strengthening
of democracy through informed citizenry is the idea behind Right to information, but at
the same time, balancing this idea with overall State interest of preserving confidentiality
is also necessary.92 In CIC v. State of Manipur ,93 it was held in that case that right to
know is a basic right of the citizens of a free country and Art. 19(1)(a) protects this right.
The right to receive information which is basically founded on the right to know, is an
intrinsic part of the right to freedom of speech and expression enshrined in Art. 19(1)(a).
The freedom to receive and to communicate information and ideas without interference
is an important aspect of the freedom of speech and expression. Without adequate
expression, a person cannot form an informed opinion. 94 The Press is one of the media
through which the people may collect their information and the freedom of the Press is
co-extensive with the rights of an individual, it follows that the Press should have the
right to know and be informed of the administration of public affairs, so that it could pass
on that information to the people,95 which is essential for the proper functioning of the
democratic system of Government.96
India
1.  The right to know relating to public affairs has been held up as a 'basic
right',97 under the Constitution of India .
 33

1.  The right to receive information may be deduced as a counterpart of the

right to impart information, which is an ingredient of the freedom of expression
guaranteed by Art. 19(1)(a).98 In R.P. Ltd. v. Indian Express,99 it was held that people at
large have a right to know in order to be able to take part in a participatory development
of the industrial life and democracy. Right to know is a basic right which citizen of a free
country aspire in the broader horizon of the right to live. In this age, in our land, under
Art. 21 of our Constitution, that right has reacted a new dimension and urgency. That
right puts better responsibility upon those who take upon themselves the responsibility to
inform. However, no one can claim the fundamental right to do so by using or employing
public property. Only where the statute permits him to use the public property, then only--
and subject to such condition and restriction as the law may impose--he can use the
public property, namely, airwaves. In other words, Art. 19(1)(a) does not enable a citizen
to impart information, views and opinions by using airways which constitute public
property and better remain in public hands in the interest of the very freedom of speech
and expression of the citizen of the country.100 The Supreme Court has held that the
"Right to Information" under the Right to Information Act 2005 contemplates a
mandatory duty imposed upon the State under s. 4(2) of the Act to provide information
'suo motu' to public at regular intervals, in addition to right of citizens to seek such
information.101 A right to information is essential to make individual a part of governing
process.102
A person campaigning for a public interest drive has to keep in mind always national
security and national interest since it is above the right to information of citizens. 103
1.  It has been suggested104 that the right to know may also be derived from Art.
21 under which the right to live of a citizen in a free country has been placed on a
broader perspective.
Citizens who have been made responsible to protect environment have a right to know.
There is a strong link between Article 21 and the right to know particularly where secret
Government decisions may affect, health, life and livelihood. 105
1.  The right to know "puts greater responsibility upon those who take upon
themselves the responsibility to inform".106
The concept of open Government is the direct emanation from the right to know, implicit
in the right to freedom of speech and expression. Any limitation, however, would be
justified only where the strictest requirement of public interest requires. 107 Right to
freedom of speech and expression includes freedom to seeks receive and impart
information of ideas. Freedom to hold opinions, ideas etc. is part of freedom of speech
and expression.108
The fundamental right to receive information which springs forth from the right to speech
and expression in Art. 19(1)(a) is a part of basic structure, thus right must be secured to
citizen with reference to the elections as well. 1 At the same time no one can claim the
right by using or employing public property. The right can be claimed only where the
statute permits to use public property as airwaves constitute public property. 2 In Dinesh
Trivedi, MP v. UOI ,3 the Supreme Court said that in modern constitutional democracies,
it is axiomatic that citizens have a right to know about the affairs of Government which
having been elected by them, seek to formulate policies of governance aimed at their
welfare. The Court observed: "Democracy expects openness and openness is
concomitant of a free society and the sunlight is a best disinfectant". 4
In Ministry of Information and Broadcasting, Government of India v. Cricket Assn. of
Bengal ,5 the Supreme Court said: "True democracy cannot exist unless all citizens have
a right to participate in the affairs of the polity of the country. The right to participate in
the affairs of the country is meaningless unless the citizens are well informed on all sides
of the issues, in respect of which they are called upon to express their views. One-sided
information, disinformation, misinformation and non-information all equally create an
 34

uninformed citizenry which makes democracy a farce when medium of information is

monopolised either by a partisan Central authority or by private individuals or oligarchic
organisation. This is particularly so in a country like ours where about 65% of the
population is illiterate and hardly 1 1/2 % [1.5%] of the population has access to print
media which is not subject to pre-censorship".
1.  The right to acquire information includes the right of access to sources of
information. Hence a journalist cannot be denied an opportunity to interview a prisoner
provided: (a) the prisoner is willing to be interviewed, and (b) the regulations contained in
the Jail Manual are complied with.6 For a person to exercise his right to information, the
information must be in existence and accessible to public authority. Under the Right to
Information Act , an applicant is entitled to get copies of opinions, advices, circulars,
orders, etc., but the applicant is not entitled to seek information as to why such opinions,
advices, circulars, orders, etc. were formed, particularly in matters pertaining to judicial
decisions. An administrative officer of court is not expected to have any information other
than what is mentioned by a Judge in his judicial order. A judge who has already
rendered his decision, is not expected to explain separately why he came to a
conclusion as stated in the judgment. No such information is available with public
authority.7
1.  But, as in the U.S.A., this right, like any other fundamental right, is not
absolute. Thus, reasonable restrictions may be imposed upon the citizen's right to
compel disclosure of information if it affects national security, sovereignty or security; 8
friendly relations with foreign State; or if its disclosure would constitute incitement to an
offence, defamation or contempt of Court or might interfere with the investigation of
criminal cases so as to affect the maintenance of public order [under Cl. (2) of Art. 19].
Right to information or a right to know is a facet of the right to speech and expression and hence a
fundamental right. There exists a relationship between a right to know and freedom of speech. But the
right to speech and publish does not carry with it an unrestricted right to gather information. A
reasonable restriction is always permissible on the said right in the interest of security of State.
Reasonable restriction are also permitted in the right to information on following matters: (1)
International Relation; (2) National Security (including defence) and public safety; (3) Investigation,
detection and prevention of Crime; (4) Internal deliberations of the Government; (5) Information
received in confidence from source outside the Government; (6) Information, which, if disclosed would
violate the privacy of the individual; (7) Information of economic nature (including trade secrets) which,
if disclosed, would confer an unfair advantage on some person or concern or subject some person or
Government to an unfair disadvantage; (8) Information which is subject to a claim of legal professional
privilege i.e. Communication between legal adviser and the client, between physician and the patient;
(9) Information about scientific discoveries. The provision under the Atomic Energy Act 1962 which
prohibits for giving information was held to be a reasonable restriction. 9 It was held therein that
freedom of speech and expression have been advisedly set out in broad terms leaving scope for their
expression and adaptation through interpretation, to the changing needs and evolving notions of a free
society.
Secrecy is justified under ECHR particularly on the ground of national security and the prevention of
crime, but subject to independent safeguards and test of proportionality. 10 The Convention gives States
a wide margin of appreciation in relation to security matters and confidentiality has been held to be a
legitimate State interest, in that, it advances the efficient working of Government. 11 In England,
Parliament (House of Commons) has also passed the Freedom of Information Act , 2000. Apart from
the above legislation, there are similar legislations like Data Protection Act, 1998, Public Bodies
(Admission to Meeting) Act, 1960, Access to Personal Files Act, 1987, Official Secrets Act , 1989, etc.
on the subject mainly dealing with exemptions from disclosure of information.
In balancing the reasonableness of the restrictions so imposed in the public interest, the Court must
not forget that it is also in the public interest that in a democracy, the people must be possessed of
information relating to public affairs, which right is guaranteed by Art. 19(1)(a), of the Indian Court. In
the words of MATHEW, J., in Raj Narain's Case:12
 35

"In a government of responsibility like ours, where all the agents of the public must be responsible for their
conduct, there can be but few secrets. The people of this country have a right to know every public act,
everything that is done in a public way, by their public functionaries... The right to know,...though not absolute,
is a factor, which should make one wary when secrecy is claimed for transactions which can, at any rate, have
no repercussion on public security."13

It was further observed "To cover with veil secrecy, the common routine business, is not in the interest
of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose
of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to
explain and to justify their act s is the chief safeguard against oppression and corruption".
This was amplified by BHAGWATI, J., in a seven-Judge Bench in the Judges' case:14

"The concept of an open government is the direct emanation from the right to know which seems to be implicit
in the right of free speech and expression guaranteed under Art. 19(1)(a). Therefore, disclosure of information
in regard to the functioning of government must be the rule and secrecy an exception justified only where the
strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of
secrecy as much as possible consistently with the requirement of public interest..." [para. 66].15

Reliance was also placed by the learned Judge on the observation of LORD SIMON of Glaisdale in
D.V. National Society for the Prevention of Cruelty to Children,16 "the public interest that no innocent
man should be convicted of crime is so powerful that it outweighs the general public interest" which
might be injured by the disclosure of the document. Learned Judge held "It would then seem clear that
in weighing the process which the court has to perform in order to decide which of the two aspects of
public interest should be given predominance, the character of the proceeding, the issues arising in it
and the likely effect of the document on the determination of the issues must form vital consideration,
for they would affect the relative weight to be given to each of the respective aspects of public interest
when placed in the scales".
A note prepared by a Chief Engineer in official discharge of his duties, which contains relevant facts
and circumstances of the case cannot be prevented of being a document dealing with affairs of State"
i.e., on the ground of confidentiality. It was observed more stress has to be placed on transparency of
dealings.17
People of the country have a right to know to have everything that is done in a public way by the
public functionaries. The Member of Parliament and Member of Legislative Assemblies are
undoubtedly public functionaries. Public education is essential for functioning of the process of popular
Government and to assist that discovery of truth and strengthening the capacity of an individual in
participating in the decision-making process. The decision-making process of a voter would include
his right to know about the antecedents of public functionaries who are required to be elected by
them...Freedom of speech and expression includes right to impart and receive information which
includes freedom to hold opinion. Entertainment is implied in freedom of speech and expression and
there is reason to hold that freedom of speech and expression would not be the right to get material
information with regard to a candidate who is contesting the election for a post which is utmost
important with democracy.
In a democracy the electoral process has strategic role. Every voter of the country would have the
basic right to know full particulars of candidates who is to represent him in Parliament. The right to get
information in a democracy is recognised all throughout and it is a natural right flowing from the
concept of democracy... Voter's right to know the antecedents including criminal past of his candidate
contenting election is much more fundamental and basic for survival of democracy. 18 An argument was
made that a voter does not have a right to know about the private affairs of public functionaries.
Rejecting the argument, the court said: "There are widespread allegations of corruption against
persons holding post and power. In such a situation, the question is not of knowing personal affairs,
but to have openness in democracy for attempting to cure the cancerous growth of corruption by a few
rays of light".
 36

The Supreme Court in Union of India v. Association for Democratic Reforms 19 said that Election
Commission must make it mandatory for the candidates to give details on the following counts--(a)
Whether the candidate is convicted or acquitted or discharged of any criminal offence in the past -
whether he has been punished with imprisonment or fine; (b) Prior to six months of filing his
nomination, whether the candidate has been accused in any pending case, of any offence punishment
with imprisonment for two years or more, or whether charge is framed or cognizance is taken by court
of law; if so, details thereof; (c) The assets (immovable, movable, bank balance, etc.) of a candidate
and his/her spouse and that of dependents; (d) Liabilities, if any, particularly where there are any over
dues to any public financial institutions or Government dues; (e) The educational qualification of the
candidate.
Right to information is not absolute. Hence, a report made by a Committee of Judges regarding the
conduct of a High Court Judge to the Chief Justice of India is wholly confidential and is only for the
purpose of satisfaction of Chief Justice of India. It is purely preliminary in nature, ad hoc and not final.
The authority by which Chief Justice of India can exercise this power of inquiry is moral and ethical
and not in exercise of power under any law. Exercise of such power of Chief Justice based on moral
authority cannot be made the subject matter of a writ petition to disclose the report made to him. 20
When any claim of privilege is made by the State in respect of any document, the question whether
the document belongs to the privileged class has first to be decided by court. The court cannot hold an
enquiry into the possible to public interest which may result from the disclosure of the document in
question (first). The claim of immunity and privilege has to be based on public interest. 21 While
considering the claim of privilege, the question of national importance vis--vis administration of justice
should be the criteria for determining the claim.22 In the same case, RAJ C.J. observed "when public
interest outweighs the latter (i.e. national interest) the evidence cannot be admitted... It is in public
interest that confidentiality shall be safeguarded. The reason is that such documents became subject
to privilege by reason of their contents. Confidentiality is not a heard of privilege. It is a consideration
to bear in mind. It is not that the contents contain material which it should be damaging to the national
interest to divulge, but is rather that the documents would be of a class which demand protection".
There is a direct and not merely implied responsibility upon the Government to function openly and in
public interest. The right to information itself emerges from right to freedom of speech and expression.
Unlike an individual, the State owns a multi-dimensional responsibility. It has to maintain and ensure
security of State as well as social and public order. It has to give utmost regard to the right of freedom
of speech and expression which a citizen or group of citizens may assert. The State has also a duty to
provide security and protection to persons who wish to attend such assembly at the invitation of the
person who is exercising his right to freedom of speech. 23
The Right to Information Act , 2005 (22 of 2005) has been passed by Parliament which came into
effect from 13-10-2005. Section 3 of the Act provides that subject to the provision of the Act, all
citizens have a right to information. Section 8 provide for exemption from disclosure of information
which relates to: (1) Information, disclosure of which would prejudicially affect sovereignty and integrity
of India, the security, strategic, scientific or economic interests of the State, relation with foreign state
or lead to incitement 'of an offence'. (2) Information which has been expressly forbidden to be
published by any Court of Law or tribunal or the disclosure of which may constitute contempt of Court.
(3) Information, the disclosure of which would cause of breach of privilege of Parliament or the State
Legislature. (4) Information including commercial confidences, trade secrets or intellectual property,
the disclosure of which would harm the competitive position of a third party unless the competent
authority is satisfied that larger public interest warrants the disclosure of such information. (5)
Information available to a person in his fiduciary relationship, unless the competent authority is
satisfied that the larger public interest warrants the disclosure of such information. (6) Information
received in confidence from foreign Government. (7) Information, the disclosures of which would
endanger the life or physical safety of any person or identity the source of information or assistance
given in confidence for the law enforcement or security purpose. (8) Information which would impede
the process of investigation or apprehension or prosecution of offenders. (9) Cabinet papers including
records of deliberation of the Council of Ministers, Secretaries or other Officers. (Provided that the
decision of Council of Ministers, the reasons thereof and the material on the basis of which the
 37

decision were taken shall be made public after the decision was taken and the matter is complete or
over). Provided further that those matters which come under the exemption in this section shall not be
disclosed. (10) Information which relates to personal information the disclosure of which has no
relationship to any public activity or interest or which would cause unwarranted invasion of privacy of
the individuals unless the Central Public Information Officer or the State Public Information Officer or
the Appellate Authority, as the case may be, is satisfied that the larger public interest justifies the
disclosure of such information.
Provided that the information, which cannot be denied to Parliament or a State Legislature shall not be
denied to any person.

5)  Notwithstanding anything in the Official Secrets Act 1923(19 of 1923) nor
any of the exemption permissible in accordance with sub-section (1), a public authority
may allow access to information, if public interest in disclosure outweighs the harm to
the protected interests.

3)  Subject to the provision of clauses (a), (c) and (i) of sub-section (1), any
information relating to any occurrence, event or matter which has taken place occurred
or happened twenty years before the date on which any request is made under s. 6 shall
be provided to any person making a request under that section.
Providedthat where any question arises as to the date from which the said period of twenty years has
to be computed, the decision of the Central Government shall be final, subject to the usual appeals
provided for in the Act .
Section 24 provide that the Act will have no application to the intelligence and security organisation
specified in the Act (i.e. Second Schedule) being organisation established by the Central Government
or any information furnished by such organisation to that Government. Second Schedule to that Act
provides 25 organisations to which the Act has no application. Even in regard to these organisations,
in the case of violation of human rights and corruption, the Act is made applicable.
Section 19 provides for an appeal against the decision or non-decision by a person aggrieved to the
next officer higher in rank to Central Public Information Officer or State Public Information Officer as
the case may be, which may be preferred within thirty days.
The Purpose of the Act is to clean up public life. The Act though does not confer any new right on
citizen; it only underscores their right to know how the governments, meant to serve them, are
functioning. It lays down the process of how and where to apply for information. The Act s provides for
penalty on the officer, who is unwilling to provide information and also for furnishing wrong information.
Nothing can be as destructive of the social fabric in a democratic society than the attempt of those
who govern to prevent access to information to those whose security depends upon the preservation
of order. An environment in which human rights are respected is nurtured by a vibrant flow information
and avenues for a critical assessment of governance.24
"The right to information is a right incidental to the constitutionally guaranteed right to freedom of
speech and expression. The international movement to include it in the legal system gained
prominence in 1946 with the General Assembly of the United Nations declaring freedom of information
to be a fundamental human right and a touchstone for all other liberties. It culminated in the United
Nations Conference on Freedom of Information held in Geneva in 1948.
Article 19 of Universal Declaration of Human Rights says--Everyone has the right to freedom
(information) and expression; this right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and regardless of frontiers.
It may be a coincidence that Article 19 of Indian Constitution also provides every citizen the right to
freedom of speech and expression. However, the word "information" is conspicuously absent. But as
the highest court has explicated, the right to information is integral freedom of expression.
 38

India as a member of the Commission of Human Rights was appointed by the Economic and Social
Council of the United Nations which drafted 1948 Declaration. As such it would have been eminently
fit and proper if the right to information was included in the right enumerated under Art. 19 of our
Constitution. Article 55 of UN Charter stipulates that the United Nations "shall promote, respect for and
observance of human rights and fundamental freedom" and according to Article 56 "all members
pledge to take joint and separate action in co-operation with the organisation for the achievement of
the purposes of Article 55."25
In Namit Sharma's case,26 the Supreme Court also has taken note of the fact that certain legislation
which provides right to information i.e., ss. 74 to 78 of the Indian Evidence Act , 1872 which gives
right to a person to know about the contents of a public document and the public officer is required to
provide copies of such public documents to any person, who has the right to inspect them. Under
Sections 25(6) of the Water (Prevention and Control of Pollution) Act , 1974, every State is required
to maintain a register of information on water pollution and it is further provided that so much of the
register as relates to any outlet or effluent from any land or premises shall be open to inspection at all
reasonable hours by any person interested in or affected by such outlet, land or premises, as the case
may be". A direction was given in Namit Sharma's case that Information Commissioner should be
judicially trained officers applying the principle of separation of powers. The above direction alone has
been recalled in UOI v. Namit Sharma .27
Right to Privacy
In Griswold v. Connecticut ,28 the Court said: "We deal with a right of privacy older than Bill of Rights--
older than our political parties, older than our school system. Marriage is a coming together for better
or for worse, hopefully enduring and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for a noble purpose as any involved in our prior
decision". In that case, the court said that decisions in Pierce v. Society of Sisters 29 and Meyer v.
Nebraska ,30NAACP v. Alabama ,31 suggest that specific guarantees in the Bill of Rights have
penumbras formed by emanation from those guarantees that help give them life and substance.
Various guarantees create zones of privacy. The right of association contained in the penumbras of
the First Amendment is 'one'. The Third Amendment in its prohibition against the quartering of soldiers
"in any house" in time of peace without the consent of owner is another facet of privacy. The Fourth
Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers and
effects against unreasonable search and seizures". The Fifth Amendment in its self-incrimination
clause enables the citizen to create a zone of privacy which Government may force him to surrender
to the detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people." The Fourth & Fifth
Amendments protect against all governmental invasions "of the sanctity of a man's home and
privacies of life". The Fourth Amendment is creating a right to privacy "no less important than any
other right carefully and particularly reserved to the people".
In Jone Roe v. Henry Wade ,32 the Supreme Court of America said: "Although the Constitution of the
USA does not explicitly mention any right to privacy, the US Supreme Court recognises that right of
personal privacy or a guarantee of certain areas or zones of privacy, does exist under Constitution and
that roots of that right may be found in the First Amendment, in the Fourth Amendment and Fifth
Amendment, in the penumbras of Bill of Rights, in the Ninth Amendment and in the concept of liberty
guaranteed by the first section of Fourteenth Amendment and that the right of privacy is not absolute.
Right to privacy is implicit in the concept of liberty (in the Due Process Clause) and follows as a
penumbra of the enumerated rights, without which the enjoyment of specific rights would not be
secure.33
The right to privacy as an independent and distinctive concept originated in the field of Torts Law,
under which a new cause of act ion for damages resulting from unlawful invasion of privacy, was
recognised. This right has two aspects which are two faces of the same coin. (1) The general law of
privacy which affords a tort action for damages resulting from unlawful invasion of privacy (2) The
constitutional recognition given to the right to privacy which protects personal privacy against unlawful
 39

governmental invasion. The first aspect of this right must be said to have been violated, where, for
example, a person's name, or likeness is used without his consent, for advertising, or non-advertising
purpose or for that matter, his life story is written--whether laudatory or otherwise and published
without his consent. In recent times, however, the right has acquired a Constitutional Status.
The right to privacy is implicit in the right to life and liberty to the citizens under Art. 21. "It is a right to
be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, pro-
creation, motherhood, child bearing and education among other matters. No one can publish anything
concerning the above matters without his consent - whether truthful or otherwise and whether
laudatory or critical. If he does so, he will be violating the right to privacy of the person concerned and
would be liable for act ion for damages. Position may, however be different, if a person voluntarily
thrusts himself into controversy or voluntarily invites or raises a controversy.
The above rules are subject to exceptions: (1) If the publication is based on public records including
court records. (2) In the case of public officials, right to privacy or for that matter, the remedy of action
for damages is simply not available with respect to their act s and conduct relevant to the discharge of
their official duties.
This is so even where the publication is based upon facts and statements which are not true, unless
the official establishes that the publication was made (by the defendant) with reckless regard for truth.
In such cases, it would be enough for the defendant (i.e. member of press or media) to prove that he
asked after a reasonable verification of facts; it is not necessary for him to prove that what he has
written is true. But where the publication is proved to be false 'and' actuated with malice or personal
animosity, the defendant would have no defence and would be liable for damage.
So far as the Government, local authority and other organs and institutions exercising governmental
power are concerned, they cannot maintain a suit for damage for defaming them. 34
Any right to privacy must encompass and protect the personal intimacies of the house, the family,
marriage, motherhood, procreation and child bearing.35 A citizen has a right to safeguard the privacy of
his own, his family, marriage, procreation, motherhood, child bearing and education amongst other
matters.36
In Malak Singh v. State of Punjab ,37 the Supreme Court has held that permissive surveillance is only
to the extent of a close watch over the movement of the person under surveillance and no more. So
long as surveillance is for the purpose of preventing crimes and is confined to the limits prescribed, a
person whose name is included in the surveillance register can have no genuine cause of complaint.
But this did not mean that the police have a licence to enter names of whoever they like or dislike in
the surveillance register nor can surveillance be such as to squeeze the fundamental freedoms
guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedom nor can the
surveillance so intrude as to offend the dignity of the individual. 38
Police has been vested with the power to make searches, enter into house of a person to arrest him if
any cognizable offence is reported against him and under provisions of CrPC in accordance with law,
but it cannot make an inroad into the house of a citizen without cognizable offence being reported to it.
The English law maxim says: "Everyman's house is his castle" or "the house of everyone is to him his
castle and fortress as well as his defence against injury and violence" as for his repose has been
accepted as law by the courts in India. The said maxim is embedded under Art. 21 of the
Constitution.39
Nature of food one takes, whether vegetarian or non-vegetarian, it was held, is one's personal affair
and is part of one's privacy.40
The Supreme Court has held that a declaration of a customer of bank as a wilful defaulter for
defaulting in repayment of dues is not a breach of privacy notwithstanding any law. (s s. 45-C, 45-E
and 45-V to 45-X of RBI Act ) or agreement (express or implied) between the bank and its constituents
or customer in view of RBI Master Circular on wilful defaulter. 41
Privacy primarily concerns the individual. It, therefore, relates to and overlaps with the concept of
liberty. The most serious advocate of privacy must confer that there are serious problems of defining
 40

the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of
other rights.
Any right to privacy must encompass and protect the personal intimacies of the home, family,
marriage, motherhood, pro-creation and child rearing. This catalogue approach to the question is
obviously not as instructive as it does not give an analytical picture of the distinctive characteristics of
the right to privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying
concept has been ascertain that a claimed right must be a fundamental right implicit in the concept of
ordered liberty.
Rights and freedom of citizens are not truth in the constitution in order to guarantee that the individual,
his personality and those things stamped with his personality shall be free from official interference
except where a reasonable basis for intrusion exists. In this sense, many of the fundamental rights of
citizen can be described as contributing to the right to privacy. Telephone tapping amounts to invasion
to right to privacy under Article 19(2).42
The right to privacy in any event will necessarily have to go through a process of case to case
development. Therefore, even assuming that the right to personal liberty, the right to move freely
throughout the territory of India and the freedom of speech create an independent right to privacy as
an emanation from them which one can characterise as a fundamental right, it cannot be said the
said, right is absolute.43
Those who make noise often take shelter behind Art. 19(1)(a) pleading freedom of speech and right to
expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights are
not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his
speech with the help of loud speakers while one has a right to speech, others have a right to listen or
decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make
his voice trespass into the ears or mind of others. Nobody can indulge in quarrel aggression. Right to
freedom of speech and expression includes the right to decline to listen. 44
Privacy is a restraint on freedom of expression and as such gives rise to concerns when relied on by
public officials and politicians who have something to hide and who wish to prevent the disclosure of
information which may expose hypocrisy or worse. It is also a restraint on the activities of the police
and other authorities in the Criminal Justice System who are engaged in legitimate act ivities in public
interest to detect drug dealers and other traffickers in human misery. This is not to say, of course, that
there should be no right to privacy; it is a case for balancing competing rights and interests. But where
rights to privacy are restricted, there is a case for doing so only with clear authority and only where
necessary for a legitimate purpose. And while it might be expected that the State would refrain from
violating the privacy of the individual except where there is good cause to do so, equally it might be
expected that the State would intervene to take steps to protect the privacy, particularly of the weak
and vulnerable, from commercial exploitation and other forms of abuse by global corporation and
other powerful organisation.45
Privacy is not amongst the rights guaranteed by Part III of our Constitution. It is interesting to note that
a process analogous to the American decision, our Supreme Court has been building up a
Fundamental Right to privacy as an integral part of or emanation from Art. 21 though the process is as
yet nascent. There is still some wavering as between Art. 19(1)(d) and Art. 21, but the decision in
Govind v. State of MP ,46 was prepared to "assume" that a right to privacy might be taken as an
emanation from the right to personal liberty.
The developing concept of privacy right has lent its several rights related to privacy, namely, "right to
be let alone", "right to dignity or moral integrity of an individual to control of personal information",
including emotional relationship with others.47 Right to privacy prevents disclosure of information
imported under confidence.48 This will include a relationship of confidence which exists between a
doctor and patient,49 journalist and source,50 husband and wife.51
What would amount as misuse of the information would depend upon the circumstances and the
defence. The duty of confidence is restricted by the defence of "public interest". 52 Hence, disclosure of
 41

fraudulent business practices;53 dangerous medical practices;54 and even question of immorality55
would be excluded from the right of privacy.56
In X v. Hospital Z ,57 involves a case of privacy right of a patient who settled his marriage. Before
marriage, it was found that he is affected by HIV (positive). But the doctor disclosed the same to the
woman, who was to marry the patient. In a claim for damages for disclosure of his ailment, Supreme
Court said that though the doctor was duty bound to maintain the privacy, the doctor had an equal
important duty to protect the health of the lady who would have surely been infected if marriage had
taken place.
When a voter has a right to information as to the antecedents of the candidate to be elected, the said
right cannot be defeated on the ground that candidate's right to privacy is affected. Once a person
becomes a candidate to acquire public office, a declaration as to his antecedents will not affect his
right to privacy.58
Intrusion upon one's seclusion or solitude, public disclosure of embarrassing private facts and publicity
which places one in false light are protected as the principle of "right to be left alone". Even a woman
of easy virtue is entitled to privacy and no one can invade her privacy. 59 In Maneka Gandhi v. Union of
India ,60 it was held that the expression 'personal liberty' in Art. 21 is of widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of man and some of them have been raised
to the status of distinct fundamental rights and given "additional protection" under Art. 19. Any law
interfering with the personal liberty of a person must satisfy a triple test: (1) it must prescribe a
procedure (2) the procedure must withstand the test of one or more of the fundamental rights
conferred under Art. 19 which may be applicable to a given situation and (3) it must be liable to be
tested under Art. 14. As the test propounded by Art. 14 pervades Art. 21 as well the law and procedure
authorising interference with personal liberty and the right to privacy must also be right and just and
fair and not arbitrarily, forceful and oppressive and if the procedure prescribed does not satisfy the
requirement of Art. 14, it would be no procedure at all within the meaning of Art. 21.
In Kharak Singh v. State of U.P .,61 it was held that right to privacy can be traced from the right to 'life'
in Art. 21 (majority view). In the concurring view expressed by SUBBA RAO J. observed that right to
privacy was part of the right of liberty under Article 21, part of the right to freedom of speech and
expression in Art. 19(1)(a) and is also a part of right to movement under Art. 19(1)(d). In Govind v.
State of M.P .,62) the said view of SUBBA RAO J. was accepted by MATHEW, J.
The entire law was considered and discussed in District Registrar & Collector v. Canara Bank ,63
wherein it was held that the right to privacy which attracts Arts. 19(1)(a) to (d), Art s. 14 and 21, can be
held to be reasonable - provided (1) in the case of intrusion by legislative provisions, the same has to
be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose
the court can go into the proportionality of the intrusion vis-a-vis purpose sought to be achieved; (2) in
the case of administrative or executive orders, they have to be reasonable having regard to the facts
and circumstances of the case and it can be reasonable only if it has a reasonable basis or
reasonable materials to support it and (3) in the case of intrusions by judicial orders, i.e. issue of
judicial warrants they are permissible only if the court has sufficient "reason to believe" that the search
or seizure is warranted and the court must keep in mind the extent of search and seizure necessary
for protection of the particular State interest. In the case of warrantless searches, (in the rare cases)
must be conducted in good faith, intended to preserve evidence or to prevent sudden danger to
person or property. In that case, the Supreme Court struck down Sections 73 , Indian Stamp Act (as
amended by State of A.P.) as violative of all the tests mentioned above.
While holding the right to privacy is implicit in the right to life and liberty guaranteed to the citizens, an
exception was made, i.e. if any publication is made concerning the private life of a person is available
from public records including records. But even in such cases, another exception must be carved out
viz. female who is the victim of sexual assault, kidnap, abduction or a like offence should not further
be subjected to the indignity of her name and the incident being published in press or media, i.e. there
is no "right to publicity" in such cases.64
Persons holding public offices must not be thin-skinned with reference to the comments made on
them and even where they know that the observations are undeserved and unjust, they must bear
 42

with them and submit to misunderstanding for a time. At times public figures have to ignore vulgar
criticisms and abuses hurled against them and they must restrain themselves from giving importance
to the same by prosecuting the person responsible for the same.
In a democratic set up a close and microscopic examination of private lives of public men is the
natural consequence of holding public offices. What is good for a private citizen who does not come
within the public gaze may not be true of a person holding public office. What a person holding public
offices does within the four walls of his house does not totally remain a private matter. But the scrutiny
of public figures by media should not also reach a stage where it amounts to harassment to the public
figures and their family members and they must be permitted to live and lead their life in peace. But
the public gaze cannot be avoided which is necessary of their holding public offices ... If an article is
purely relating to the personal life of a public official, it would be necessary for the member of the
press or media to publish such article only after a reasonable verification of the facts. The position will
be different, if a person voluntarily thrust himself or herself into a controversy or voluntarily invites or
raises controversy.65
In a democratic society, it is almost too obvious to make it statutory that those who hold office in
Government and who are responsible for public administration must always be open to criticism. Any
attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and
objectionable kind. At the same time, it is no less obvious that the purpose of criticism levelled at those
who have the conduct of public affairs by their political opponents is to undermine public confidence in
their stewardship and to persuade the electorate that the opponents would make a better job of it than
those present holding office. In the light of these considerations, their Lordships cannot help viewing a
statutory provision which criminalises statements likely to undermine public confidence in the conduct
of public affairs with the utmost suspicion.66
Although a statutory power to make search and seizure by itself may not offend the right of privacy,
court has to see that such a right is not unnecessarily infringed. Even if the statute confers a power to
search and seizure at all hours, and at all places, the same may be held to be ultra vires unless the
restrictions are reasonable. What would be reasonable restriction would depend upon the nature of
the statute and the extent of the right sought to be protected. 67
Official Secrets

2.  The expression 'official secrets' appears to have originated from the Official
Secrets Act , passed by the British Parliament in 1911, followed by a similar Act made in
India in 1923.68Though neither Act defines what are 'official secrets', both define a
'prohibited place'.
In Landmark Communication Inc. v. Virginia ,69 though court 'assumed' confidentiality serves legitimate
State interest, the question is whether that is sufficient to justify the encroachment on First
Amendment guarantee? The Court held that in such cases, the court must make an enquiry into the
"imminence and magnitude of the danger said to flow from the particular utterances and then to
balance the character of the evil as well as its likelihood against the need for free and unfettered
expression. The possibility that other measures will serve the States' interest also should be weighed."
In that case, the court held that in the absence of an imminent threat to an extremely serious interest,
general concern to protect the Judges and the integrity of court cannot justify the punishment of news
media for publishing truthful, but confidential information relating to an inquiry by the State's Judicial
Conduct Commission. On the basis of above dictum, Court has consistently held that a State may not
restrict the publication of truthful confidential information absent "a State interest of the highest
order".70
In Cohen v. Cowles Media Co .,71 it was held that First Amendment does not shield a newspaper from
the payment of damages after it published the name of a source to whom it had promised
confidentiality. Publishing the name of rape victim by Press which was made available due to
negligence by police in the Press-room of local police department is not constitutional. 72 Publication of
truthful, but confidential information as to the identity of a juvenile offender, obtained by lawfully
 43

monitoring police radio band frequencies, is not constitutionally punishable, especially where State law
prohibited newspapers, but not other media from disseminating the information.
U.K.

3.  Both Acts prohibit the obtaining and communication of information (including
publication) regarding the prohibited places, for the purpose of preventing spying 73 and
leakage of information relating to military objects. 74 While this provision has little
objection, the other wider provision relating to Communication of official information has
been subjected to criticism and a cry of reform in the U.K., but no legislation to
implement proposals of the Franks Committee has yet been enacted and Bills brought
for the purpose up to 1988 have proved abortive. In AG v. Guardian Newspapers Ltd.
(No.2) ,75 the House of Lords held that Press could be restrained by injunction from
publishing secrets "provided the newspaper knew that the information was confidential
and that some harm to the public interest would result from such publication". By the
time the decision was rendered, the information was published and the contents of
information were in public domain and for that reason injunction was refused.
India

3.  The criticised provisions are in Sections 2 of the English Act and s. 5 of
the Indian Act.
These provisions punish the collection, and communication of any information the disclosure of which
would affect, inter alia, the sovereignty and integrity of India or the friendly relations of India with
foreign States, or would be useful to the 'enemy'. If these conditions are satisfied, the information need
not necessarily be 'secret'.76
Any person receiving such prohibited information, having reasonable ground for believing that such
information has been communicated in contravention of the Act, is also liable to be punished.
The Official Secrets Act s of England and India also bar the publication of in cameraproceedings hold
under the Act s.77
U. S. A.
While in the U.S.A., the exceptions to the right to information and from official sources have been
codified in the Freedom of Information Act , 1966, in the U.K., any such attempt has proved to be
abortive up to 1988, notwithstanding the recommendations of the Franks Committee (1972) and the
strong agitation for amending the Official Secrets Act , to induct an 'open government'. Till such
legislative reform takes place, it can be effected only by judicial decisions, case-to-case. The latest
House of Lord decision, arising out of the 'Spycatcher case', leads to the following proposition which
may be instructive to Indian Courts:

"Disclosure of confidential or secret information by an official in the course of his employment cannot be
restrained unless the Government shows not only that the information was confidential, but also that it was in
the public interest that it should not be restrained".78 The above view was expressed at an interlocutory stage
where the court said that though the book has been published in America and the UK, further disclosure in
Press could do further harm. After full trial, court said that the restraint order was no use in that case since the
contents of the book were in public domain, no further damage could be done to the public interest. In the final
decision after trial court agreed that Press could be restrained by an injunction from publishing government
secret "provided that newspaper knew that the information was confidential and that some harm to public
interest would result from the publication".79

Although the basis of the law's protection of confidence is that there is a public interest that
confidences should be preserved and protected by law, nevertheless that public interest may not be
outweighed by some other countervailing public interest in favour of disclosure. 80
India
 44

In India, the recommendation of the Second Press Commission (1982) has not been implemented by
the Government by enacting a statute on the lines of the U.S. Information Act, or of the British
Freedom of Information Bill. But since the existing Official Secrets Act does not contain any definition
of 'official secrets', there is a good case81 for referring to a high-powered Commission the task of
drawing up a list of documents which the Government shall be entitled to withhold after consulting
representatives of the Government as well as the Press and the general public, e.g.--

4a)  documents relating to national defence or security of the State;

4b)  documents relating to investigation of crimes, the disclosure of which might
be helpful in the commission of offences or facilitate escape from legal custody or might
impede the detection of crimes or apprehension of offenders;
4c)  documents relating to an identifiable individual which might constitute an
unwarranted invasion of his privacy;
3d)  trade secrets and other confidential business information.
Sections 8(2) of Right to Information Act , 2005 enables or empowers the public authority to allow
access to information not withstanding any contained in the Official Secrets Act provided if public
interest in disclosure outweighs the harm to the protected interests.
Government is entitled to withhold information relating to matters mentioned in Sections 8(1) of
Right to Information Act , 2005. That apart, in Peoples' Union for Civil Liberties v. Union of India .82 The
Supreme Court has also given certain guidelines similar to the provision of Sections 8(1) of the Right
to Information Act . In that case, the question was whether the applicant has entitled to get information
de hors the provisions of Atomic Energy Act 1962, which prohibits supplying information, which was
found to be a reasonable restriction on the right to information.
The Right to Information Act , 2005 under s. 8(1)(e) exempts the authority from furnishing information
when such information has come to the notice of or on record of a person holding fiduciary
relationship with another and but for such capacity, such information would not have been provided to
that authority, would normally need to be protected and would not be open to disclosure keeping the
higher standards of integrity and confidentiality of such relationship in mind. 83 Seeking information
about a person's movables and immovable properties, bank account balances in banks and other
financial institution, and gifts alleged to have been received, etc. are all personal information and this
need not be disclosed under Sections 8(1)(j) of Right to Information Act . 84 Except in cases of
overriding public interest, the annual confidential report of a public servant cannot be disclosed. 85
Speech plus conduct or action
U.S.A.
In the U.S.A., a problem has been raised before the Courts in U.S.A. in cases where speech or
expression is accompanied by some conduct or activity stands outside the protection of freedom of
speech and can be suppressed by the State as such, e.g.--

4i)  picketing86 and other labour devices:

"Picketing, demonstrating and similar act ivity usually consists in walking or marching
around a building or place carrying sign or placards protesting against same thing that
has been or being done by the person picketed. Thus a person engaged in such
activities is not only communicating ideas--that is exercising freedom of speech or
press--but is pursuing a course of conduct in addition to constitutionally protected
speech and press--"This is not a new idea either with me or the Supreme Court since it
has long been accepted constitutional doctrine that the First Amendment presents no bar
to the passage of laws regulating, controlling or entirely suppressing such a course of
marching conduct even though speaking and writing accompany it. As picketing is made
up of speech and press places other conduct, so are what we popularly called
demonstrations and street marches. But the conduct of demonstrators and street
 45

marchers like that of picketers can be regulated by Government without violating the
First Amendment.87
In Hudgent v. NLRB ,88 considered the right of Union members to enter the privately
owned shopping centre to picket a store located within the centre. It was held that the
Union members did not have a First Amendment right to enter shopping centre to
advertise their strike. The constitutional guarantee of free expression has no part to play
in such cases. Conduct as well as speech can promote the ends of the First
Amendment. Demonstration and picketing, by combining conduct with speech, often can
be more effective than speech alone. Where expression and conduct are intertwined, in
other words, Government can regulate the non-speech to achieve valid governmental
ends. In Clark v. Community for Creative Non-Violence ,89 a ban on sleeping in national
park was challenged. Rejecting the challenge of a group that sought to conduct a "sleep-
in" parks near nation's capital to dramatize the plight of the homeless; the court
observed that the prohibition was not designed to restrict expression and served a valid
purpose of "maintaining parks" in an attraction and intact condition".
In DPP v. Broome ,90 the House of Lords held that everyone has the right to use the
highway free from the risk of being compulsorily stopped by any private citizen and
compelled to listen to what he does not want to hear. There is no such right of pickets to
stop vehicles and to compel the drivers and their occupants to listen to what they have to
say. In Tynan v. Balmer ,91 it was held that when the organiser had directed 40 pickets to
walk in a circle in the highway near the factory entrance, this amounts to an obstruction
of the highway and not protected by the statute.
In Frisby v. Shyltz ,92 the Supreme Court upheld the validity of an ordinance enacted for
prohibiting the residential picketing that focus and takes place in front of a particular
residence, even though the picketing was to take place in a public place or street, but
only leads to a particular residence. While holding that apart from the fact there are other
methods to communicate the grievance, privacy of the home should not be affected...It
was held that even a single instance of picketing can invade the residential privacy,
which is of highest order in a free and civilised society.
4ii)  prostitution in the premises of a bookstore.93
The decisions on this point are not uniform and also changing with the development of ultra-modern
permissive ideas, but the following propositions may be deciphered:

5a)  There is no problem where the act ivity can be held to be a concomitant of
the exercise of freedom of expression, in which case it would also come within the same
protection, e.g.,
Solicitation of funds for a lawful cause.94
In these cases, the conduct would be subject to the same restrictions as the speech
itself,95e.g.,
A restriction thereupon will be invalid if it is unduly excessive; 96 or if it is imposed
otherwise than for serving a legitimate public interest, e.g., the prevention of fraudulent
misrepresentation.97
Symbolic speech
5b)  Similarly, no problem would arise where the conduct itself constitutes a
mode of communication and constitutes what is called 'symbolic speech', e.g., wearing
armbands98 or a flag,99 for expressing one's views, for peaceful purposes.
It has been stated, earlier (see ante), that the freedom of expression is not confined to words of mouth
or writing but embraces the right to express one's ideas by visible representation or action or by
conduct, which is analogous to speech, e.g., marching, picketing, wearing badges;100 destroying
 46

conscription cards.101 In American decisions, such forms of expression are labelled as 'symbolic
speech'.
Such symbolic speech raises new problems because they are not pure speech which the Constitution
protects, but is accompanied or substituted by conduct which the State is entitled to regulate.
U.S.A.
(A) U.S.A.--Though the decisions on the subject are not always reconcilable with each other, the
following lines of approach may be indicated:

5i)  When 'speech' and 'non-speech' elements are combined in the same course
of conduct, a sufficiently important governmental interest in regulating the non-speech
element can justify incidental limitations on the freedom of speech or assembly.
In this sphere, therefore, State regulation would be justified if (a) it is within the
constitutional power of the State; (b) it furthers an important or substantial governmental
interest; (c) the governmental interest is unrelated to the suppression of free expression;
(d) the incidental restriction on the alleged First Amendment, freedom is no greater than
is essential to the furtherance of that interest. 102
5ii)  But though conduct cannot be suppressed where it would constitute a
suppression of a communication,103 it would be valid if the law is not specifically aimed at
the freedom of expression, but operates generally, to protect some legitimate interest of
the State.104
Thus, even the burning of the national flag has been upheld as a legitimate mode of
protest against governmental conduct where the accompanying speech of the defendant
did not urge anybody to do anything unlawful.1 Similarly, the wearing of a military uniform
without authority cannot be penalised if it is used in course of a theatrical performance,
without discrediting the armed force.2
In Street v. Newyork ,3it was held the New York Statute which provides for penal
consequences for defacing, or defiling, trample upon or cast contempt by the words or
act s of any flag of United States was un-constitutionally applied in a case, where a
person used or spoke defiant words about American Flag.
In Spence v. Washington ,4 was a case where a person displayed US flag which he
owned out of the window of his apartment in protest against the invasion of Cambodia.
Affixed to the flag was a large piece of symbol made of removable tape. He was
convicted for having violated the Washington Statute which makes flag misuse an
offence, and which also prohibits the exhibition of US flag to which is attached or
superimposed, "in words, figure, marked, design, drawing or advertisement". It was held
that the protest was a pointed expression of anguish about affairs of the Government. It
was observed that there is no risk that his acts would mislead viewers and therein no
permanent disfigurement of the flag.5
On the other hand, the mere burning of a war recruitment registration certificate may be
penalised in the exercise of the War power of Congress, where the statute penalises any
sort of mutilation or destruction whether it is committed for the purpose of protesting
against the war efforts of the United States or otherwise. 6 In this case, the law was
sustained because it was not aimed at the suppression of communication, specifically. 7
In Barnes v. Glen Theatre ,8 a State legislation prohibited nude dancing. It was argued
that the legislation is violative of First Amendment. It was held that "nude dancing" is a
mode of expressive conduct within the outer perimeters of First Amendment, though only
marginally. The challenge failed in which court held that under police power the States
are to protect the public health, safety, welfare and morals, etc. and prohibition of public
indecency furthers a substantial government interest in protection order and morality.
The Court also held: "While it might be argued that almost any kind of conduct could be
redefined as a form of expression, such a limitless view cannot be accepted.
 47

Emphasising the distinction between speech and conduct, the court explained that the
statute punished being nude, is not nude dancing. The proscription on nudity, therefore,
was not aimed at suppressing communication but had only an incidental effect on
expression. Court followed the decision in US v. O'Brein .9
3iii)  On the other hand, even a silent non-speech conduct may be entitled to
protection accorded to 'pure speech', if it is a medium for the expression of opinion (e.g.,
the wearing of an armband by students at a school to express their protest against a
current war),10 provided it is not accompanied by disruptive conduct. 11 It cannot he
proscribed merely because it would raise controversy or cause a disturbance from
opponents.
This does not mean that the school authorities may not enforce discipline in matters not connected
with the freedom of expression, e.g., by regulating the length of skirts, or the hair style and the like. 12
Similarly, it has been acknowledged that the display of a flag, banner, badge or other device to
express 'opposition to organised government', is entitled to the same protection as speech used for
the same purpose.13
The flag salute is a form of utterance and an effective way of communicating ideas. The use of flag or
emblem to symbolise some system, idea or institution is a short cut from mind to mind. Chief JUSTICE
HUGHES held in Stromberg v. California ,14 that the display of a red flag as a symbol of oppositions by
peaceful and legal means to organised government was protected by the free speech guarantee of
the Constitution of the USA.
In West Virginia State Board of Education v. Barnettee ,15 specifically over-ruled the earlier discussion
in Minersville School District v. Gobiti ,16 which held that participation by school students in the public
schools in the ceremony of National Flag and the students belonging to Jehovah's witnesses could not
claim any exemption. While over-ruling the above decision, it was held that compulsory flag salute
was an invasion of the sphere of intellect and spirit, a sphere protected from official control by the First
and Fourteenth Amendment to the Constitution.17 All the above discussion are referred and fully
discussed by our Supreme Court in Bijoe Emmanuel v. State of Kerala .18
India
(B) India.--

1.  An attempt to distinguish between 'speech' and 'action' is clearly discernible

in Art. 31D which was inserted in the Constitution, by the Constitution (42nd
Amendment) Act, 1976. This Article provided that if a law is passed for the prevention or
prohibition of any 'antinational activity', such law shall be immune from constitutional
invalidity on the ground of contravention of Art. 19 (inter alia). Anti-national act ivity was
defined in Cl. (4)(b) of the Article as 'any action taken by an individual or association' for
any of the purposes specified in sub-cls. (i)-(v) of that Clause, which include (i) support
of cession or secession of the territory of India; (ii) disrupting the sovereignty or integrity
of India; (iii) overthrowing by force the Government by law established; (iv) creating
internal disturbance or disruption of public services; (v) disrupting harmony between
different sections of the people.
Article 31D has, however, been repealedby the Constitution (43rd Amendment) Act, 1977.
Lawyers have no right to go on strike or give a call for boycott, not even a strike. The protest, if any is
required, can only be by giving press statements. TV interviews, carrying out of Court premises,
banners and or placards, wearing black or white or any of the arm bands, peaceful protest marches
outside and away from court premises.19
Freedom of speech plays a crucial role in the formation of public opinion on social, political and
economic matters. Freedom of speech and expression just as equality clause and guarantees of life
and liberty has been broadly construed by the Supreme Court right from 1950. It has been variously
described as a "basic human right", "a natural right" and the like. It embraces within its scope the
 48

freedom of propagation and interchange of ideas, dissemination of information which would help
formation of one's opinion and viewpoint and debates on matter of public concern. So long as the
expression is confined to nationalism, patriotism and love for the motherland, the use of National Flag
by way of expression or those sentiments would be a Fundamental Right. National Anthem, National
Flag and National Song are secular symbols of nationhood. They represent the supreme collective
expression of commitment and loyalty to the nation as well as patriotism for the country. They are
adjuncts of sovereignty being symbols and action associated therewith. If the unity and integrity of
India is to be perceived in diverse situation, the feeling of loyalty, commitment and patriotism can be
judged not only by giving effect to constitutionalism, but also on their secular symbols. Unrestricted
use of National Flag may result in indiscriminate use in procession, meetings, etc. Instances of insults
to National Flag as a matter of protest may also occur. It must certainly be treated with utmost respect
and dignity. This might not be possible without imposing any restriction on its use. Flag Code, though
not a law within the meaning of Art. 13(3), for the purpose of Art. 19(2), it would not restrictively
regulate the free exercise of the right of flying the National Flag. But the Flag Code to the extent it
provides for preserving respect and dignity of National Flag, the provision therein deserves to be
followed. In other words, National Flag cannot suffer any indignity. 20
A threat to go on hunger strike and picketing are forms of symbolic speech and expression. 21

1I.  Of statutory provisions, mention should be made of the Emblems and

Names (Prevention of Improper Use) Act, 1950, which prohibits the use, inter alia, of the
National Flag or the name, emblem or pictorial representation of the national leaders of
India, the President, the Prime Minister or a Governor (as specified in the Schedule to
the Act), for commercial purposes. The restrictions imposed by this Act have been
upheld as 'reasonable restrictions' upon the rights guaranteed by Arts. 19(1)(f)-(g). 22 It
was held therein that "what is in a name" may not always be innocent ... National and
international significance gets attached to certain names or institutions over the years or
ages and then they belong to the nation or to all nations ... Law reflecting national
consciousness, therefore, forbids ordinary commercial woe of the sacred name by
individuals in their own interest as opposed to national interest. The same view should
be taken when the commercial use is blended with some instructive purpose, which may
claim to come under the freedom of expression.
1II.  The Prevention of Insults to National Honour Act , 1971, punishes a person
who insults the National Flag or 'prevents the singing of the National Anthem or causes
disturbance to any assembly engaged in 'Such singing'.
1V.  If a person insults the Constitution of India or the national flag or any
national emblem or the national anthem, by burning, desecration or otherwise, he would
be punishable under s. 124B which is sought to be inserted in the Penal Code, by the
Indian Penal Code (Amendment) Bill, 1972. That Bill has, however, lapsed. But to
respect the National Flag and the National Anthem is made a fundamental duty of every
citizen, under Art. 51A, post, inserted in 1976.
In Shyam Narain Chouksey v. Union of India ,23 following the decision Bijoe Emmanuel v. State of
Kerala ,24 it was held bifurcation of National Anthem into two parts, to create a dramatic impact in the
picture for the benefit of the product should not be allowed. It was held that to permit National Anthem
to be sung as if it is an advertisement for a commercial purpose is absolutely discernible.
[As to failure to honour the National Anthem by singing in a school on religious grounds, see under Art.
25 (1), post].25
Special incidents of forms of expression other than speech
The following special incidents are discussed subsequently, in the context of 'restrictions':
Broadcasting and television,
Theatre,
Cinema,
 49

Video,
Advertisement,
Freedom of the Press,
Distribution of literature,
Freedom of expression of public servants,
Freedom of expression of prisoners.
76 Bury, History of Freedom of Thought, (1913), p. 239.

77 Speiser v. Randall, (1958) 357 US 513 (530).

78 Yates v. U.S., (1958) 354 US 298 (344).

79 Stromberg v. California, (1931) 283 US 359 (369).

80 Palko v. Connecticut, 302 US 319 (1937).

81 NAACP v. Alabama, 357 US 449 (1958).

82 Romesh Thappar v. State of Madras, (1950) SCR 594 (602) : AIR 1950 SC 124.

83 Romesh Thappar v. State of Madras, (1950) SCR 594 (602) : AIR 1950 SC 124.

84 Union of India v. Motion Picture Association, AIR 1999 SC 2334 : (1990) 6 SCC 150.

85 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCR 204 : JT (1989) 2 SC 70.

86 AIR 1978 SC 597 : (1978) 1 SCC 248.

87 Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133 : AIR 1986 SC 872 : 1985 (Supp-3) SCR 382.

88 SeeRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

89 Prakash Jha Production v. UOI, (2011) 8 SCC 372 : (2011) 9 SCALE 265.

90 CIC v. State of Manipur, AIR 2012 SC 864 : (2011) 15 SCC 1.

91 People's Union for Civil Liberties v. UOI, (2013) 10 SCC 1 : (2013) 12 SCALE 165.

92 State of Maharashtra v. Sanghraj Damodar Rupawati, (2010) 7 SCC 398 : (2010) 6 SCALE 667.

93 Secretary, Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal, (1995) 2
SCC 161 : AIR 1995 SC 1236.

94 Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248.

95 People's Union for Civil Liberties v. Union of India, AIR 2003 SC 2363 : (2003) 4 SCC 399.

96 Lily Thomas v. Speaker, Lok Sabha, (1993) 4 SCC 234 : 1993 Supp (1) SCR 791.

97 SeePeople's Union for Civil Liberties v. UOI, (2013) 10 SCC 1 : (2013) 13 JT 133; see alsoPeople's Union for Civil
Liberties v. UOI, AIR 2003 SC 2363 : (2003) 4 SCC 399; UOI v. Assn. for Democratic Rights, AIR 2002 SC 2112 :
(2002) 5 SCC 294.

98 Tiger Muthiah v. State of Tamil Nadu, 2000 (1) CTC 1 : 2000 (1) MLJ 516(Mad. H.C.) .

99 Jennings, Cabinet Government, 3rd Edn., p 14.

100 Bennett Coleman v. Union of India, AIR 1973 SC 106 (138) : (1972) 2 SCC 788; Namboodiripad v. Nambiar, AIR
1970 SC 2015 : (1970) 2 SCC 325; Ram v. State of Bihar, AIR 1975 SC 223 : (1975) 3 SCC 710.

101 Maneka v. Union of India, (1978) 1 SCC 248 (305-6) : AIR 1978 SC 597.

102 Sakal Papers v. Union of India, AIR 1962 SC 305 : (1962) 3 SCR 842.
 50

103 SeeNational Legal Services Authority v. UOI, (2014) 5 SCC 438 : (2014) 5 SCALE 1; see alsoCity of Chicago v.
Wilson, (1978) 7 Illinois 525 : 389 NE 2d 522; Doe v. Yunits et al, 2000 WL 3316, 2199; Massachusetts Superior Court
decision in Doe v. Yunits et al , referred in National Legal Services Authority v. UOI, (2014) 5 SCC 438.

1 Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257 : AIR 2014 SC 1495.

2 (2014) 4 SCC 257 : AIR 2014 SC 1495.

3 (2007) 1 SCC 143 : AIR 2007 SC 493.

4 (1996) 4 SCC 1 : AIR 1996 SC 1846.

5 See alsoRangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 : [1989] 2 SCR 204.

6 S. Khushboo v. Kanniammal, AIR 2010 SC 3196 : (2010) 5 SCC 600.

7 American decisions have been held to be of particular value in interpreting the scope of this right inasmuch as Art.
19(1)(a) is based on the First Amendment to the American Constitution [Express Newspapers v. Union of India, (1958)
SCJ 1113 (1157-8) : AIR 1958 SC 578].

8 Cf. Art. 40(6)(1), Constitution of Eire (Ireland). See alsoAll India Anna DMK v. K. Govindam Kutty, 1996 AIHC
4509(AP HC) .

9 Romesh Thappar v. State of Madras, (1950) SCR 594 (602) : AIR 1950 SC 124.

10 Lovell v. Griffin, (1938) 303 US 444.

11 Cf. Art. 40(6)(1), Constitution of Eire (Ireland). See alsoAll India Anna DMK v. K. Govindam Kutty, 1996 AIHC
4509(AP HC) .

12 See Judicial Review of Public Action by Justice Fazal Karim (Retd. Judge of Pakistan Supreme Court), 2006 Edn.,
Vol. I at p. 735.

13 People's Union for Civil Liberties v. UOI, (2013) 10 SCC 1 : (2013) 12 SCALE 165.

14 National Legal Services Authority v. UOI, (2014) 5 SCC 438 : (2014) 5 SCALE 1 (supra).

15 Avek Sarkar v. State of WB, (2014) 4 SCC 257 : (2014) 2 SCALE 16 (supra).

16 UOI v. Naveen Jindal, AIR 2004 SC 1559 : (2004) 2 SCC 510 (supra).

17 SeeNoise Pollution (V) In re., AIR 2005 SC 3136 : (2005) 5 SCC 733.

18 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248.

19 See Ramlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

20 Express Newspapers v. Union of India, AIR 1958 SC 578 (614) : (1959) SCR 12.

21 Martin v. Struthers, (1943) 319 US 141 (143).

22 Romesh Thappar v. State of Madras, (1950) SCR 594 (602) : AIR 1950 SC 124.

23 Express Newspapers v. Union of India, AIR 1958 SC 578 (614) : (1959) SCR 12.

24 Kovacs v. Cooper, (1949) 336 US 77.

25 Romesh Thappar v. State of Madras, (1950) SCR 594 (602) : AIR 1950 SC 124.

26 Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671 : AIR 1960 SC 554.

27 Reynolds v. U.S., (1978) 98 US 145; Winters v. N .Y.,(1948) 333 US 507 (511, 518).

28 Joseph v. Wilson, (1952) 343 US 495, reversing Mutual Film Corpn. v. Industrial Commission, (1915) 236 US 230.

29 Joseph v. Wilson, (1952) 343 US 495, reversing Mutual Film Corpn. v. Industrial Commission, (1915) 236 US 230.

30 Stromberg v. California, (1931) 283 US 359.

 51

31 Cf. West Virginia Board v. Barnette, (1943) 319 US 624.

32 Cf. Public Utilities Commn. v. Pollak, (1952) 343 US 451; But in determining the reasonableness of restrictions
imposed on purely commercial advertisements, Courts take a liberal attitude [Rast v. Van Denman, (1915) 240 US 342;
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (564) : (1960) 2 SCR 671; see post].

33 Carlson v. California, (1940) 310 US 106.

34 U.S. v. O'Brien, 391 US 367 (1968).

35 Brown v. Louisiana, 383 US 131 (1966).

36 Schacht v. U.S., 378 US 58 (1970).

37 Food Employee v. Logan Valley Plaza, 391 US 308 (1968). But in Hudgens v. NLRB, 424 US 507 (1976) this court
overruled Logan Valley.

38 Barners v. Glen Theatre, 501 US 560 (1991).

39 529 S Ct 277 (2000).

40 Texas v. Johnson, 491 US 397 (1989).

41 Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671.

42 Valentine v. Chrestensen, (1942) 316 US 52.

43 Murdock v. Pennsylvania, (1943) 319 US 105.

44 Martin v. Struthers, (1943) 319 US 141 (143).

45 Mutual Film Corpn. v. Industrial Corpn.,(1915) 236 US 230.

46 Schneider v. Irvingtion, (1942) 308 US 147.

47 See for unlaw conduct Shaffer v. United States, 255 F 886 (9th Cire 1919); Masses Publication Co. v. Pattern, 244 F
535 (SDNY 1917); Schenck v. United States, 249 US 47 (1919); Frohwerk v. United States, 249 US 204 (1919); Debs
v. United States, 249 US 211 (1919); Abrams v. United States, 250 US 616 (1919); Gitlow v. New York, 268 US 652
(1925); Whitney v. California, 274 US 357 (1927); Dennis v. United States, 341 US 494 (1951); Branderburg v. Ohio,
395 US 444 (1969). For Speech Act Threaten:-- Bridges v. California, 314 US 252 (1941); Watts v. United States, 394
US 705 (1969); Planned Parenthood v. American Coalition of Life Activists, 290 F 3d 1058 (9th Cir. 2002). For Speech
that Provokes Hostile Audience Reaction see Terminiello v. Chicago, 337 US 1 (1949); Cantwell v. Connecticut, 310 US
296 (1940); Feiner v. New York, 340 US 315 (1951); Chaplinsky v. New Hampshire, 315 US 568 (1942). For speech
that Discloses Confidential Information : See Landmark Communication Inc. v. Virginia, 435 US 829 (1978); Nebraska
Press Association v. Stuart, 427 US 539 (1976); New York Times G. v. United States; United States v. Washington Post
Co., 403 US 713 (1971).

48 People's Union for Civil Liberties v. Union of India, AIR 2003 SC 2363 : (2003) 4 SCC 399. See alsoAIADMK v.
State Election Commissioner, (2007) 2 MLJ 129(Mad) .

49 All India Bank Employees Association v. National Industrial Tribunal, AIR 1962 SC 171 : (1962) 3 SCR 269. See
alsoNahhera Gopal v. State, (2001) 4 CTC 423(Mad) ; Tiger Muthiah v. State of Tamil Nadu, (2000) 1 MLJ 516 : (2000)
1 CTC 1(Mad) .

50 Anand Patwardhan v. Union of India, AIR 1997 Bom 25.

51 Anirudh Prasad Yadav v. Union of India, 2004 AIHC 1842(All) .

52 F.A. Pictures International v. CBFC, AIR 2005 Bom 145.

53 Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 : 1962 (Supp-3) SCR 369.

54 Home Secretary, Government of Tamil Nadu, (2013) 3 MLJ 513.

55 Ramlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

56 Bharat Bhavan Trust v. Bharat Bhavan Artists' Association, (2001) 7 SCC 630 : AIR 2001 SC 3348 : 2001 (Supp-2)
SCR 27.
 52

57 Noise Pollution v. In Re, AIR 2005 SC 3136 : (2005) 5 SCC 733.

58 Union of India v. Naveen Jindal, AIR 2004 SC 1559 : (2004) 2 SCC 510.

59 Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 : (1986) 3 SCC 615.

60 (1943) 319 US 624.

61 Wooley v. Maynard, (1977) 430 US 705; see alsoPacific Gas & Electric Co. v. Public Utilities Commission, (1986)
475 US 1.

62 (1943) 319 US 624 (supra).

63 Menaka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248.

64 See M.P. Jain, Indian Constitutional Law, 7th Edn., 2013, Vol I, Chapter XXIV at p. 1019.

65 Shamsher Alam v. State of U.P., 2002 AIHC 3475(All) .

66 Kovacs v. Cooper, (1949) 336 US 77.

67 Saia v. N .Y.,(1948) 334 US 558.

68 Winters v. New York, (1948) 333 US 507.

69 Winters v. New York, (1948) 333 US 507.

70 Thomas v. Collins, (1945) 323 US 516 (531).

71 Douglas v. Jeanette, (1943) 319 US 157 (179).

72 Thornhill v. Alabama, (1950) 310 US 88, (102).

73 Thornhill v. Alabama, (1950) 310 US 88, (102).

74 Thomas v. Collins, (1945) 323 US 516 (531).

75 N.A.A.C.P. v. Button, (1962) 371 US 415 (429, 443, 453).

76 (1989) 491 US 397.

77 Hudgent v. N.L.R.B., 424 US 507 (1976).

78 Frisby v. Shuttz, 487 US 474 (1988).

79 (2000) 530 US 703.

80 Time Inc. v. Hill, (1967) 385 US 374 (388).

81 Thornhill v. Alabama, (1950) 310 US 88, (102).

82 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : (1960) 2 SCR 671.

83 Valentine v. F.J. Chrestensen, 316 US 2 (1942).

84 William B. Cammarano v. United States, 358 US 498 (1959).

85 Jeffrey Cole Bigelow v. Commonwealth of Virginia, 421 US 809 (1975). See alsoRoe v. Wade, (1973) 410 US 113.

86 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : (1960) 2 SCR 671 (supra).

87 Tata Press Ltd. v. Mahanagar Telephone Nigam Limited, AIR 1995 SC 2438 : (1995) 5 SCC 139.

88 (1976) 425 US 748.

89 (1980) 447 US 557.

90 (2001) 533 US 525.

 53

91 T.N. Outdoor Advertising Association v. Government of Tamil Nadu, (2001) 2 CTC 103(Mad) .

92 T. Rajagopal v. RTA, AIR 2007 Karn 103.

93 Amant v. Thompson, (1968) 390 US 727 (732).

94 Slochower v. Board of Education, (1956) 350 US 551.

95 Winters v. New York, (1948) 333 US 507.

96 Garrison v. Louisiana, (1964) 379 US 64 (75).

97 Roth v. U.S., (1957) 354 US 476. See alsoS. Khushboo v. Kanniammal, AIR 2010 SC 3196 : (2010) 5 SCC 600.

98 Baumgartner v. U.S., (1944) 322 US 665 (673-4).

99 Organisation for a Better Austin v. Keefe, (1971) 402 US 415 (419). See alsoS. Khushboo v. Kanniammal, AIR 2010
SC 3196 : (2010) 5 SCC 600; Nebraska Press Assn. v. Stuart, (1976) 427 US 539; New York Times v. US, (1971) 403
US 713.

100 Naraindas v. State of M.P., (1974) 4 SCC 788 (816) : AIR 1974 SC 1232.

101 Abrams v. U.S., (1919) 250 US 616.

102 Naraindas v. State of M.P., (1974) 4 SCC 788 (816) : AIR 1974 SC 1232.

103 Kushwant Singh v. Maneka Gandhi, AIR 2002 Del 58.

1 Rowan v. Post Office Department, 397 US. 728 (1970).

2 397 US 728 (1970).

3 Covacs v. Cooper, 336 US 77 (1949).

4 Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, (1975) 1 SCC 11 : AIR 1974 SC
2098 : (1975) 2 SCR 317.

5 Church of God v. K.K.R. Majestic Colony, AIR 2000 SC 2773 : (2000) 7 SCC 282.

6 SeeRamlila Maidan Incident, In re., (2012) 5 SCC 1; D.C. Saxena v. Chief Justice of India, AIR 1996 SC 2481 :
(1996) 5 SCC 216.

7 Noise Pollution v. In Re., AIR 2005 SC 3136 : (2005) 5 SCC 733.

8 Schacht v. U.S., (1970) 398 US 58 (63).

9 Baldev Singh Gandhi v. State of Punjab, AIR 2002 SC 1124 : (2002) 3 SCC 667.

10 Naraindas v. State of M.P., (1974) 4 SCC 788 (816) : AIR 1974 SC 1232.

11 Whitney v. California, (1927) 274 US 357 (375-78).

12 Whitney v. California, (1927) 274 US 357 (375-78).

13 Sahara India Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603 : AIR 2012 SC 3829.

14 Brij Bushan v. State of Delhi, AIR 1950 SC 129.

15 Sir Alfred Denning L.J. in Hamlyn Lecture on Freedom of Mind and Conscience, "Freedom Under the Law", p. 35.

16 (337) US 1 (1949) : 93 L.Ed. 1131.

17 American Communication Association v. Douds, (339) US 382 : 94 L.Ed. 925.

18 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCR 204.

19 F.A. Pictures International v. C.B.F.C., AIR 2005 Bom 145.

 54

20 SeePrakash Jah Production v. UOI, (2011) 8 SCC 372 : (2011) 9 SCALE 165.

21 Vasu Kottal v. Kerala Kalamandalam, (2013) 3 KLT (SN) 106.

22 People's Union for Civil Liberties (PUCL) v. Union of India, AIR 1997 SC 568 : (1997) 1 SCC 301.

23 New Road Brothers v. Comm. of Police, Ernakulam, AIR 1999 Ker 262.

24 Jamuna Prasad v. Lachmi Ram, AIR 1954 SC 686 : (1955) 1 SCR 608. See alsoK. Krishna Murthy v. UOI, (2010) 7
SCC 202 : (2010) 6 SCR 601.

25 People's Union for Civil Liberties v. UOI, (2013) 10 SCC 1; UOI v. Assn. for Democratic Rights, (2002) 5 SCC 294 :
AIR 2002 SC 2112; People's Union for Civil Liberties v. UOI, (2003) 4 SCC 399 : AIR 2003 SC 2363; Kuldip Nayar v.
UOI, (2006) 7 SCC 1. See alsoN.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64 : (1952) SCR 218; Jyoti Basu v.
Debi Ghosal, AIR 1982 SC 983 : (1982) 1 SCC 691; Nalla Thampy v. B.L. Shankar, AIR 1984 SC 135 : 1984 (Supp)
SCC 631; Anukul Chandra Pradhan v. UOI, AIR 1997 SC 2814 : (1997) 6 SCC 1.

26 Ebrahim Sulaiman Sait v. M.C. Mohammed, (1980) 1 SCC 398.

27 Gajanan Narayanan Patel v. Dattatraya Waman Patel, (1990) 3 SCC 634 : AIR 1990 SC 1023.

28 Javed v. State of Haryana, AIR 2003 SC 3057 : (2003) 8 SCC 369.

29 Jagan Nath v. Jaswath Singh, (1982) 1 SCC 691.

30 Dharam Dutt v. Union of India, (2004) 1 SCC 712.

31 AIR 1997 SC 2814 : (1997) 6 SCC 1(supra).

32 See M.P. Jain, Indian Constitutional Law, 6th Edn., Vol. I at pp. 1145-1146.

33 People's Union for Civil Liberties v. UOI, (2013) 10 SCC 1 : (2013) 12 SCALE 165.

34 Maneka v. Union of India, AIR 1978 SC 597 (640-41; 644-45) : (1978) 1 SCC 248.

35 Ozair Hussain v. Union of India, AIR 2003 Del 103.

36 Peoples' Union for Civil Liberties v. Union of India, AIR 2003 SC 2363 : (2003) 4SCC 399; Union of India v.
Association of Democratic Reforms, (2002) 5 SCC 294 : AIR 2002 SC 2112.

37 Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 : JT 1997 4 SC 237.

38 S.P. Gupta v. Union of India, AIR 1982 SC 149 : 1981 (Supp.) SCC 87.

39 (1995) 2 SCC 161 : AIR 1995 1236.

40 SeeNamit Sharma v. UOI, (2013) 1 SCC 745 : (2012) 8 SCALE 593.

41 Peoples' Union for Civil Liberties v. Union of India, (2004) 2 SCC 476 : AIR 2004 SC 1442.

42 SeeNamit Sharma v. UOI, (2013) 1 SCC 745 : (2012) 8 SCALE 593.

43 S.P. Anand v. UOI, AIR 2000 MP 47 : (2000) 2 MPLJ 427.

44 Amant v. Thompson, (1968) 390 US 727 (732); Cf. West Virginia Board v. Barnett, (1943) 319 US 624; Wooley v.
Maynard, (1977) 430 US 705 (714).

45 Cf. West Virginia Board v. Barnett, (1943) 319 US 624.

46 Beilan v. Board of Public Education, (1957) 357 US 399.

47 Cf. West Virginia Board v. Barnett, (1943) 319 US 624.

48 Speiser v. Randall, (1957) 357 US 513 (529).

49 Cf. West Virginia Board v. Barnett, (1943) 319 US 624.

50 Wooley v. Maynard, (1977) 430 US 705 (714). See alsoHurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, 515 US 557 (1995).
 55

51 National Assocn. v. Alabama, (1958) 357 US 449; Konigsberg v. State Bar of California, (1957) 353 US 252.

52 Cf. West Virginia Board v. Barnett, (1943) 319 US 624.

53 Sharda v. Dharmpal, (2003) 4 SCC 493 : AIR 2003 SC 3450.

54 Garner v. Board of Public Works, (1951) 341 US 716 (720).

55 Beilan v. Board of Public Education, (1957) 357 US 399.

56 Beilan v. Board of Public Education, (1957) 357 US 399.

57 Gerenede v. Board of Supervision, (1951) 341 US 56.

58 Gerenede v. Board of Supervision, (1951) 341 US 56.

59 Beilan v. Board of Public Education, (1957) 357 US 399.

60 Uphaus v. Wyman, (1958) 360 US 72 (80).

61 Uphaus v. Wyman, (1958) 360 US 72 (80).

62 American Communication v. Douds, (1950) 339 US 382.

63 Garner v. Board of Public Works, (1951) 341 US 716 (720).

64 Uphaus v. Wyman, (1958) 360 US 72 (80); Cantwell v. Connecticut, (1940) 310 US 296 (307).

65 Watkins v. U.S., (1957) 354 US 178.

66 Zauderer v. Disciplinary Counsel, (1985) 471 US 626.

67 Miami Herald v. Tornillo, (1974) 418 US 241 (258).

68 Pittsburg Press v. H .R.C.,(1973) 413 US 376 (400).

69 Pacific Gas v. P .U.C.,(1985) 475 US 1 (11); Buckley v. Valeo, (1976) 424 US 1 (49).

70 Hathising Mfg. Co. v. Union of India, AIR 1960 SC 923 (928) : (1960) 3 SCR 528.

71 P.A. Jacob v. S.P. Kottayam, AIR 1963 Ker 1 approved in Noise Pollution, In Re, AIR 2005 SC 2136 : (2005) 5 SCC
733.

72 Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, AIR 2003 SC 1709 : (2003) 3 SCC 437 : (2003) II LLJ 523.

73 Bongaigaon Refinary & Petrochemicals Ltd v. Samijuddin Ahmed, (2001) 9 SCC 557 : (2001) II LLJ 1149.

74 Sanjay Kumar Bajpai v. Union of India, (1997) 10 SCC 312.

75 Devendera Kumar v. State of Uttaranchal, AIR 2013 SC 3325 : (2013) 9 SCC 363; see alsoState of West Bengal v.
Sk. Nazrul Islam, (2011) 10 SCC 184 : AIR 2012 SC 160; Jainendra Singh v. State of UP, (2012) 8 SCC 748 : (2012) 7
JT 307.

76 Excel Wear v. Union of India, (1978) 4 SCC 224 : AIR 1979 SC 25.

77 Orissa Textile & Steel Ltd v. State of Orissa, AIR 2002 SC 708 : (2002) 2 SCC 578; Workmen v. Meenakshi Mills
Ltd., (1992) 3 SCC 336 : AIR 1994 SC 2696 : (1992) II LLJ 294.

78 For a fuller discussion, see Author's Law of the Press.

79 Landmark v. Virginia, (1978) 435 US 829.

80 Snopp. v. U.S., (1980) 444 US 507.

81 Haig v. Agee, (1981) 453 US 280.

82 Branzburg v. Hayes, (1972) 408 US 665 (681).

 56

83 See Author's Administrative Law; Schwartz, Administrative Law, 2nd Edn., pp. 129 ff., 676 ff.

84 Cf. Chrysler Corpn. v. Brown, (1979) 441 US 281. [Under this Act, a governmental authority has the right to supply
information which would (i) interfere with criminal proceedings or with fair trial; (ii) imperil the safety of enforcement
personnel; (iii) disclose confidential information secured by national security investigation; (iv) constitute unwarranted
invasion of personal privacy. See also the Canadian Right to Information Act , 1980-83].

85 Cf. Chrysler Corpn. v. Brown, (1979) 441 US 281. [Under this Act, a governmental authority has the right to supply
information which would (i) interfere with criminal proceedings or with fair trial; (ii) imperil the safety of enforcement
personnel; (iii) disclose confidential information secured by national security investigation; (iv) constitute unwarranted
invasion of personal privacy. See also the Canadian Right to Information Act , 1980-83].

86 Cf. Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671 : AIR 1960 SC 554. [This right is expressly
guaranteed by Art. 19(2) of the International Covenant, 1966 and Art. 10(1) of the European Convention, 1953: vide
SCW 66, 68].

87 Cf. De Jonge v. Oregon, (1937) 299 US 353 (365).

88 Near v. Minnesota, (1913) 283 US 697 (719-20); Cf. A.G. v. Times, (1973) 3 All ER 54.

89 Cf. De Jonge v. Oregon, (1937) 299 US 353 (365); Cf. New York Times v. U.S., (1971) 403 US 713 (717, 724, 728).

90 Association of Democratic Reforms v. UOI, AIR 2001 Del 126.

91 SeeState of UP v. Raj Narain, AIR 1975 SC 865 : (1975) 4 SCC 428; see alsoS.P. Gupta v. UOI, AIR 1982 SC 149 :
1981 (Supp) SCC 87; Association of Democratic Reforms v. UOI, AIR 2001 Del 126.

92 CIC v. State of Manipur, AIR 2012 SC 864 : (2011) 15 SCC 1.

93 AIR 2012 SC 864 : (2011) 15 SCC 1.

94 See alsoICAI v. Shaunak H. Satya, AIR 2011 SC 3336 : (2011) 8 SCC 781; Aditya Bandopadhyaya, (2011) 8 SCC
497 : (2011) 8 SCALE 645.

95 Cf. New York Times v. U.S., (1971) 403 US 713 (717, 724, 728).

96 Cf. New York Times v. U.S., (1971) 403 US 713 (717, 724, 728).

97 R.P. Ltd. v. Indian Express, AIR 1989 SC 190 : (1988) 4 SCC 592 (para 35); Indian Express v. Union of India, AIR
1986 SC 515 : (1985) 1 SCC 641 (para 66).

98 R.P. Ltd. v. Indian Express, AIR 1989 SC 190 : (1988) 4 SCC 592 (para 35); Indian Express v. Union of India, AIR
1986 SC 515 : (1985) 1 SCC 641 (para 66); Gupta v. President, AIR 1982 SC 149 : 1981 Supp SCC 87 (para s. 66,
81)--7 Judges. See also Nakkeragopal v. State of Tamil Nadu, (2001) 4 CTC 423(Mad) . See alsoAssociation for
Democratic Reforms v. UOI, AIR 2001 Del 126; People's Union for Civil Liberties v. UOI, AIR 2004 SC 1442 : (2004) 2
SCC 476.

99 AIR 1989 SC 190 : (1988) 4 SCC 592.

100 Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Assn. of Bengal, AIR 1995 SC
1236 : (1995) 2 SCC 161.

101 Namit Sharma v. UOI, (2013) 1 SCC 745 : (2012) 8 SCALE 593.

102 Hindustan Times v. High Court of Allahabad, (2011) 13 SCC 155 : (2011) 9 SCALE 532.

103 S.P. Anand v. Union of India, AIR 2000 MP 47.

104 R.P. Ltd. v. Indian Express, AIR 1989 SC 190 : (1988) 4 SCC 592 (para 35); Indian Express v. Union of India, AIR
1986 SC 515 : (1985) 1 SCC 641 (para 66).

105 Essar Oil Ltd. v. Halar Utkarsh Samithi, (2004) 2 SCC 392 : AIR 2004 SC 1834.

106 R.P. Ltd. v. Indian Express, AIR 1989 SC 190 : (1988) 4 SCC 592 (para 35); Indian Express v. Union of India, AIR
1986 SC 515 : (1985) 1 SCC 641 (para 66).

107 Hanif Nanji Gawda v. State of Karnataka, 1997 AIHC 78(Kant) .

108 Ozair Hussain v. Union of India, AIR 2003 Del 103.

 57

1 Association for Democratic Reforms v. Union of India, AIR 2001 Del 126.

2 Secretary, Ministry of Information and Broad Casting v. Cricket Association, Bengal, AIR 1995 SC 1236 : (1995) 2
SCC 161.

3 (1997) 4 SCC 306 : (1997) 3 SCALE 117.

4 Namit Sharma v. UOI, (2013) 1 SCC 745 : (2012) 8 SCALE 593.

5 (1995) 2 SCC 161 : AIR 1995 SC 1236 (supra).

6 Prabha v. Union of India, AIR 1982 SC 6 : (1982) 1 SCC 1.

7 Khanapuram Gandaih v. Administrative Officer, AIR 2012 SC 615 : (2012) 2 SCC 1.

8 Koolwal v. State, AIR 1988 Raj 2 (para 3).

9 Peoples' Union for Civil Liberties v. Union of India, AIR 2004 SC 1442 : (2004) 2 SCC 476.

10 SeeKlass v. Federal Republic of Germany, (1979-80) 2 EHRR 214.

11 Ireland v. UK, (1978) 2 EHRR 25; Observer & Guardian Newspapers v. UK, (1992) 14 EHRR 153.

12 State of U.P. v. Raj Narain, AIR 1975 SC 865 (884) : (1975) 4 SCC 428.

13 Gupta v. President, AIR 1982 SC 149 : 1981 Supp SCC 87 (para s. 66, 81)--7 Judges.

14 Gupta v. President, AIR 1982 SC 149 : 1981 Supp SCC 87 (para s. 66, 81)--7 Judges.

15 Gupta v. President, AIR 1982 SC 149 : 1981 Supp SCC 87 (para s. 66, 81)--7 Judges.

16 D.V. National Society for the Prevention of Cruelty to Children, (1977) 2 WLR 207 : (1977) 1 All ER 589(HL) .

17 Sathyanarayana Brothers (P) Ltd. v. T.N. Water Supply & Drainage Board, (2004) 5 SCC 314.

18 Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112 : (2002) 5 SCC 294.

19 AIR 2002 SC 2112 : (2002) 5 SCC 294.

20 SeeIndira Jaising v. Registrar-General, Supreme Court of India, (2003) 5 SCC 494 : (2005) 11 JT 552.

21 Peoples' Union for Civil Liberties v. Union of India, AIR 2004 SC 1442 : (2004) 2 SCC 476.

22 State of U.P. v. Raj Narain, (1975) 4 SCC 428 : (1975) 3 SCR 333 - by MATHEW J.

23 SeeRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

24 F.A. Picture International v. Central Board of Film Certification, AIR 2005 Bom 145.

25 Freedom of Information by JUSTICE V.R. KRISHNA IYER as incorporated in Namit Sharma v. UOI, (2013) 1 SCC
745 : (2012) 8 SCALE 593 (supra).

26 Namit Sharma v. UOI, (2013) 1 SCC 745 : (2012) 8 SCALE 593 (supra).

27 See Union of India v. Namit Sharma, 2013 AIR SCW 5382 : 2013 Lab IC 4231.

28 (1965) 381 US 476.

29 (1925) 268 US 510.

30 (1923) 262 US 390.

31 (1958) 357 US 449.

32 (1973) 410 US 113.

33 Palka v. Connecticut, (1937) 302 US 319; see also Roe v. Wade, (1973) 410 US 113.
 58

34 R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.

35 Govind v. State of MP, AIR 1975 SC 1378 : (1975) 2 SCC 148.

36 Khushwant Singh v. Maneka Gandhi, AIR 2002 Del 58.

37 AIR 1981 SC 760 : (1981) 1 SCC 420.

38 See alsoPremchand v. UOI, AIR 1981 SC 613 : (1981) 1 SCC 639; Rupinder Singh v. UOI, AIR 1983 SC 65 :
(1983) 1 SCC 140.

39 Moti Sunar v. State of UP, (1997) CrLJ 2260(All) ; see also Kharak Singh v. State of UP, AIR 1963 SC 1295: (1964)
1 SCR 332 (supra).

40 Himsa Virodhak Sangh v. Mirzapur Moti Kureshi Jamat, AIR 2008 SC 1892 : (2008) 5 SCC 33.

41 Kotak Mahindra Bank Ltd. v. Hindustan National Gas & Industries Ltd., (2013) 7 SCC 369 : (2013) 1 JT 60.

42 Peoples' Union for Civil Liberties v. Union of India, (1997) 1 SCC 301 : AIR 1997 SC 568.

43 Gobind v. State M.P., AIR 1975 SC 1378 : (1975) 2 SCC 148.

44 Noise Pollution v. In Re., (2005) 5 SCC 733; P.A. Jacob v. Supt. of Police, (1995) ILW 319 (Madras - approved).

45 See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law, 13th Edn., at p. 494.

46 AIR 1975 SC 1378 : (1975) 2 SCC 148.

47 X v. Iceland, (1976) 5 DR 86 E. Comm. HR; McLorie v. Oxford, (1982) 1 QB 1290; Argyll (Duchess) v. Argyll (Duke),
(1967) 1 Ch. 302; X v. Y, (1990) 1 QB 220.

48 X v. Hospital Z, (2003) 1 SCC 500; Also see Y v. Hospital Z, (1998) 8 SCC 296.

49 W v. Edgell, (1990) 1 Ch. 359.

50 AG v. Mulholand, (1963) 2 QB 477.

51 Argyll Dutchess v. Argyll (Duke), (1967) 1 Ch. 302; Baldev Singh v. Surinder Mohan Sharma, (2013) 1 SCC 34.

52 Beloff v. Pressdram Ltd., (1973) 1 All ER 260; R v. The Department of Health, (2000) 1 All ER 786.

53 Gartside v. Outram, (1857) 26 LJ Ch. 113.

54 Schering Chemicals Ltd. v. Falkram Ltd., (1982) 1 QB 1.

55 Stephens v. Avery, (1988) Ch. 449.

56 See D.D. Basu, Human Rights and Constitutional Law, 2nd Edn., at p. 408.

57 (1998) 8 SCC 296 : AIR 1999 SC 495 (supra).

58 Peoples' Union for Civil Liberties v. Union of India, AIR 2003 SC 2363 : (2003) 4 SCC 399.

59 State of Maharashtra v. Madukar Narayan Mandikar, AIR 1991 SC 207 : (1991) 1 SCC 57.

60 (1978) 1 SCC 248 : AIR 1978 SC 597.

61 (1964) 1 SCR 332 : AIR 1963 SC 1295.

62 Govind v. State of M.P., AIR 1975 SC 1378 : (1975) 2 SCC 148 (supra).

63 District Registrar & Collector v. Canara Bank, AIR 2005 SC 186 : (2005) 1 SCC 496.

64 R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.

65 R. Rajagopal @ R.R. Gopal @ Nakkeram Gopal v. J. Jayalalitha, (2006) 2 LW 377 : (2006) 2 MLJ 689 (Madras HC).
See also His Holiness Shamar Rimpoche v. Lea Terhune, AIR 2005 Del 167; Khushwant Singh v. Maneka Gandhi, AIR
2002 Del 58; S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574. See also "Right to Publicity; Is it Encompassed in
the Right to Privacy?" by Subhashini Narasimhan and Thriyambak J. Kannan, (2005) 5 SCC Journal Section 5.
 59

66 Leonard Hector v. Attorney General of Antiqua and Berbuda, (1990) 2 AC 312(PC) .

67 Directorate of Revenue v. Mohd. Nisar Holia, (2008) 2 SCC 370 : (2007) 13 SCALE 744.

68 For the text of the Indian Act, see Author's Law of the Press.

69 Landmark Communication Inc. v. Virginia, 435 US 829 (1978).

70 See Cox Broadcasting Crop. v. Cohn, 420 US 469 (1975) (where the broadcaster was held not liable for damages
for publishing a rape victim; name, where the name is available from lawfully obtained from examining a copy of
indictment); Oklahoma Publishing Co. v. District Court, 430 US 308 (1977) (where the name of juvenile offender was
published obtained from court proceedings); Smith v. Daily Publishing Co., 443 US 97 (1979) (where the juveniles
name was published and photographed which was obtained from several witnesses, from the police and prosecutors at
the scene); Butterworth v. Smith, 494 US 624 (1990) (where grand jury witnesses cannot be generally be prohibited
from publicly disclosing their own testimony).

71 (1991) 501 US 663.

72 The Florida Star v. BFJ, (1989) 491 US 524.

73 Cf. Larkins v. State, (1985) CrLJ 377 (para 2) Del.

74 State v. Jaspal, (1984) CrLJ 1211 (para 9) SC.

75 (1990) 1 AC 109.

76 Ram v. State, (1986) CrLJ 526(Del) .

77 R. v. Socialist Publishers, (1975) 1 All ER 142; Supdt. v. Bhowmick, AIR 1981 SC 917 : (1981) 2 SCC 635 (paras.
11 ff).

78 Secy. of State v. Guardian, (1985) AC 339.

79 AG v. Guardian Newspapers Ltd., (No.2) (1990) 1 AC 109 (supra).

80 AG v. Guardian Newspapers , (No.2) (1990) 1 AC 109 (supra); see alsoInitial Services Ltd. v. Putterill, (1968) 1 QB
396; Woolgar v. Chief Constable of Sussex, (2001) 1 WLR 25.

81 For a fuller discussion, see Author's Law of the Press.

82 Peoples' Union for Civil Liberties v. Union of India, AIR 2004 SC 1442 : (2004) 2 SCC 476

83 Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61 : (2013) 2 LW 293 : (2013) 1
KLT 16; see alsoICAI v. Shanuak H. Satya, (2011) 8 SCC 781 : AIR 2011 SC 3336.

84 SeeGirish Ramachandra Despande v. CIC, AIR 2012 SC (Supp) 690 : (2013) 1 SCC 212.

85 R.K. Jain v. UOI, (2013) 14 SCC 794 : (2013) 3 LW 899.

86 Teamsters v. Vogt, (1957) 354 US 284 (289-90).

87 A Constitutional Faith by Hugo L Black J, reprinted in Craig R. Ducat, Constitutional Interpretation, 8th Edn., 2002,
p. 777.

88 Hudgent v. NLRB, 424 US 507 (1976).

89 (1984) 468 US 288.

90 DPP v. Broome, (1974) AC 587.

91 (1967) 1 QB 91.

92 Frisby v. Shyltz, 487 US 474 (1988).

93 Arcara v. Cloud Books, (1986) 106 S Ct 3172 (3176-78).

94 Village of Schaumberg v. Citizens, (1980) 444 US 620 (629, 632).

 60

95 Village of Schaumberg v. Citizens, (1980) 444 US 620 (629, 632).

96 Village of Schaumberg v. Citizens, (1980) 444 US 620 (629, 632).

97 Village of Schaumberg v. Citizens, (1980) 444 US 620 (629, 632).

98 Tinker v. Des Moines, (1969) 393 US 503 (508, 514).

99 Spence v. Washington, (1974) 418 US 405.

100 Tinker v. Des Moines, (1969) 393 US 503 (508, 514).

101 U.S. v. O 'Brien, (1968) 391 US 367 (377); Cf. Wayte v. U.S., (1985) 470 US 225.

102 U.S. v. O 'Brien, (1968) 391 US 367 (377); Cf. Wayte v. U.S., (1985) 470 US 225.

103 U.S. v. O 'Brien, (1968) 391 US 367 (377); Cf. Wayte v. U.S., (1985) 470 US 225.

104 U.S. v. O 'Brien, (1968) 391 US 367 (377); Cf. Wayte v. U.S., (1985) 470 US 225.

1 Stromberg v. California, (1931) 283 US 359; Street v. N .Y.,(1969) 394 US 576.

2 Schacht v. U.S., (1970) 398 US 58.

3 Street v. Newyork, 394 US 576 (1969).

4 Spence v. Washington, 418 US 405 (1974).

5 See also Texas v. Johnson, 491 US 397 (1989); United States v. Eichman, 486 US 310 (1990).

6 U.S. v. O 'Brien, (1968) 391 US 367 (377); Cf. Wayte v. U.S., (1985) 470 US 225.

7 U.S. v. O 'Brien, (1968) 391 US 367 (377); Cf. Wayte v. U.S., (1985) 470 US 225.

8 (1991) 501 US 560.

9 (1968) 391 US 367 (supra).

10 Tinker v. Des Moines, (1969) 393 US 503 (508, 514).

11 Tinker v. Des Moines, (1969) 393 US 503 (508, 514).

12 Tinker v. Des Moines, (1969) 393 US 503 (508, 514).

13 U.S. v. O 'Brien, (1968) 391 US 367 (377); Cf. Wayte v. U.S., (1985) 470 US 225.

14 Stromberg v. California, (1931) 283 US 359 (supra).

15 West Virginia State Board of Education v. Barnettee, (1943) 319 US 624.

16 Minersville School District v. Gobiti, 310 US 586.

17 See also Donal v. Board of Education for the City Hamilton, (1945) Ontario Reports 518; Sheldon v. Fannies, 221 F.
Supp. 766 (1963).

18 Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 : (1986) 3 SCC 615.

19 Harish Uppal v. Union of India, AIR 2003 SC 739 : (2003) 2 SCC 45.

20 UOI v. Naveen Jindal, AIR 2004 SC 1559 : (2004) 2 SCC 510. See also Art. 51A(a) of Part IVA the of Constitution.

21 Ramlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

22 Sable v. Union of India, AIR 1975 SC 1172 : (1975) 1 SCC 763.

23 Shyam Narain Chouksey v. Union of India, AIR 2003 M.P. 233.

24 Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 : (1986) 4 SCC 615.
 61

25 Cf. Emmanuel v. State of Kerala, AIR 1987 SC 748 [review petition pending] : (1986) 3 SCC 615.

CLAUSE (2) : RESTRICTIONS UPON FREEDOM OF SPEECH AND

EXPRESSION
It has already been pointed out that in no country is there any absolute freedom of expression.

OTHER CONSTITUTIONS
U.K.B.

1A)  England.--In England, the limit of the freedoms is that imposed by the
ordinary law (including common law and statute) relating to defamation, sedition,
blasphemy, obscenity, contempt of Court and public order. 26 Parliamentary supremacy
prevents the existence of a right to freedom of expression as such. Freedom of
expression, particularly in its political form, is treated as a fundamental right that requires
clear statutory authority to restrict.27This is reinforced by the ECHR as incorporated in the
Human Rights Act 1998 which accommodates freedom of expression with other
concerns by providing a list of overrides to that freedom. Article 10 confers the right to
freedom of expression "subject to duties and responsibilities". These entitle the State to
limit freedom of expression for the following purposes: (a) National Security; (b) territorial
integrity and public safety; (c) prevention of disorder or crime; (d) protection of health or
morals; (e) protection of the reputation or right of others. In particular, freedom of
expression may have to be compromised by the right to a fair trial (Art. 6), privacy (Art.
8) and freedom of religion (Art. 9); (f) maintaining the authority and impartiality of
judiciary.
Numerous Acts have either removed or restricted freedom of expression for the following purposes:
security, public order and safety, protection against misleading advertising and professional claims;
intellectual property right such as copyright, the independence of judicial proceedings in particular
comment on pending criminal trials that create a 'substantial risk' or influencing a jury ( Contempt of
Courts Act , 1981--s. 2); sexual morality, combating racial hatred, reputation, personal privacy and
confidentiality, the protection of children (e.g., Children Act, 1989),28 religious susceptibility,
harassment and fairness at election.
U.S.A.

1B)  U.S.A.--This is substantially the law also in the United States, where
reasonable restrictions have been imposed by the Judiciary, 29 under the doctrine of
'Police power of the State,' on grounds of protection of the State from internal and
external aggression, public order, and safety,30 prevention of obscenity,31 libel and
slander, and contempt of court, There is however, no reference to 'blasphemy' and
instead of 'sedition', we have such words in the pronouncements of the Supreme Court,
as "acts of violence and the overthrow by force of orderly Government", 32"overthrow of
established Government by force or unlawful means";33 and the limitation imposed by the
Constitution itself by the word "treason" [Art. III, s. 3(1)].
[See, further, under 'Grounds of Restriction', post].
Previous Restraint
I. As to the nature of the restrictions permissible, the general rule is that any form of previous restraint
is regarded, on the face of it,34 as an abridgement of the freedom of expression. 35(Censorship of the
Press is dealt with separately; see post).
 62

Prior restraints which may involve either governmental licensing of publication or bans on publication
of particular information, impose a particularly severe burden on communication. To require
governmental approval prior to publication brings more materials under official scrutiny and at
minimum delays even constitutionally protected expression. In addition, the decision to censor is
typically reached without the adversarial proceedings and procedural safeguards that accompany
criminal prosecution. For these reasons, English law by the late Seventeenth Century had recognised
that freedom from prior restraints was essential to freedom of press.
According to MASSEY "Prior restraints as speech are the most disfavoured of speech restrictions and
are presumptively void. Stifling speech before it occurs may be void even though the speech
suppressed might validly be subject to criminal punishment or civil liability after the fact... A prior
restraint is an administration or judicial order that prohibits speech before it occurs and it does so on
the basis of the speech content. Only content based restriction on speech before it occurs are prior
restraints. A content neutral ban on speech before the fact is permissible if its purpose and effect are
not to suppress ideas but to advance legitimate State interests unrelated to the suppression of
speech. Where the injunction is issued to "control prior unlawful conduct" and not issued to control
expression is not a prior restraint."36 In Near v. Minnesota ,37 the Court struck down State law that
permitted judges to enjoin publication of "malicious, scandalous are defamatory" newspapers. The
Court observed that a State had a legitimate interest in curbing such publication and could prosecute
those who published them, but argued that this interest did not justify prior restraints against
publication as such restraints could be tolerated only in "exceptional cases". According to learned
judges, prior restraints were impermissible unless the publication involved jeopardized the country's
safety in wartime, threatened public decency (obscenity) incited violence or governmental overthrow
or invades private rights. In that case, the court recognised that liberty of the Press consists in laying
no previous restraints upon publication and not in the freedom from censure for criminal matter when
published. By recognising that the freedom of the Press was inadequate because the First
Amendment also encompassed some limitation on the sort of sanction that could be imposed after
publication, the court appeared at the very outset to demonstrate a keen awareness of nation's
"chilling effect" (the idea that the prospect of severe sanction could deter publication in the first place
and then indirectly operate as a form of price restraint). 38
Thus, the following laws have been invalidated, on the present ground--

6i)  Requiring a person who solicits membership of an Organisation requiring

fees from its members,39 or a labour union,40 or a religious purpose41 without obtaining a
permit from a State official, to be granted at the uncontrolled 42 will or opinion43 of the
latter, as distinguished from licensing according to definite standards laid down in the
statute44 [see post].

6ii)  The principle has been applied to the holding of meetings for public
speeches45 (see post), or advocacy of any cause from door to door46 (see post).
The rule invalidating prior restraints is, however, subject to the following exceptions:

7i)  Injunction may be issued by a court against uttering words which have the
effect of force47 and incite act s of violence.48

7ii)  While an injunction against the dissemination of future issues of a

publication on the ground that its past issues have been found offensive against public
morals has been held to be in the nature 'of a previous restraint; 49 a temporary injunction
restraining the dissemination, pendente lite, of current issues of a publication prima facie
found to be obscene, does not constitute a prior restraint. 50 Punishment after the fact of
speech are not prior restraint.51"It is always difficult to know in advance what an
individual will have to say."52[see, further, under 'Freedom of the Press', post].
 63

4iii)  Censorship of cinematograph films is permissible, provided a definite stan-

dard is laid down by the law for the guidance of the censors. 53[See post].

3iv)  The rule against prior restraint does not preclude the licensing of acts which,
in their very nature, require regulation in the public interests (as distinguished from
censorship of the contents of the speech or other representation which is licensed).
Thus, in the interests of public order, the time, place and the like of speeches in public
places may be regulated,54 provided definite standards are laid down by the law for such
regulation.55 In the USA, the Supreme Court has systematically invalidated any system of
licensing on the freedom of Press as unconstitutional e.g., the requirement of permission
for publishing or distributing printed matter. 56 But it has been acknowledged that a
municipality has the power to regulate the use of its streets or other public places to
regulate traffic, to ensure convenience and comfort of neighbours and the like. Such a
regulation would not be invalid so long as there is no restriction upon the communication
of ideas as such.57
'Clear and present danger' test
II. As to the occasion where the State is entitled to interferes legislation abridging the freedom of
expression or of the Press would be upheld as valid by the Courts only if the curtailment of liberty is
justified by the "clear and present danger test" 58viz., that the utterance, if allowed, would really imperil
safety,--"the substantive evil must be extremely serious and the decree of imminence extremely
high".59 The question in every case is whether the words used are needed in such circumstances and
are of such a nature as to create a 'clear and present danger' that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and degree. 60
Thus the Court would not tolerate censorship of the press on any ground in time of peace, 61 though
such a thing may be necessary in time of war nor punish criticism of Judges unless that constitutes a
clear and present danger to a fair administration of justice. 62 On the same ground, a law which
punishes a person for 'breach of the peace' if he is guilty of any conduct which 'stirs' the public to
anger, invites disputes or brings about a condition of unrest' has been held to be too wide to be a valid
restriction of the right of free speech.63 On the other hand, the Court has upheld the validity of a statute
"forbidding any person to call another person by any offensive or derisive name, or to annoy or offend
that person while he is lawfully in any street or other public place." 64
"We should be eternally vigilant against attempts to check the expression of opinions that we loathe
and believe to be fraught with death, unless they so imminently threaten immediate interference with
the lawful and pressing purposes of the law that an immediate check is necessary to save the
country".65
Applying the doctrine of 'clear and present danger', the Court has condemned pre-censorship not only
of the press but also of any other medium of expression, such as television films, 66 loudspeakers or
amplifiers,67 though the State is free to award subsequent punishment for any offence; 68 and has also
refused to punish utterances which do not cause a serious substantive evil, e.g., an immediate threat
to the public peace as distinguished from mere 'inconvenience, annoyance or unrest', 69 or an imminent
threat to the administration of justice as distinguished from mere criticism of the judge, however unfair
or objectionable it may be.70
The doctrine of "clear and present danger" was evolved 71 by the Supreme Court, in view of the
'preferred place'72(see post) ascribed by the Court to the fundamental rights secured by the First
Amendment (i.e., freedoms of speech, press, religion and assembly), as amongst other rights secured
by the Bill of Rights. While in the case of a right secured by some other Amendment, the Court would
uphold any restriction by the Legislature which has a 'rational basis', 73
"freedoms of speech and of press, or assembly and of worship may not be infringed on such slender
grounds. They are susceptible of restriction only to 'prevent grave and immediate danger to interests
which the State may lawfully protect."74
Ups and downs of the doctrine
 64

But, in the practical application of the doctrine, there have been many ups and downs which deserve
separate mention.

6a)  In Whitney v. California ,75 it was asserted that the mere advocacy of violent
means to effect political and economic change involved such 'clear and present danger'
to the security of the State that the State might outlaw it, even though it was not
accompanied by any overt act ion. In Terminiello v. Chicago ,76 it was observed
"Invocation of Constitutional liberties as part of the strategy for over-throwing them
present a dilemma to a free people which may not be soluble by constitutional logic
alone... This court has gone for toward occupying that civil liberty means the removal of
all restraints from these crowds and that all local attempts to maintain order are
impairments of the liberty of the citizen. The choice is not between order and liberty. It is
between liberty with order and anarchy without either. There is danger that, if the court
does not temper its doctrinaire logic with a practical wisdom, it will convert the
Constitutional Bill of Rights into a suicide pact". This doctrine reached its high-water
mark in Dennis v. U . S.77

6b)  But in Yates v. U .S.,78 the Court explained away the extreme proposition
asserted in Dennis.79
In this case,80 the Court held that the Smith Act did not prohibit advocacy and teaching of forcible
overthrow of the Government as an abstract principle, divorced from any effort to instigate action to
that end.
The view taken in Yates81 has prevailed ever since and the extreme proposition asserted in Whitney v.
California ,82 has been overruled.83
The law, in the United States, at present, therefore, is--
The guarantee of freedom of expression does not permit the State to proscribe advocacy of the use of
force except where such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action. What the State can constitutionally punish is not mere abstract
teaching or the advocacy of the necessity for a resort to violence, but the preparation of a group for
violent action.84
Further, even when the State is justified in restraining unlawful advocacy, 'due process' requires that it
must provide procedures which are adequate to safeguard against arbitrary infringement of the
fundamental right.85 Thus, the burden would be upon the State to prove that the advocacy of the
person sought to be restrained is unlawful, and not for the latter to show that it is lawful, 86 even when
the impugned statute is a taxing law. 87
An off-shoot from the 'clear and present danger' doctrine is a distinction between 'speech' and 'action'
which has been drawn by the American Supreme Court in a number of cases, and sometimes upheld
as an independent test for justifying social control. It has been stated that freedom of expression
protects 'expression' and not 'action' or 'conduct'.88 The United States Supreme Court unanimously
upheld the conviction of a speaker, who in a dispute that a Policeman used abusing language. The
Court recognised the petitioners' words as "likely to provoke the average persons to retaliation." It was
further observed that certain utterances of which fighting words are a part "are not essential part of
any exposition of ideas on all of such slight social value as a step to truth that any benefit that may be
derived from them is normally outweighed by the social interest in order and morality". 89 Thus,

7a)  Using 'fighting words' against another at a public gathering, cannot be

considered as 'freedom of speech'.90

7b)  A theoretical advocacy of the abstract doctrine of the violent overthrow of

Government cannot be punished, but action towards that end can be suppressed.91
 65

5c)  The same protection as given to communication of ideas by speech cannot

be given to conduct as picketing, patrolling and the like on public highways or in court
house,92 or on private property or property belonging to the State, 93 as owner.
But where speech and act ion are combined,94 it is not easy to determine the point where pure speech
ends and 'action' commences. The 'clear and present danger' test is applied to find out that dividing
line:
The freedom of every man to have his views is lost only when they cease to be merely views and
"threaten, clearly and imminently, to ripen into conduct against which the public has a right to protect
itself".95
But under colour of regulating 'conduct' the State cannot suppress communication. 96
III. In some earlier cases, the American Supreme Court had sought to give special protection to the
freedom of thought and speech on the ground that this freedom constituted the indispensable
condition of other freedoms of an individual,97 so that the general presumption of constitutionality of
statutes lost its force98 when a law prima facie violated any of the First Amendment Rights, and that
these rights could be restricted only in cases of 'clear and present danger'.
But, though the doctrine of 'preferred position' is no longer heard so much, one of its vestiges still
remains, namely, that when a case of prior restraint upon the freedom of expression comes to Court, it
comes with a heavy presumption against its constitutional validity and it would be for Government to
rebut that presumption.99
26 Hood Phillips (1987), pp. 400 ff., 531 ff.; de Smith (1989) pp. 482 ff.; Robertson, Freedom and the Law, (1989), pp.
254 ff.; Hurwitt & Thornton (1989), pp. 30 ff.

27 SeeR v. Secretary of State for the Home Dept. exparte Simms, (1999) 2 AC 115 (supra).

28 See Pelling v. Bruce Williams, (2004) 3 All ER 875.

29 Tribe, American Constitutional Law, (1988), pp. 561 ff.; Schenck v. U.S., (1919) 249 US 47 (52); Roth v. U.S., (1957)
354 US 476 (484-5).

30 Roth v. U.S., (1957) 354 US 476 (484-5).

31 Gitlow v. New York, (1925) 268 US 652; Chaplinsky v. New Hampshire, (1942) 315 US 568 (572-72); Grayned v.
Rockford, (1972) 408 US 104 (108, 115).

32 Gompers v. Buck's Stove, (1911) 221 US 418.

33 Gitlow v. New York, (1925) 268 US 652; Chaplinsky v. New Hampshire, (1942) 315 US 568 (572-72); Grayned v.
Rockford, (1972) 408 US 104 (108, 115).

34 Staub v. City of Baxley, (1957) 355 US 313 (321); N.Y. Times v. U.S., (1971) 403 US 713.

35 Near v. Minnesota, (1930) 283 US 697; Burstyn v. Wilson, (1952) 343 US 495. See alsoOrganisation for Better
Austin v. Keefe, (1971) 420 US 115; Nebraska Press Assn. v. Stuart, (1976) 427 US 539; New York Times v. US,
(1971) 403 US 713.

36 Madsen v. Women Health Centre Inc., 512 US 753 (1994). See Massey, American Constituional Law, 2nd Edn.,
2005, Chapter IX, "Free Expression Ideas", p. 996.

37 (1930) 283 US 697 (supra).

38 See Craig R. Ducat, Constitutional Interpretation, 8th Edn., at p. 931.

39 Staub v. City of Baxley, (1957) 355 US 313 (321); N.Y. Times v. U.S., (1971) 403 US 713.

40 Thomas v. Collins, (1945) 323 US 516.

41 Cantweel v. Connecticut, (1940) 310 US 296.

42 Near v. Minnesota, (1930) 283 US 697.

 66

43 Cantweel v. Connecticut, (1940) 310 US 296; Largent v. Texas, (1943) 318 US 418 (422). See also Lovell v. Griffin,
303 US 444 (1938); City of Lakewood v. Plain Dealer Publishing Co., 486 US 750 (1988); Forsyth County v. The
Nationalist Movement, 505 US 123 (1992).

44 Niemotko v. Maryland, (1952) 340 US 268 (271-3); Cox v. Hampshire, 312 US 569 (1941).

45 Hague v. C .I.O.,(1939) 307 US 496 (516).

46 Schneider v. State, (1939) 308 US 147 (163).

47 Gompers v. Buck's Stove, (1911) 221 US 418.

48 Near v. Minnesota, (1930) 283 US 697.

49 Near v. Minnesota, (1930) 283 US 697.

50 Kingsley Brooks v. Brown, (1957) 354 US 436 (445).

51 Alexander v. United States, 509 US 544 (1993).

52 Southern Promotion Ltd. v. Conrad, 420 US 546 (1975).

53 Burstyn v. Wilson, (1952) 343 US 495.

54 Kunz v. N .Y.,(1951) 340 US 290.

55 Saia v. N .Y.,(1948) 334 US 558; Hynes v. Ovadell, (1976) 425 US 510; Schaumburg v. Citizens, (1980) 444 US
620.

56 Lovell v. Griffin, (1938) 303 US 444; Murdock v. Pennsylvania, (1943) 319 US 105.

57 Kovacs v. Cooper, (1949) 336 US 77; Bread v. Alexanida, (1951) 341 US 622; Lovell v. Griffin, (1938) 303 US 444
(supra); Murdock v. Pennsylvania, (1943) 319 US 105 (supra).

58 Tribe, American Constitutional Law (1988), pp. 561 ff.; Schenck v. U.S., (1919) 249 US 47 (52).

59 Bridges v. California, (1941) 314 US 252 (263).

60 Schenck v. U.S, (1918) 249 US 47 : 63 L.Ed.470.

61 Near v. Minnesota, (1930) 283 US 697.

62 Pennekamp v. Florida, (1946) 328 US 331.

63 Terminiello v. Chicago, (1949) 337 US 1.

64 Chaplinsky v. New Hampshire, (1942) 315 US 568.

65 Schenck v. U.S., (1919) 283 US 47 (52); Abrams v. U.S., (1919) 250 (US) 616.

66 Saia v. N .Y.,(1948) 334 US 558; Hynes v. Ovadell, (1976) 425 US 510; Schaumburg v. Citizens, (1980) 444 US
620.

67 Allen Laboratories v. Carroll, (1951) 340 US 929.

68 Kovacs v. Cooper, (1949) 336 US 77.

69 Kunz v. N.Y., (1951) 340 US 290.

70 Allen Laboratories v. Carroll, (1951) 340 US 929.

71 Bridges v. California, (1941) 314 US 252 (263); Schenck v. U.S., (1919) 283 US 47 (52); Abrams v. U.S., (1919) 250
(US) 616.

72 Thomas v. Collins, (1945) 323 US 516.

73 Craig v. Harney, (1947) 331 US 367 (376-7).

74 West Virginia Bd. v. Barnette, (1943) 319 US 624.

 67

75 Whitney v. California, (1927) 274 US 357; Dennis v. U.S., (1951) 341 US 494 (581).

76 Terminiello v. Chicago, (1948) 337 U.S. 1 : 93 L.Ed. 1131.

77 Whitney v. California, (1927) 274 US 357; Dennis v. U.S., (1951) 341 US 494 (581).

78 Yates v. U.S., (1957) 354 US 298 (318).

79 Hood Phillips (1987), pp. 400 ff., 531 ff.; de Smith (1989) pp. 482 ff.; Robertson, Freedom and the Law, (1989), pp.
254 ff.; Hurwitt & Thornton (1989), pp. 30 ff.

80 Tribe, American Constitutional Law, (1988), pp. 561 ff.; Schenck v. U.S., (1919) 249 US 47 (52).

81 Tribe, American Constitutional Law, (1988), pp. 561 ff.; Schenck v. U.S., (1919) 249 US 47 (52).

82 Whitney v. California, (1927) 274 US 357; Dennis v. U.S., (1951) 341 US 494 (581).

83 Brandenburg v. Ohio, (1969) 395 US 444 (449).

84 Noto v. U.S., (1961) 367 US 290 (297-8).

85 Hood Phillips (1987), pp. 400 ff., 531 ff.; de Smith (1989) pp. 482 ff.; Robertson, Freedom and the Law, (1989), pp.
254 ff.; Hurwitt & Thornton (1989), pp. 30 ff.

86 Hood Phillips (1987), pp. 400 ff., 531 ff.; de Smith (1989) pp. 482 ff.; Robertson, Freedom and the Law, (1989), pp.
254 ff.; Hurwitt & Thornton (1989), pp. 30 ff.

87 Hood Phillips (1987), pp. 400 ff., 531 ff.; de Smith (1989) pp. 482 ff.; Robertson, Freedom and the Law, (1989), pp.
254 ff.; Hurwitt & Thornton (1989), pp. 30 ff.

88 Mutual Film Corpn. v. Industrial Corpn.,(1915) 236 US 230.

89 Choplinsky v. New Hampshire, 315 US 568.

90 Roth v. U.S., (1957) 354 US 476 (484-5).

91 Tribe, American Constitutional Law, (1988), pp. 561 ff.; Schenck v. U.S., (1919) 249 US 47 (52).

92 Cox v. Louisiana, (1965) 379 US 536 (555).

93 Adderley v. Florida, (1966) 385 US 39 (47).

94 U.S. v. O 'Brien, (1968) 391 US 367.

95 American Communications Assocn. v. Douds, (1950) 339 US 382.

96 Stromberg v. California, (1931) 283 US 359; Street v. N .Y.,(1969) 394 US 576.

97 Palko v. Connecticut, (1937) 302 US 319.

98 U.S. v. Carolene Products, (1938) 304 US 144.

99 Brandenburg v. Ohio, (1969) 395 US 444 (449).

INDIA
In India, the entire law according to which restrictions may be imposed on the freedom of expression
is codified in Cls. (2)-(6) of Art. 19, as analysed in the succeeding captions.
In the present context, however, it should be mentioned that though in its early decisions the Court
expressed a general apathy to foreign precedents, in recent cases, the Court has followed American
decisions, relevant to the present topic, as follows:
The American test of 'clear and present danger', (described as 'imminent and present danger'), has
been applied in order to determine whether a particular publication could be punished as a contempt
 68

of Court, under Art. 19 (2).100"The 'clear and present danger test' for deciding whether a restriction on
free speech is constitutionally valid is to test whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about substantive
evils that the legislature has the right to prevent." These words as used by JUSTICE HOLMES in
Schenck v. US ,101 was fully endorsed by our Supreme Court in Government of AP v. P. Laxmi Devi ,102
[See, further, under 'contempt of court', post].
What Constitutes 'Restriction'

2.  As has been explained earlier, it is settled in the U.S.A.103 and India104 that in
determining whether the impugned law constitutes a 'restriction' upon a particular
fundamental right, the Court has to examine the direct effect or impact of the impugned
law upon that particular right. If the law has no direct relation to that particular right but
relates to a different subject, but only incidentally105 or remotely affects that right, the law
cannot be annulled as a restriction upon that fundamental right. 106 In Bennett Coleman's
case,107 the Central Government argued in support of newsprint policy that its subject
matter was rationing of imported commodity and not freedom of speech and the test to
adjudicate the validity of a regulatory provision should be its subject matter, its pith and
substance and its effect or result. Court rejected this approach and enunciated the test :
what is the direct or inevitable consequence or effect of the impugned State action on
the Fundamental Right of the petitioner. The true test is whether the effect of the
impugned act ion is to take away or abridge the Fundamental Right.
A legislation or government action may have direct effect on a fundamental right
although its subject matter may be different. The object of the law or executive act ion is
irrelevant when it infringes a fundamental right although its subject matter may be
different. Court said that no law or action would state in words that rights of freedom of
speech and expression are abridged or taken away. In that case, the court said that the
object of the restriction imposed on newspapers has nothing to do with the availability of
newspaper or foreign exchange because these were post-quota restrictions which fell
outside the ambit of Art. 19(2). It will be necessary to distinguish between the direct
purpose of the Act and its indirect or incidental effect. If the legislation seeks directly to
control the citizens right under Art. 19(1)(g) its validity has to be tested in the light of the
provisions contained in Art. 19(6) and if such a legislation, as for instances, a law
creating a State monopoly, indirectly or incidentally affects a citizen's right under any
other clause of Art. 19(1) as for instance Art. 19(1)(f) that will not introduce any infirmity
in the Act itself. If there is a legislation directly attempting to control a citizen's freedom of
speech or expression, or his right to assemble peaceably and without arms etc., the
question whether that legislation is saved by the relevant clause in Art. 19 will arise. If,
however, the legislation is directly in respect of any of these subjects, but as a result of
the operation of other legislation, for instance for punitive or preventive detection, his
right under any of the sub-clause is abridged; the question of the application of Art. 19
does not arise. The true approach is only to consider the directness of the legislations
and not what will be the result of the detention otherwise valid, on the mode of the
detenue's life. In dealing with the attack against the validity of a law creating State
monopoly on the ground that its provisions impinge upon the other fundamental rights
guaranteed by Art. 19(1), it would be necessary to decide what is the purpose of the Act
and its direct effect. If the direct effect of the Act is to impinge up-on any other right
guaranteed by Art. 19(1), its validity has to be tested in the light of the corresponding
clause in Art. 19; if the effect on the said right is indirect or remote, then its validity
cannot be successfully challenged.108 Even in cases where the statutory provision may
not be violative of Art. 19, but an action taken under such provision may be found to be
violative of the rights under Art. 19, Such act ion has to satisfy the test "under the direct
and inevitable consequences" criterion and also the intra vires of the statutory
provision.109 The reasonableness of restriction is to be judged today and in the
circumstances now existing and future possibilities are irrelevant. 110
 69

When the court applies the test of proximate and direct nexus with the expression, the
court has also to keep in mind that the restriction should be founded on the principle of
least invasiveness i.e., the restriction should be imposed in a manner and to the extent
which is unavoidable in a given situation. The court would also take into consideration
whether the anticipated event would or would not be intrinsically dangerous to public
interest.
Each citizen of India is entitled to enforce his fundamental right against the Government
subject to any reasonable restriction as may be imposed by law The Government can, in
larger public interest, take a decision to restrict the enforcement of freedom, however,
only for valid, proper and justifiable reason. Such decision cannot be arbitrary or
capricious. Another important facet of exercise of such power is that such restriction has
to be enforced with least invasion.
The fundamental right enshrined in the Constitution itself being made subject to
reasonable restriction, the laws so enacted to specify certain restriction on the right to
freedom of speech and expression have to be construed meaningfully and with the
constitutional object in mind. The restriction imposed in any form has to be reasonable
and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or
excessive. It must possess a direct and proximate nexus with the object sought to be
achieved. Whenever and wherever any restriction is imposed upon the right of freedom
of speech and expression, it must be in the framework of law as subscribed by Art. 19(2)
of the Constitution.111
2I.  It is, however not always easy to find what is the direct or indirect effects of
a law, in a given case. There are cases, in the U.S.A., which hold that though the Court
will not invalidate a statue which seeks to regulate a subject within the State's
competence because of its indirect or minor effect on a First Amendment freedom (e.g.,
of expression or assembly or association), if the effect on the fundamental right be
substantial, the State would not be allowed to impair it indirectly, under colour of dealing
with an evil within the State's competence.1 From this point of view, the degree of impact
on the fundamental right also becomes a relevant consideration. The width or over-
breadth of the restriction imposed for the purpose of a legitimate regulation also acquires
significance.2
2II.  In some American cases, it has been held that in the case of a First
Amendment freedom, an unconstitutional abridgement may be caused by a legislation
not merely by imposing a bar or prohibition, but also by inhibiting the exercise of a
fundamental right, by its 'deterrent effect', this has been described as the 'chilling' effect
of a law on the fundamental right, which the Court should declare unconstitutional or
prevent.3
Though a person may not be directly affected by a law, it may, by the overbreadth of its provisions,
restrain him from exercising his freedom of expression under the risk of being penalised for its
violation.4 In such a case, the overbroad law will be struck down, even at the instance of a person
against whom it has not yet been applied.
But no such 'chilling effect' has been held to exist merely because the Army was employed to gather
information or data as to street demonstrations, which could be passed on to civil authorities to be
used on some future action against the Petitioners to suppress their political act ivity, but there is no
allegation of any specific action, act ual or apprehended. 5
In India, the Supreme Court does not appear to consider 'overbreadth' as a test of unconstitutionality,
distinct from 'vagueness'6[see ante] except in the case of Romesh Thappar, in the passage quoted
see, ante.
Restriction and Regulation
U.S.A.
 70

In the U.S.A., it has been held that 'even protected speech is not permissible in all places and at all
times'.7

On this principle, the State may regulate the exercise of the freedom of speech of certain kinds on
government property,8 schools,9 residential area.10 Government can regulate the time, place and
manner of speech on public property to promote effective communication or accommodate other
legitimate uses of that property. But in imposing such restriction, it cannot discriminate on the basis of
the content or viewpoint of expression. Once a forum is opened upto assembly or speaking by some
groups, Government may not prohibit others from assembling or speaking on the basis of what they
intend to say.11 The court has struck down a permit system that distinguishes on the basis of content of
speech.12
The nature or degree of permissible regulation may also vary according to the media used 13 for the
expression, e.g., broadcasting.14
Thus, while a newspaper15 enjoys the freedom to advocate one's own positions without also
presenting the opposing viewpoints, such freedom is denied to broad-casting, because of its special
features as a media.16
Such regulation of the time; place and manner of expression, irrespective of the content of the
regulated expression, is upheld as a valid exercise of the police power, so long as it is designed to
serve a substantial governmental interest and does not unreasonably, limit alternative avenues of
communication.17 Wherever the title of streets and parks may rest, they have immemorially been held
in trust for the use of the public. The privilege of a citizen of United States to use the street and Parks
for communication of views on national question may be regulated "in the interest of all". But it must
not be, in the guise of regulation, be abridged or denied. 18
Public property has been classified into three categories--(1) the unlimited public forum, open to all
subjects and speakers to the fullest degree protected by First Amendment; (2) the limited public forum,
i.e., open to those subjects and speakers that the Government wishes to permit provided that the
limiting criteria are not viewpoint based or otherwise offensive to some other constitutional guarantee
(e.g., public forum limited only to those of a given race is a presumptive equal protection violation),
and (3) the non-public forum which is not a public forum at all and may be closed to all or some
speech so long as the closure is reasonable.
The unlimited public forum may be further sub-divided into "traditional" public forum--street, parks and
plazas, traditionally open to speech--and the "designated public forum" - public property that is not
traditionally open to speech, which has been so opened by deliberate act of the Government. The
designated--unlimited public forum is a very small set.
In ISKON v. Lee ,19 the question was whether airport terminal operated by public authority is a public
forum and whether a regulation prohibiting solicitation in the interior of an airport violates First
Amendment. It was held that a ban and distribution of literature in the airport terminals was invalid, but
a ban on solicitation was held to be reasonable. It was held face-to-face solicitation presents risks of
duress that are appropriate target of regulation. Such solicitation makes the visitors likely to stop and
formally complain to the airport authorities.
In Heffron v. ISKON ,20 the U.S. Supreme Court upheld the validity of a rule which prohibits the sale or
distribution of any merchandise including printed and written material, except from a booth rented from
the State. The area where the fair is conducted are rented out to all corners is a non-discriminatory
manner as a first come first serve basis and charges was based on the size and location of the booth.
More than a lakh people used to visit the fair every day. ISKON challenged the restriction on the
ground that is could not effectively distribute its literature and that its impairs the guarantee in the First
Amendment. While rejecting the challenge, it was held that there was a necessity to maintain the
orderly movement of the crowd, to control the flow of the crowd and demands of safety are more
pressing in the context of the fair. An uncontrolled right, will affect substantial state interest and further
 71

ISKON have alternative forum for distribution of literature or soliciting donation anywhere outside the
fair ground. It was held that the restriction was reasonable.
In Members of City Council of Los Angeles v. Tax Payers for Vincent ,21 the U.S. Supreme Court
upheld the Los Angeles ordinance prohibiting the posting of signs on public property applied to
individual to tied political campaign swings to public utility poles. It was held that the ordinance
diminishes the total quantity of appellant's communication in the city, but the state may curtail speech
in a contained neutral manner for which restriction furthers an importance of substantial governmental
interest and if the restriction on the free speech is greater than is essential to furtherance of that
interest. The contention that the public property covered by ordinance was a public forum was rejected
as they failed to demonstrate the existence of traditional right of access respecting such item of utility
poles for the purpose of communication comparable to that recognised for public streets and park.
The mere fact that the Government property can be used as a vehicle for compensation does not
mean that the Constitution requires such use to be permitted.
In Adderley v. Florida ,22 it was held that US Constitution does not forbid a state to control the use of its
own property or its own lawful discriminatory purpose and the demonstrators have no constitutional
rights to stay on the property in spite of objection raised by the custodian. As such freedom of speech
and expression are not violated. In that case, some student demonstrators were arrested for
demonstrating before jail premises - who were expressing their protest for arrest of their co-students.
When the demonstration did not withdraw from the premises, they were arrested, and convicted,
which was upheld by the Supreme Court. It was observed that though freedom of speech and
expression are guaranteed rights, that right does not include the right to block the vehicular passage
meant for jail authorities.23
Such regulation, however, becomes unconstitutional if--

8a)  It is based on the content of the regulated speech. Thus, Government may
not grant the use of a forum to people whose views it finds acceptable, but deny use to
those wishing to express less favoured or more controversial issues. 24 In Widmar v.
Vincent ,25 a public university had made its facilities available to students group except
who wish to engage in "religious worship or religious teaching". Although the University
had thereby created a limited public forum, its device for doing so was viewpoint based,
then subject to strict scrutiny, and ultimately voided. 26 The same principle applies where
the regulation discriminates between different media on the basis of the acceptability to
the Government of the message it conveys.27 In Lehman v. City of Shaker Heights ,28 the
court said that offer of advertising space was purely a commercial venture and like a
private advertiser, the transit authority was free to refuse advertising so long as it act ed
in a viewpoint neutral position. Closing on all political speech in a non-public forum was
permissible, but advertising space to some political speakers would not be valid.
In Greer v. Spock ,29 the court was confronted with the forum status of Fort Dix military reservation
which permitted civilian vehicular traffic and free civilian access to unrestricted porters of the base, but
"prohibited political speeches". Court sustained the prohibition holding that business of Fort Dix is to
train soldiers, not to provide a public forum.
In US v. American Library Assn .,30 the Supreme Court upheld portions of the federal Children's
Internet Protection Act which denies federal money for internet access to public libraries unless they
install software to block obscene or pornographic images and to prevent minors from accessing
material harmful to them. In the majority opinion, court rejected the argument that Internet access in
public libraries is a public forum. Such forum is neither a traditional nor designated public forum. First,
this resource--which did not exist until quite recently--has not immemorially been held in trust for the
use of the public and, time out of mind been used for purposes of assembly, communication of
thoughts between citizens and discussing public question. Nor does Internet access in a public library
satisfy the doctrine of "designated public forum". To create such a forum, the Government must make
an affirmative choice to open up its property for use as a public forum.
 72

In Grayned v. Rockford ,31 the Court sustained an ordinance that made it illegal during school session
to wilfully make any noise which disturbs or tends to disturb the peace or good order in such school
session as applied to demonstrators outside a school. The Court said: "It is the nature of a place, the
pattern of normal act ivities that dictate the kinds of regulation of time, place and manner that are
reasonable". The crucial question is, whether the manner of expression is basically incompatible with
the normal activity of a particular place at a particular time. Though the regulation must be narrowly
tailored to further the State's legitimate interest, this ordinance is narrowly tailored to further the city's
compelling interest in having an undisrupted school session conducive to the students' learning".
The reason is that under the First Amendment guarantee, Government has no power to restrict
expression because of its message, ideas, subject-matter or content. 32

8b)  If it is not narrowly tailored to serve a significant governmental interest and

does not leave open ample alternative channels for communication of the information. 33
India
In the same strain, though the word 'restriction' is used in Cls. (2)-(6) of Art. 19, it has been held by
our Supreme Court:34
"The power to impose restrictions on fundamental rights is essentially a power to 'regulate' the
exercise of these rights. In fact, 'regulation' and not extinction of that which is to be regulated is,
generally speaking, the extent to which permissible restrictions may go in order to satisfy the best of
reasonableness."35
Restriction and Prohibition
The words 'generally speaking' in the foregoing observation acknowledge that in certain cases of
inherently injurious expressions and act ivities, 'reasonable restriction' might justify a total 'prohibition'
thereof by the State.
U.S.A.
It is, however, to be mentioned in this context that in the U.S.A., the Supreme Court justified the total
prohibition in such extreme cases on the assumption that injurious expressions, such as obscene, 36
defamatory, utterances,37 or child pornography38 were not protected by the freedom of speech
guaranteed by the First Amendment.
The principal categories of unprotected speech are obscenity, child pornography, speech that incites
the immediate commission of crime and so-called fighting words. The principal categories of speech
that "receive limited constitutional protection are pornography, sexually charged "indecent speech",
defamation and speech involved in committing invasion of privacy and intentional infliction of
emotional distress, speech offensive to an audience so held captive to the speech that it amounts to
an intolerable invasion of privacy, speech that is so extremely inflammatory to a hostile audience that
all good faith efforts to control audience are futile and commercial speech. 39 As to (1) Incitement of
Immediate Crime.40 But see De Jonge v. Oregon ,41 where the court held that mere participation in an
organisation devoted to advocating criminal syndicalism could not made a crime. 42 In Branderburg v.
Ohio ,43it was observed that the constitutional guarantees of free speech and free press do not permit
a State to forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to indicting or producing imminent lawless action and is likely to incite or produce
such act ion. The more abstract teaching of moral propriety or even moral necessity for a resort to
force and violence is not the same as preparing a group for violent action and sterling it to such act
ion".
For obscenity and Pornography44.--Where in it was held that court always assumed that obscenity is
not protected by the freedom of speech and press. It was held that sex and obscenity are not
synonymous. Obscene material is a material, which deal with sex in a manner appealing to prurient
interest. (i.e. material having a tendency to excite lustful thought). The portrayal of sex, e.g., in art,
literature and scientific works, is not itself sufficient reason to deny material the constitutional
protection of freedom of speech and press. Sex, a great and mysterious motive force in human life,
 73

has undisputably been subject of absorbing interest and public concern. The fundamental freedom of
speech and press are indispensable to free society. It is, therefore, vital that the standards for judging
obscenity safeguard the protection of freedom of speech and press for material which does not treat
sex in a manner appealing to prurient interest".
In Miller v. California ,45 it was observed that the basic guidelines for the tries of fact must be (1)
whether "The average person, applying contemporary community standards" would find that the work
taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable State law; and (3)
whether the work as a whole, lacks serious literary, artistic, political or scientific value." 46 In Miller's
case, the Supreme Court also observed that the people in the different States vary in their tastes and
attitudes and this diversity is not to be strangled by the absolutism of imposed uniformity. But the
decision only invalidated "hard-core pornography" (obscenity) and private possession of such
materials in the home cannot be forbidden. This decision was explained in New York v. Ferber ,47
where Supreme Court unanimously held that the principle in Miller's casemay not apply to child
pornography. In that case, the Supreme Court upheld a State criminal law aimed at preventing the
exploitation of children, which prohibits the knowing production, direction or promotion of visual
material by depicting sexual conduct by children below the age of sixteen, regardless of whether the
material is obscene in legal sense or not. The Court said: "(1) a State's interest in safeguarding the
physical and psychological well being of a minor is "compelling"; (2) the distribution of photograph and
films depicting sexual activity by juveniles is intrinsically related to the "sexual abuse of children"
because "the materials produced are a permanent record of the children's participation and the harm
to the child is exacerbated by their circulation" and because the distribution network for the child
pornography must be closed if the production of material which requires the sexual exploitation of
children is to be effectively controlled; (3) the advertising and selling of child pornography provides an
economic motive and is thus an integral part of the production of such materials, an act ivity illegal
throughout the nation; (4) the value of permitting live performance and photographic reproduction of
children engaged in lewd sexual conduct is exceedingly modest, if not "de minimus"; and (5)
recognising and classifying child pornography as a category of material outside the protection of First
Amendment is not incompatible with our earlier decision".
In Osborne v. Ohio ,48 the Supreme Court ruled that a State could make private possession of child
pornography a crime. In Pari Adult Theatre I v. Slaton ,49 court said that States have a legitimate
interest in regulating exhibition of obscene material and in regulating exhibition of obscene materials in
places of public accommodation, including "so called adult theatre" from which minors are excluded.
Court said that commercial exploitation of depiction, description or exhibition of obscene conduct on
commercial premises open to adult public falls within a State's broad power to regulate commerce and
protect the public environment. The issue in this context goes beyond whether someone or even the
majority considers the conduct depicted as 'wrong' as sinful. The States have power to make a morally
neutral judgment that public exhibition of obscene material or commerce in such material has a
tendency to injure the community as a whole, to endanger the public safety or to jeopardize the
States' right to maintain a decent society.
For Fighting words.-It means words likely to cause an average addressee to fight. These "fighting
words" are face to face words plainly like to cause a breach of the peace by the addressee, words
whose speaking constitute a breach of the peace by the speaker". 50 In Chaplinsky defined the
unprotected category of fighting words as words "which by their very utterances inflict injury or tend to
incite an immediate breach of peace".51
Fighting words are not a means of exchanging views, rallying supporters or registering a protest; they
are directed against individuals to provoke violence or to inflict saying. Therefore, a ban as all fighting
words or on a subset of the fighting words category would restrict only the social use of hate speech,
without creating the danger of depriving viewpoints from the market place. 52
It was held that the protection afforded by First Amendment are not absolute. The First Amendment
permits a State to ban a "true threat". "True threats" encompass those statements where the speaker
means to communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals. The speaker need not act ually intend to carry out the
 74

threat. Rather, a prohibition on 'true threats' protects individuals from fear of violence and "from the
disruption that fear engenders" in addition to protecting people "from the possibility that the threatened
violence will occur". Intimidation in the constitutionally prescribable sense of the word is a type of true
threat, where a speaker directs a threat to a person or group of persons with intent to placing the
victim in fear of bodily harm or death.53 Where conviction was set aside on the ground that the
"speech" was not directed to the person of the hearer..." In Texas v. Johnson ,54 the Court struck down
the conviction for burning an American flag under circumstances he knew would seriously offend the
'onlookers'. In that case, Johnson had torched the flag in the midst of his participation in a strident
anti-American rally in Dallas. State argued that Johnson's conduct was unprotected fighting words.
Rejecting that argument, court said that no reasonable onlooker would have regarded Johnson's
political protest by burning the flag as a direct personal insult or an invitation to exchanging fisticuffs.
A State criminal statute prohibited speech (hate speech) "which portrays depravity, criminality,
unchastity or lack of virtue of a class of citizens of any race, colour, creed or religion or which exposes
the citizens of any race, colour creed or religion to contempt, derision or obloquy and which had a
strong tendency to violence and disorder". In that case, a person was convicted for distributing some
leaflet calling the city Government "to halt the further encroachment, harassment and the invasion of
white people, their property, neighbourhood and persons by Negroes". It also urged, "self-respecting
white people in Chicago to 'unite', if not persuasion, then because of the aggression, rapes, robberies,
knives, guns and marijuana of the Negroes in order to prevent the white race from becoming
mongrelized. The conviction was challenged on the ground that the statute law abridges the Freedom
of speech and Press as guaranteed by the First Amendment. Upholding the conviction, court said that
if an utterance directed at an individual may be the object of criminal sanction, we cannot deny to a
State power to punish the same utterances directed at a defined group unless we can say that this is a
wilful and purposeless restriction unrelated to the peace and well being of the State".
Even where it is not attended with violence, the State may restrict the freedom of which when it is
used as an integral part of "unlawful conduct" or the commission of act in violation of the law 55or when
speech incites the audience in such a manner that there is a likelihood of 'imminent' breach of police
which the Police cannot prevent without stopping the speaker. In other words, in the interest of public
order, the State may not only punish act ual disturbances, but also prevent threatened disorder. 56 In
Feiner v. New York ,57 the Court upheld the conviction for disorderly conduct of a Speaker who
disobeyed the police orders to end a speech that had produced some crowd hostility.
But in recent cases, the Court is finding it difficult to maintain that certain modes of expression totally
stand outside the protection of the First Amendment, e.g., libel,58 or commercial speech.59
India
Since the First Amendment to the American Constitution constitutes an absolute prohibition upon the
Legislature--not to abridge freedom of speech, Courts had to speculate what categories of expression
the framers of the Constitution subjected all forms of expression to reasonable restrictions under Cl.
(2). Whether in a given case a total prohibition would be reasonably necessary to protect the social
interest has been left to the Court to determine, having regard to all the attendant circumstances.
Forms of Restriction of the Freedom of Speech and Expression
I. Since the contents of this freedom are manifold, and comprise the freedom, inter alia, of
propagation, publication, circulation and communication of ideas as well as the freedom to hold and to
receive60 such ideas or opinions, any restriction upon these modes of expression or reception by
public authority, prima facie constitutes a restriction imposed upon the freedom guaranteed by the
present clause.
Freedom of speech is one of the most cherished right under the Constitution and any restriction as
this right is prima facie unconstitutional unless the same could be justified in terms of limitation under
Art. 19(2).61 In spite of there being a general presumption in favour of a legislation under challenge
alleging violation of right to freedom guaranteed by Art. 19(1) of the Constitution, on a prima facie case
of such a violation being made out, the onus shifts upon the State to show that the legislation comes
within the permissible restriction set out in Art. 19(2) to (6) and that the particular restriction is
 75

reasonable. It is for the State to place on record appropriate material justifying the restriction and its
reasonability. Reasonability of restriction which squarely falls within the power of judicial review of
courts, though legislative determination of what restriction to impose on a freedom is final and
conclusive as it is not open to judicial review. Such limitations, therefore, indicate two purposes, one
that the freedom is not absolute and is subject to regulatory measures and second, that there is also a
limitation on the power of the legislature to restrain these freedoms. The legislature has to exercise
these powers within the ambit of Art. 19(2) of the Constitution. 62
It was held therein that local breaches of public order are no grounds to restrict freedom of speech
and expression and anything which disturbs public tranquillity disturbs public order.
In Romesh Thapar v. State of Madras ,63 the Supreme Court held that local breaches of public order
were no grounds for restricting the freedom of speech and expression which led to the Constitution
(First Amendment) Act, 1951 and consequently in Ram Manohar Lohia v. State of Bihar ,64 the court
stated that an act ivity which affects law and order may not necessarily affect "public order" and the
activity which might be prejudicial to "public order" may not necessarily affect "Security of State".
Absence of public order is an aggravated form of disturbance of public peace which affects the
general current of public life. Any act which merely affects security of others may not constitute a
breach of public order.
The distinction between "public order" and "law and order" is a fine one but nevertheless clear. A
restriction imposed with "law and order" in mind would be least intruding into the guaranteed freedom,
while 'public order' may qualify for a greater degree of restriction since public order is a matter of even
greater social concern. Out of all expressions used in this regard, "Security of State" is the paramount
and the State can impose restriction upon the freedom, which may comparatively be more stringent
than those imposed in relation to maintenance of 'public order' and 'law and order'. However stringent
may the restrictions be, they must stand the test of "reasonability". The State would have to satisfy the
court that the imposition of such restriction is not only in the interest of Security of State, but it is also
within the framework of Art. 19(2) and 19(3) of the Constitution. 65
II. The restrictions imposed by public authority upon this freedom, as experience shows, may thus
take various forms,66 direct and Indirect, e.g.,--
(a) prior censorship67 or requirement of previous Permission;68
Learned author H.M. SEERVAI in his book Constitutional Law of India69 has said: "Two further
questions of a general nature arise in connection with the 'restriction' permitted under Art. 19(2) to (6).
First, how are the restrictions related to the right which they restrict? It has been said that it is the
rights which are fundamental and not limitation.70 Such observations, it is submitted, are misleading,
for, they overlook the fact that what is guaranteed is not an absolute right, but a right subject to
permissive restriction. That the rights conferred by Art. 19(1) are not absolute is obvious from the
nature of those rights." The fundamental right enshrined in the Constitution itself being made subject
to reasonable restriction, the laws so enacted to specify certain restrictions on the freedom of speech
and expression, have to be construed meaningfully and with the constitutional object in mind".
The freedom of speech under Art. 19(1)(a) means the right to express one's opinion by words of
mouth, writing, printing, picture as in any other manner. It includes freedom to communicate the ideas,
which could be made through any medium, newspaper, magazine or movie. But all these are subject
to reasonable restrictions as set out under Art. 19(2). These restrictions are intended to strike a
balance between the liberty guaranteed and the social interest specified under Art. 19(2). This is the
difference between the First Amendment to the US Constitution and Art. 19(1) of our Constitution.
Courts' commitment to freedom of expression demands that it cannot be suppressed unless the
situation created by allowing the freedom are pressing and community interest are endangered. The
anticipated danger should not be remote, conjectural or far-fetched. It should have a direct and
proximate nexus with the expression. The expression of thought should be intrinsically dangerous to
the public interest. It should be inseparably locked up with the action contemplated like the equivalent
of a "Spark in a powder tag."
 76

The movie and other kinds of expressions have a vast difference. Movie motivates thoughts and act
ion and assures a high degree of attention and retention. It is a very powerful means of
communication and has a unique capacity to disturb and arouse feelings. It has as much potential for
evil as well as it has for good. It cannot be allowed to function in a free market place just as does the
newspapers and magazines. Censorship by prior restraint is therefore, not only desirable, but also
necessary. The First Amendment to the U.S. Constitution does not permit any prior restraint, since the
guarantee of free speech is in unqualified terms.
If the film is unobjectionable and cannot constitutionally be restricted under Art. 19(2), the freedom of
expression cannot be suppressed on account of threat of demonstration and processions or threats of
violence. That would amount to negation of rule of law and a surrender to blackmail and intimidation. It
is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the
State. The State cannot place its inability to handle the hostile audience problem. 71 In S. Rangarajan v.
P. Jagjivan Ram ,72 the Supreme Court further said: "In democracy, it is not necessary that everyone
should sing the same song. Freedom of expression is the rule and it is generally taken for granted.
Everyone has a fundamental right to form his own opinion on any issue of general concerns. He can
form and inform by any legitimate means. The democracy is a Government by the people via open
discussion."
In a later case, a similar view was expressed. Censor Board certified that the film is eligible for public
exhibition, which was set aside by Madras High Court stating that the film relates to sensitive issue of
reservation and law and order problem will arise. The Supreme Court, in appeal, held that dissent is
part of discussion which in turn is freedom of speech and expression. Public discussion and debates
on sensitive social issues like reservation are necessary in a vibrant democracy like India to promote
awareness in public, which in turn is necessary for effective working of the democracy. Discussion
includes dissent also which in turn helps society to grow. 73
State cannot prevent open discussion and open expression, however, hateful to its policies. Protection
of constitutional guarantee does not extend only to fictional of artistic themes. It was held that that
artists, film makers and play-writers are affirmatively entitled to allude to incidents which have taken
place and to present a version of those incidents which according to them represents a balanced
portrayal of social reality. Critical appraisal is the corner-stone of democracy and power of the film as a
medium of expression lies in its ability to contribute to the appraisal. 74
In K.A. Abbas v. Union of India ,75 it was held that censorship of films including pre-censorship was
constitutionally valid under Art. 19(2). It was observed that pre-censorship was but an aspect of
censorship and bore the same relationship in quality and material as censorship after the motion
picture has had a run. However, censorship should not be exercised as to cause unreasonable
restrictions as the freedom of expression.
A citizen's right to exhibit films on television is similar to the right of a citizen to publish his views
through any other media such as newspapers, magazines, advertisement, hoarding, etc. In Odyssey
Communication Pvt. Ltd. v. Lok Vidyayan Sangathana ,76 the Bombay High Court passed an interim
order prohibiting the telecast of a documentary "Honi Anhoni" which was challenged before Supreme
Court. It was held that the right of a citizen to exhibit films on Doordarshan subject to the terms and
conditions imposed by it is a part of fundamental right of freedom of expression guaranteed under Art.
19(2). The court held that the episode in question did not violate any law or any right of the petitioner
at whose instance, High Court passed the interim order nor was likely to affect prejudicially the well
being of people. In that case, the court observed that freedom of expression as a "preferred right". 77
A citizen who is interviewed over television by invitation of the television authorities is entitled to
express his or her views freely. Censorship or deliberate distortion of these views would violate of Art.
19. Any restriction on this right must be within the ambit of Art. 19(2). On a topic "Laws relating to
women" to be telecast in TV programme, at the invitation of TV authorities, the petitioner gave an
interview, but when the same was broadcast, the same was found to be censured and the views
expressed were not fully broadcast. Court held that the act of Television authorities amounts to
censorship and not editing. The court emphasised that such act ion of censorship of the interview
amounts to violation of Art. 19(1)(a) and without legislative authority.
 77

Broadcasting and telecasting also come within the ambit of freedom of speech and expression.
Though the airwaves or frequencies are public property, their use has to be controlled and regulated
by public authority and since electronic media involves the use of airwaves, this factor creates an in-
built restriction on its use as in the case of any other property. The right to freedom of speech and
expression includes right to educate, to inform and to entertain also and the right to be educated,
informed and entertained. The right to information and the right to acquire knowledge about the game
of cricket through electronic media is a right guaranteed under Art. 19(1)(a) and no monopoly of
electronic media is permissible as Art. 19(2) does not permit State monopoly and State monopoly is
permissible only in case of freedom of trade or business. 78
But in regard to imposing pre-censorship on a journal is a restriction on the liberty of the press. The
liberty of the press consists in laying no previous restraint upon publications and not in freedom from
censure for criminal matter when published. Every freeman has an undoubted right to lay what
sentiments he pleases before the public; to forbid this, is to the freedom of the press. 79
In the US, any interference with the media's freedom to access, report and comment upon ongoing
trials is prima facie unlawful. Prior restraints are completely banned. In case an irresponsible piece of
journalism results in prejudice to the proceedings, courts evolve neutralising devices like change of
venue, ordering re-trial, reversal of conviction on appeal, etc.80 In Sahara India Real Estates Corpn.
Ltd. v. SEBI ,81 the Supreme Court considered the width of postponement orders in matters which are
sub judice and how far such orders constitute a restriction under Art. 19(1) (a) and whether such
restriction is saved under Art. 19(2). The Supreme Court said that collision between freedom of
expression (including free Press) and the right to fair trial as applied in US will not apply to the Indian
Constitution since Art. 19(1)(a) does not confer an absolute right. In certain cases, even the accused
seeks publicity (not in the pejorative sense) as openness and transparency is the basis of a fair trial in
which all the shareholders who are a party to a litigation including Judges are under scrutiny and at
the same time people get to know what is going on inside the court-rooms. When rights of equal
weight clash, the courts have to evolve balancing techniques or measures based on recalibration
under which both rights are given equal space in the constitutional scheme and this is what the
"postponement order" does, subject to certain parameters. The constitutional protection in Art. 21
which protects the right of a person for a fair trial, is a valid restriction operating on the right to free
speech under Art. 19(1)(a). The Court said that if postponement orders curtail freedom of expression
of third parties, such orders have to be passed only in cases in which there is real and substantial risk
of prejudice to fairness of the trial or to the proper administration of justice. However, such orders of
postponement should be ordered for a limited duration and without disturbing the content of
publication. They should be passed only when necessary to prevent real and substantial risk to the
fairness of the trial if reasonable alternative methods or measures such as change of venue or
postponement of trial will not prevent the said risk and when the salutary effects of such orders
outweigh the deleterious effect to the free expression of those affected by prior restraint. The order of
postponement will only be appropriate in cases where the balancing test otherwise favours non-
publication for a limited period. Such orders of postponement are only to balance conflicting public
interests or rights in Part III of the Constitution. They also satisfy the requirement of justification under
Art s. 14 and 21 of the Constitution. Postponement orders safeguard fairness of the connected trial.
The principle underlying postponement orders is that to prevent possible contempt. Court also said
that excessive prejudicial publicity leading to usurpation of functions of the court not only interferes
with the administration of justice, which is sought to be protected under Art. 19(2), it also prejudices or
interferes with a particular legal proceeding. In such case, courts are duty bound under inherent
jurisdiction to protect the presumption of innocence which is now recognised as a human right under
Art. 21, subject to the applicant proving displacement of such a presumption, in appropriate
proceedings. Such postponement orders must be integrally connected to the outcome of proceedings
including guilt or innocence of the accused. Court held that postponement orders fall under Art. 19(2)
and they satisfy the requirement of reasonableness.82
In Reliance Petrochemicals Ltd. v. Indian Express ,83 the Supreme Court said: "We must see whether
there is a present and imminent danger for the continuance of injunction. It is necessary to reiterate
that the continuance of injunction would amount to interference with the freedom of Press in the form
of preventive injunction and it must therefore be based on reasonable ground for the sole purpose of
 78

keeping administration of justice unimpaired. We must remember that the people at large have a right
to know in order to be able to take part in a participatory development in the industrial life and
democracy. Right to know is a basic right which citizens of a free country aspire in the broaden
horizon of the right to live in this age on our land under Art. 21 of the Constitution. That right has
reached new dimension and urgency. That right puts greater responsibility upon those who take upon
the responsibility to inform".

9b)  ban on importation of printed or published matter; 84

6c)  prohibition of printing or publishing matters of specified nature; 85
4d)  demanding security from the Press;86 In Shailabala's case it was held that
speeches and expressions on the part of an individual which incite to or encourage the
commissions of violent crimes, such as murder, cannot but be matters which would
undermine the security of State and Clause (a) of s. 4(1) of Press Emergency Provisions
Powers Act 1931 is valid.
1e)  reducing circulation87 or the number of pages of a publication;88
1f)  punishing a particular conduct while ventilating one's ideas. 89
1g)  Freedom of speech and expression may be abridged also by taxation,
--either by imposing90 a discriminatory tax (see 'Tax on Newspapers', post) or by denying exemption91
from a tax, merely on the ground that a person is engaging in particular forms of expression, or
advocates particular belief. The effect is the same as penalising a person for his speech, unconnected
with any unlawful conduct.92 Thus, a person cannot be denied exemption from a tax (to which he is
otherwise entitled under the statute) solely on the ground that he refused to subscribe an oath that the
does not advocate the overthrow of the Government by unlawful means. 93
In Minneapolis Tribune Co. v. Minnesota Commission of Revenue ,94 U.S. Supreme Court held the
imposition Sales Tax as the sale of newspapers, books and periodicals at the rate of 6%. Whereas in
the case of sale of other goods at the rate of 4% was ultra vires the freedom of Press guaranteed
under the First Amendment. In 1974, amended the law exempting $ 1,00,000 worth of ink and papers
consumed by any publication in any calendar year. After the amendment, i.e. exemption, only 11
publishers, producing 14 out of 308 newspapers incurred the tax liability. The appellant who was one
of the persons who was one of the publishers out of 11, had to pay 2/3 of the total revenue raised by
tax. It was held that there is no proper justification for the special treatment of the newspaper and ink
and paper tax violates the First Amendment, not only because it singles out the press, but also it
targets a small group of newspapers.95
It has further been held 'that when the constitutional right to speak is to be deterred by a State's
general taxing programme, 'due process' demands that the right of speech shall remain unimpaired
until the State establishes the unlawful act or conduct which justifies the inhibition of the fundamental
right.96 Even where it is competent for a State to deny exemption from a tax on the ground that the
speech or expression engaged in by a person is unlawful, it is for the State to discharge the onus of
showing that the person's conduct falls within the inhibition; the burden is not on the taxpayer to prove
that he is not a member of the class which has been validly inhibited by the Legislature. 97
In Simon & Schuster Inc. v. New York State Crime Victim Board ,98 the Court voided a New York
statute that confiscated any income earned by a person "accused or convicted of a crime" from books
or other publication concerning the crime and provided that such proceeds be held in trust to satisfy
civil judgment obtained against the accused or convicted criminal by victim. The Court said: "...a
statute is presumptively inconsistent with First Amendment if it imposes a financial burden on
speakers because of the content of their speech. While New York interest in facilitating compensation
to crime victims was a compelling interest, New York had little if any interest in limiting such
compensation to the proceeds of the wrongdoer's speech about crime.
Even though the Press enjoys different treatment while concerning freedom of speech and
expression, it enjoys no immunity from general application of laws. 99
(i) Restrictions on the supply of newsprint,100 discriminatory denial of advertisements and other
Government privileges,
 79

U.S.A.
III. The foregoing list of the forms of encroachment upon the freedom of expression is, however, not
complete.101 Even any indirect device which substantially abridges or interferes with the freedom of
expression would be unconstitutional. As the American Supreme Court 102 has observed--
"... free speech is not a right that is given only to be so circumscribed that it .. in principle but not in
fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a
benevolent government has provided as a safe haven for crackpots.... we do not confine the
permissible exercise of the First Amendment rights to a telephone booth or the four corners of a
pamphlet, or to supervised and ordained discussion in a school classroom". 103 In that case which
involved the First Amendment Right of students, the Court insisted that the decisive consideration was
whether the use of a public place or Government property as a public forum significantly interfered
with the purpose to which the property was dedicated. The Court said: "In our system, States operated
schools may not be enclaves of totalitarianism, school officials do not possess absolute authority over
their students. Students in school as well as out of school are "persons" under the Constitution. They
are possessed of fundamental rights which the State must respect, just as they themselves must
respect their obligation to State. In our system, students are not to be regarded as closed-circuit
recipients of only that which the State chooses to communicate. They may not be confined to the
expression of those sentiments that are officially approved. In the absence of a specific showing of
constitutionally valid reasons, to regulate their speech, students are entitled to freedom of expression
of their views. Earlier, the court observed that in order for the State in the person of school officials to
justify prohibition of a particular expression of opinion, it must be able to show that its action was
caused by something more than a desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint."
It was held therein "In our system, undifferentiated fear or apprehension of disturbance is not enough
to overcome the right to freedom of expression. Any departure from absolute regimentation may cause
trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the
lunch room, or on the campus, that deviates from the views of another person may start an argument
or cause disturbance. But our Constitution says we must take the risk... and our history says that it is
this sort of hazardous freedom--this kind of openness--that is the basis of our national strength and of
the independence and vigour of Americans who grow up and live in this relatively permissive, often
disputations society".
India
IV. The Indian law as to what constitutes a 'restriction' is similar. Whatever be the form in which the
restriction is imposed, it will have to be tested by the same conditions under Cl. (2) [or any other
limitation clause of Art. 19, which may be applicable]. These are--

9a)  It must be imposed by a law; The expression "law" means law made by
Legislature in accordance with its ordinary legislative procedure. The expression "law",
therefore, does not include within itself ordinance, order, bye-law, rule, regulation,
notification, customs or usage having the force of law nor an amendment to the
Constitution in accordance with the procedure prescribed in Art. 368. 1 But the restriction
can be placed by subordinate legislation.2 In Bijoe Emmanuel v. State of Kerala ,3 it was
observed a mere executive or administrative instruction is not 'law', for the purpose Arts.
19(2) to (6). In that case certain circulars intended to be a code of conduct for teachers
and students, which provide for moral and spiritual values (which include the conduct or
behaviour in regard to patriotism, national anthem and in its participation etc.) was held
"not law". Similarly "Flag Code" which contains executive instructions of the Central
Government, is not 'Law" for the purpose of Arts. 19(2) to (6), though may have force of
law for some other purpose; as for example, these instructions which are issued as a
supplement to the legislative power in terms of Clause (1) of Art. 77 of the Constitution. 4
It is clear that restrictions can be imposed only by or under the authority of a law; no
restriction can be imposed by executive act ion alone without there being a law to back it
up. Authority declaring prohibitory orders under s. 144 CrPC is exercising power
 80

authorised by law and the said power is conferred in the interest of public tranquility and
is therefore constitutional.5
10b)  Such law must be valid;
7c)  The restriction imposed by the law must be 'reasonable';
5d)  It must be reasonable both from procedural and substantive standpoints.
2e)  It must relate to any of the grounds of restriction specified in Cl. (2) of Art. 19
and such relationship must be proximate and not remote. 6
2f)  The 'restriction' should not be 'disproportionate' to the situation, i.e. the
legislature and administrative authority must maintain a proper balance between adverse
effects which the legislations or the administrative order may have on the rights, liberties
or interest of persons keeping in mind the purpose which they intended to serve.
Whether the restriction infringes the rights "excessively" or not is for the Court to decide. 7
A legislation arbitrarily or excessively invading the right cannot be characterised as
reasonable. A restriction should strike a proper balance between the freedom
guaranteed by any of the clauses and social control, so that the freedom is limited only
to the extent necessary to protect the society of which a citizen is a part. This introduces
the principle of proportionality.8 Where there is already a legislation putting restriction on
performance of dance at certain categories of hotels and eating houses which are
reasonably sufficient to protect women from exploitation, a law which completely
prohibits their performance and is far in excess of what is required under law, such law is
violative of freedom of speech and expression and also freedom of trade and
business.9Imposition of reasonable restriction is permissible within the parameters of Art.
19(2) to (6) so as to avoid anarchy and chaos. The purpose is to strike a proper balance
for meaning enjoyment of rights by society as a whole. State ought to follow a least
invasive approach and must act openly and fairly, yet restriction can be suitably tailored
depending upon gravity of situation to be tackled. Law and order calls for least
restriction, while security of State may warrant maximum restriction. 10
The only grounds under which the freedom of expression guaranteed by Cl. (1)(a) of Art. 19 can be
abridged are those mentioned in Cl. (2) thereof. If a law directly affecting is challenged, it is no answer
that the restrictions imposed by it are justifiable under Cls. (3) to (6). 11
But there would be no question of infringement of the guarantee in Art. 19(1)(a) where the impugned
legislation is not directed against or directly in respect of the freedom of expression, but relates to
some other subject, and the impact upon the fundamental right is only an indirect or remote
consequence of the operation of the law.12
It follows that though freedom of business may be abridged, under Cl. (6), in the interests of the
general public, this object cannot be achieved by curtailing any other freedom specified, in Cl. (1),
such as freedom of expression, which is not subject to Cl. (6). 13
The freedom of expression is an individual right guaranteed by Art. 19(1)(a), which cannot be
restricted on the ground of conferring benefits upon the public or any section thereof,--apart from the
grounds specified in Cl. (2).
The Press stands in a dual capacity: it is a medium of expression as well as a mode of business.
While, its business act ivities may be curtailed in the interests of the general public under Cl. (6) of Art.
19, its freedom of expression cannot be restricted on any ground outside Cl. (2) of Art. 19. 14It was held
therein that a citizen is entitled to enjoy each and every one of the freedoms together and Art. 19(1)
does not prefer one freedom to another. The State cannot make a law which directly restricts one
freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore,
for holding that the State cannot directly restrict one freedom by placing an otherwise permissible
restriction on another freedom. Therefore, referring the Press as a business and justifying the
impugned restriction under Art. 19(6) as a proper restriction on the right to carry on business of
publishing a newspaper would be wholly irrelevant for considering whether the impugned Act infringes
or does not infringe the freedom guaranteed under Art. 19(1)(a). The Court said that as the purpose of
the law in question was to effect directly the right of circulation of newspapers "which would
 81

necessarily undermine their influence on public opinion, it cannot but be regarded as a dangerous
weapon which is capable of being used against democracy itself. Court said that freedom of speech
and expression of opinion is of paramount importance under a democratic constitution which
envisages changes in the composition of legislatures and Government and must be preserved". It may
well be within the power of the State to place, in the interest of the general public, restrictions upon the
right of a citizen to carry on business but it is not open to the State to achieve this object by directly
and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which
is not susceptible of abridgement on the same grounds as are set out in Cl. (6) of Art. 19. Therefore,
the right of freedom of speech cannot be taken away with the object of placing restrictions on the
business act ivities of a citizen.15 Few restriction was imposed on the number of pages which a
newsprint can have on the ground of a newsprint policy which was in shortage. The dominant direction
of the policy was to curtail the growth of big newspapers which could not increase their pages, page
area or periodicity by reducing the circulation to meet their requirements even within their admissible
quota of newsprint. The newsprint policy was struck down by court in Bennett Coleman v. UOI,16 the
Court said: "The effect and consequences of impugned policy upon newspaper is directly controlling
the growth and circulation of newspapers. The direct effect is the restriction upon circulation of
newspapers. The direct effect is upon the growth of newspaper through pages. The direct effect is that
newspapers are deprived of their area of advertisements. The direct effect is that they are exposed to
financial loss. The direct effect is that freedom of speech and expression is infringed".
An adjustment between the two kinds of State power in the case of a newspaper has been sought for
by the Supreme Court in a later case17 thus:
"While there can be no tax on the right to exercise freedom of expression, tax is leviable on
newspaper industry. But when such tax transgresses into the field of freedom of expression and stifles
that freedom, it becomes unconstitutional. As long as it is within reasonable limits and does not
impede freedom of expression it will not be contravening the limitations of Art. 19(2)".18
"In the case of ordinary taxing statutes, the laws may be questioned only if they are openly
confiscatory or a colourable device to confiscate. On the other hand, in the case of a tax on a
newsprint, it may be sufficient to show a distinct and noticeable burdensomeness, clearly and directly
attributable to the tax" (para. 67).19
It was held in that case that levy of custom duty on newsprint used in the production of newspaper is a
restriction on the activity of publishing a newspaper and the levy of customs duties had a direct effect
on that act ivity. It was further observed that there is no analogy between Art. 289(1) and Arts. 19(1)(a)
and (2) of the Constitution. The levy cannot be justified merely on the ground that it was not on any
property of the publishers of the newspapers.
A legal provision requiring printing of the name of the printer, place of printing and name of publisher
and place of publication on every paper or book does not infringe Art. 19(1)(a), for, the intention of the
provision is to inform the public as to who the printer or publisher is. 20
Grounds of Restriction
Clause (2), as amended by the Constitution (First Amendment) Act, 1951, and the Constitution
(Sixteenth Amendment) Act, 1963, enables the Legislature to impose restrictions upon the freedom of
speech and expression, on the following grounds--

8i)  Sovereignty and integrity of India

8ii)  Security of the State
5iii)  Friendly relations with foreign States
4iv)  Public order
3v)  Decency or morality
3vi)  Contempt of Court
2vii)  Defamation
2viii)  Incitement to an offence
 82

Grounds Exhaustive
As stated earlier (see ante), it is settled that the grounds of restriction specified in the limitation
Clauses (2)-(6) of Art. 19 are exhaustive so that any restriction imposed upon the freedom of speech
and expression shall be invalid unless it is related to any of the grounds mentioned in Cl. (2); 21 or
covered by any of the immunity provisions in Art s. 31A to C. 22
But, then, the question remains whether freedom of speech and expression may be validly restricted
on a ground specified in Cls. (3) to (6), i.e., on a ground which would be legitimate for restricting any of
the other fundamental rights enumerated in Cl. (1) of Art. 19. A definitely negative answer was offered
by the Supreme Court, speaking through MUDHOLKAR, J., in the case of Sakal Papers:23

"It may well be within the power of the State to place, in the interest of the general public, restrictions upon the
right of a citizen to carry on business but it is not open to the State to achieve this object by directly and
immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not
susceptible of abridgement on the same Grounds as are set out in Cl. (6) of Art. 19. Therefore, the right of
freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a
citizen. Freedom of speech can be restricted only in the interests of the security of the State, friendly relation
with foreign States, public order, decency or morality or in relation to contempt of court defamation or
incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the
general public. If a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are
justifiable under Cls. (3) to (6). For, the scheme of Art. 19 is to enumerate different freedoms separately and
then to specify the extent of restrictions to which they may be subjected and the objects for securing which this
could be done. A citizen is entitled to enjoy each and every one of the freedoms together and Cl. (1) does not
prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State
cannot make a law which directly restricts one freedom even for securing the better enjoyment of another
freedom. All the greater reason, therefore, for holding that the State cannot directly restrict one freedom by
placing an otherwise permissible restriction on another freedom".24

But, in this context, the apparently discordant note struck in another decision should have to be
explained. In All India Bank Employees Assocn. v. National Industrial Tribunal ,25 the Supreme Court
held that when an association carried on business, it could not be contended that the only restrictions
which the Legislature was entitled to impose on it were on the grounds specified in Cl. (4) and that
even, though it carried on a business it would be immune from restrictions permissible under Cl. (6) of
Art. 19, simply because it was in association of individuals.
"When sub-cl. (c) of Cl. (1) of Art. 19 guarantees the right to form associations, is a guarantee also
implied that the fulfilment of every subject of an association so formed is also a protected right, with
the result that there is a constitutional guarantee that every association shall effectively achieve the
purpose for which it was formed without interference by law exception grounds relevant to the
preservation of public order or morality set out in Cl. (4) of Art. 19?... If an association were formed, let
us say for carrying on a lawful business such as a joint stock company or a partnership, does the
guarantee by sub-cl. (c) of the freedom to form. The association, carry with it a further guaranteed
right to the company or the partnership to pursue its trade and achieve its profit-making object and
that the only limitations which the law could impose on the act ivity of the association or in the way of
regulating its business activity would be those based on public order and morality under Cl. (4) of Art.
19? We are clearly of the opinion that this has to be answered in the negative."26
"Every act ivity which facilitates the exercise of a fundamental right is not necessarily comprehended
in that fundamental right nor it can be regarded as such merely because it may not be possible
otherwise to effective exercise that fundamental right. What is necessary to be seen is, and what is
the test which must be applied, whether the right claimed by the petitioner is an integral part of a
named fundamental right or partakes of the same basic nature and character as the named
fundamental right, so that the exercise of such right is in reality and substance nothing but an instance
of the exercise of the named fundamental right." 27 It was held in that case, that the right to go abroad
cannot in all circumstances be regarded as included in freedom of speech and expression.
The rationale of the above observation was that the concomitant rights of an association after it is
formed, cannot be different from the rights which can be claimed by the individual citizens of which the
association is composed. The reason is that Art. 19 grants rights to the citizens as such, and
 83

associations can lay claim to the fundamental rights guaranteed by that Article solely on the basis of
their being an aggregate of citizens composing the body.
It has been held that (1) a right to form associations or unions does not include within its kin as a
fundamental right a right to form associations or unions "for achieving a particular object or running a
particular institution", the same being a concomitant or concomitant to a concomitant fundamental
right, but not the fundamental right itself. The associations or unions of citizens cannot further claim a
fundamental right that they must also be able to achieve the purpose for which they have come into
existence, so that any interference with such achievement by law shall be unconstitutional, unless the
same could be justified under Art. 19(4) as being a restriction imposed in the interest of public order or
morality; (2) a right to form association guaranteed under Art. 19(1)(c) does not imply the fulfillment of
every object of the association as it would be contradictory to rights guaranteed by Part III and
particularly by the scheme of the guarantees conferred by Clauses (a) to (g) of Clause (1) of Art. 19;
(3) while right to form an association is to be tested by reference to Art. 19(1)(c) and the validity of
restriction thereon by reference to Art. 19(4), once the individual citizens have formed an association
and carry on some activity, the validity of the legislation restricting act ivities of the association will be
judged by reference to Art. 19(1)(g) read with Art. 19(6). A restriction on the activities of the association
is not a restriction on the act ivities of the individual citizen forming membership of the association and
(4) a perusal of Art. 19 read with certain other Arts. like 26, 29 and 30 shows that while Art. 19 grants
rights to the citizen as such, the association can lay claim to the fundamental rights guaranteed by Art.
19. 'Solely' as the basis of their being an aggregation of citizens, i.e. rights of the citizens composing
the body. As the stream can rise no higher than the source, associations of citizens cannot lay claim to
rights not open to citizen or claim freedom from restriction to which the citizens composing it are
subject.28 It was held that right to form an association cannot be coupled with the fundamental right to
carry on trade or business. As soon as citizens form a company, the right guaranteed to them by Art.
19(1)(c) has been exercised and no restraint has been placed on that right and no infringement of that
right is made. Once a company or corporation is formed, the business which is carried on by the said
company or corporation is the business of the company or corporation, and not the business of the
citizens who get the company or corporation formed or incorporated and the rights of the incorporated
body must be judged on that footing 'alone' and cannot be adjudged on the assumption that they are
the rights attributable to the business of individual citizens.
In Dharam Dutt's case29 the law is summarized thus: "The scheme of Art. 19 shows that a group of
rights are listed as Clauses (a) to (g) and are recognised as fundamental rights conferred on citizens.
All the rights do not stand on a common pedestal, but have varying dimensions and underlying
philosophies. This is clear from the drafting of Clauses (2) to (6) of Art. 19. The framers of the
Constitution could have made a common draft of restriction which are permissible to be imposed on
the operation of fundamental rights listed in Clause (1), but that has not been done. The common
thread that runs throughout Clauses (2) to (6) is that the operation of any existing law or the
enactment by the State of any law, which imposes reasonable restriction to achieve certain objects is
saved; however, the quality and consent of such law would be different by reference to each of sub-
clause (a) to (g) of Clause (1) of Art. 19".30
Accepting the above decision, the Supreme Court has held that it becomes evident that the right of
citizen to form an association is different from the business by that association. Therefore, the right of
individual to form a society has to be understood in a completely different context. Once a co-
operation is formed and registered, for the reason that co-operative society itself is a creature of the
statute, the right of the society and of its members stands abridged by the provisions of the Act. The
act ivities of the society are controlled by the statute. Therefore, there cannot be any objection to
statutory interference with their composition or functioning merely on the ground of contravention of
individual's freedom of association by statutory functionaries. 31 In A.P. Dairy Development Corpn.
Federation v. B. Narasimha Reddy ,32 the Supreme Court further held that by statutory intervention, the
State cannot or be permitted to change the fundamental character of association or alter the
composition itself.
This rationale33 is not, however, inconsistent with that behind the observations made in the Sakal
Papers case34 because that decision prohibits laws which "directly restrict one freedom by placing an
 84

otherwise permissible restriction on another freedom". Thus, if an individual uses his freedom of
expression in furthering a business, the Legislature is at liberty to impose restrictions on that business
even though such restrictions incidentally affect the freedom of expression; but such restrictions would
be invalid if, in the name of controlling the business, they directly curb the freedom of expression.35
This is the theory of 'direct impact' propounded by our Supreme Court in cases like Gopalan36 and
Express Newspapers37 which still holds good.
Of course, in the Hamdard Dawakhana case38 the Court sought to avoid this difficulty by saying that
advertisement was an exercise of the freedom of business and not of expression, but this, it is
submitted, should not be taken is the basis of that decision inasmuch as the same act may be the
exercise of more than one freedoms; thus, a public procession may be the exercise of the freedoms of
assembly as well as of expression; when a businessman speaks to his customer, it does not cease to
be a 'speech'.39The true test for determining the validity of a restriction imposed upon such act is
against which of the freedoms is the restriction directly levelled? This test forms the alternative basis
of the decision in the Hamdard case40 and that, the Author submits, is the true test. In the words of
KAPUR J., who spoke for the Court in the Hamdard case:41
"... the scope and object of the Act, its true nature and character, is not interference with the right of
freedom of speech but it deals with the trade or business; and there is no direct abridgement of the
right of free speech and a mere incidental interference with such right would not alter the character of
the law".42
The Author's conclusion, therefore, is--if a restriction directly and substantially affects the freedom of
speech, whether it is exercised by a scholar or a trader, it can be justified only on any of the grounds
of restriction specified in cl. (2) and not any ground specified in any of the other limitation clauses of
Art. 19.43
Learned author H.M. SEERVAI in his book Constitutional Law of India,44 has commented the decision
of Supreme Court in Sakal Papers (P) Ltd., v. Union of India ,45 and has observed (in page 913 para
10.389) thus:
"It is submitted those decisions establish that when a person or a number of persons claim more than
one fundamental right conferred to Art. 19(1), the legislature has power to put on each fundamental
right the restrictions to which that right is subject. Since the publisher of a newspaper has the right to
freedom of the press, a law can put only those restrictions on his right which are permitted by Art.
19(2); but since he has the right to carry on his business of publishing a newspaper, a law can put
reasonable restriction on that right in the interest of general public. But such restrictions may 'affect'
the freedom of the press. Here, the exercise by the legislature of its undoubted power under Art. 19(6)
"appears" in conflict with the right conferred by Art. 19(1)(a) and the restrictions which can be put on
that right under Art. 19(2). How is that conflict resolved? The majority judgment in the case (Bennett
Colman case) did not raised that issue, and the dissenting judgment raised it partially. It is submitted
that the doctrine of "pith and substances" furnishes a solution on the apparent conflict and the majority
judgment was in error in holding that "the test of pith and substance of the subject matter and of direct
and of incidental effect of legislation are relevant to the legislative competence, but they are irrelevant
to the question of infringement of fundamental rights". According to the learned author, this approach
was legally unsustainable and the Court's attention was not invited to the relevant authorities." 46
Learned author observed that minority judgment in Bennett Coleman's case is correct. It is further
observed that the decision in Sakal Papers (P) Ltd., v Union of India is also not correct approach
when it held that only restrictions which can be put on the freedom of speech and expression are
those mentioned in Art. 19(2) and that restriction, which can be put on business under Art. 19(b) are
irrelevant in considering an alleged infringement of freedom of speech and expression "is too widely
stated".
'In the Interests of: Reasonableness of Anticipatory action
U.S.A.
(A) U.S.A.--The protest against 'prior restraint', which was raised in England against the licensing and
censorship of the Press, was extended by the American Supreme Court to protect any of the First
 85

Amendment freedoms, i.e., freedom of expression,47 of assembly,48 or religion.49 The result is that, as a
general rule, any law which makes the exercise of any of these rights contingent upon the
uncontrolled will of an administrative official shall be unconstitutional as a prior restraint upon and
denial of such freedom, guaranteed by the First Amendment. 50 The Court elaborated in City of
Lakewood v. Plain Dealer Publishing Co .,51in which a city ordinance prohibited unlicensed newsracks
on city sidewalks and gave the major discretion to grant newsrack licences on terms and conditions
that he "deemed necessary and reasonable". The court found that ordinance facially invalid and
explained standardless licensing is always facially invalid. "The licensor's unfettered discretion
coerces parties into censoring their own speech and self-censorship cannot be challenged as applied
because "it derives from the individual's own act ion, not an abuse of government power". A facial
challenge lies whenever a licensing law gives Government substantial power to discriminate based on
content or viewpoint of speech by suppressing disfavoured speech or disliked speakers. Government
may employ special procedures for conduct commonly associated with expression; but the
Constitution requires that a Government establish neutral criteria to insure that its licensing decision is
not based on the content or viewpoint of speech. By contrast, laws of general application that are
aimed at expression carry with them little danger of censorship. A law requiring building permits is
rarely effective as a means of censorship. Such laws provide too blunt a censorship instrument to
warrant judicial intervention prior to an allegation of actual misuse". The principle of the above
decision was applied in Forsyth County v. The Nationalist Movement ,52 where it found facially invalid a
State ordinance that gave authority to base the fee a parade permit on the expected expense of
preserving public peace in connection with the parade demonstration. The authorities' discretion was
so great that it was predictable that the size of permit fee might well turn on "listener's reaction to
speech" which "is not content-neutral basis for regulation". The Court stated that "speech cannot be
financially burdened anymore than it can be punished or banned, simply because it might offend a
hostile mob".
The standards prescribed in Freedman v. Maryland ,53 was held inapplicable to a content-neutral
permit ordinance directed to all act ivity conducted in a public park, in order to co-ordinate multiple
uses of limited space; to assure preservation of the park facilities, to prevent uses that are dangerous
unlawful or impermissible under Park District Rules and to assured financial accountability for damage
caused by the event". A regulation for the use of a public forum that ensures the safety and
convenience of the people is different from censor. Though the State may punish a person
subsequent to an exercise of such right54 if it offends against a legitimate social interest, which it is the
duty of the State to protect (under the doctrine of 'Police power'),--it cannot make the exercise itself
dependent upon a licence or permit to be granted by an official, in the absence of which it could not be
exercised at all.55
In course of time, however a distinction has come to be made between regulation and prohibition. The
State may regulate the time, manner or place for exercise of such rights (e.g., a demonstration at a
court house).56 In the interests of public order, decency, public convenience 57 or the like, but it cannot
directly or indirectly58 prohibit the exercise of any such right by any system of prior restraint. "It must
not, in the guise of regulation, be abridged or denied." 59
But, in order to constitute a valid regulation,--

10a)  it must be proximately related to the legitimate public interest; 60

11b)  the terms of the regulatory law must not be, vague but must offer a "narrow,
objective and definite standards to guide the licensing authority"; 61
8c)  the regulatory law, even where it satisfies the preceding conditions, would
be bad if it is not subjected to procedural safeguards "designed to obviate the dangers of
a censorship system".62 These safeguards, which have been referred to earlier (see
ante), mean in substance that though under emergent conditions, the determination as
to whether an exercise of the freedom of expression or the like would offend against a
legitimate ground of restriction, such as obscenity, 63 may be placed in the discretion of an
administrative official at the initial stage, for a temporary period, the ultimate decision
 86

must be that of a court, whose decision, the administrative authority must himself seek,
and promptly.64
Even injunction issued by a Court has been likened to an administrative prior restraint. 65 Thus, though
the Court would be entitled to issue an injunction to prevent a newspaper from obstructing war
recruitment,66 it cannot be used, in time of peace, to prevent the publication of current news relating to
public affairs 'in the name of national security'.67 In 'Nebraska' Press case, the State District Judge
passed an order restraining the petitioners' from publishing a broadcasting account of confessions or
admissions made by the accused or facts "strongly implicative" of the accused in a widely reported
murder of six persons. It was held that the order prohibited the reporting of evidence adduced by the
person at the open parliamentary hearing, it plainly violated settled principles. There is nothing that
prescribes the press from reporting events that transpire in the Court room. Once a public hearing has
been held, what transpired there could not be subject to "prior restraint". Any such restraint, in the
absence of immediate danger, to the safety of the nation, would amount to a censorship of the Press. 68
In Richmond Newspapers Inc v. Virginia ,69 considered the question as to the right of citizens and the
press to attend criminal trials which is guaranteed under U.S. Constitution. It was held that it was
guaranteed right under the First and Fourteenth Amendment to attend trials. It was further observed
that without freedom to attend such trials, which people have exercised for centuries, important
aspects of freedom of speech and of the press could be eviscerated. No prior restraint could be had in
such cases.70
The law declared in Richmond's case71 and the cases that followed, was in respect of presumptive
right to access to criminal trial, but left undecided whether the right extended to civil proceedings or to
other aspects of Government operation. In Pell v. Procunier ,72 the question was regarding access of
Press from face to face interview with prison inmates. The court upheld a State regulation that barred
the Press from face to face interview with prisoners. The court held that regulation did not abridge free
expression because it did not deny the Press access to sources of information available to members
of the general public. The Court rejected the contention that the Constitution imposes upon
Government the affirmative duty to make available to journalists source of information not available to
members of the public generally.
India
(B) India.--In India, owing to the expression 'in the interests of' and 'reasonable restrictions' in each of
the clauses (2)-(6) of Art. 19, prior restraint or pre-censorship cannot be per se held to be
unconstitutional, and in this respect no distinction is made between the different fundamental rights
specified in Art. 19(1). Anticipatory action has accordingly been held to be valid in respect of the
freedom of expression73 or of assembly74 or of business,75 provided the law which imposes such
restraint satisfies the conditions which may be derived from the aforesaid two expressions in the
relevant limitation clause of Art. 19. It will be seen that such conditions, deduced, by our Supreme
Court, are, in the result, similar to those arrived at by the American Supreme Court:
I. The expression 'in the interests of' suggests that the relation between the restriction imposed by the
law and the ground of restriction authorised by the limitation Clause, e.g., public order, must be
'proximate' and not 'remote'. If this condition is satisfied, even anticipatory action to control or prohibit
the exercise of a fundamental right under Art. 19 may be valid, 76 provided it satisfies the other
condition of reasonableness. The expression "in the interests of" has given a wide amplitude to the
permissible law which can be enacted to impose restriction on the right guaranteed by Art. 19(1)(a) of
the Constitution.77
In order to be "reasonable "restrictions" must have reasonable relation to the object which the
legislation seeks to achieve and must not go in excess of the object". The restriction made "in the
interest of public order" must also have reasonable relation to the object to be achieved, i.e. public
order. If the restriction has no proximate relationship to the achievement of the object, i.e. public order,
it cannot be said that the restriction is a reasonable restriction. 78 Thus a limitation imposed in the
interest of public order to be a reasonable restriction should be one which had a proximate or
reasonable connection or with nexus with public order but not one far-fetched, hypothetical or
problematical or too remote in the chain of its relation with the public order. 79 Reasonability of
 87

restriction excludes possibilities of unreasonable, discriminative, disproportionate and irrational

restriction. They must not be excessive, prohibitive or penal. The expression "public order" is
synonymous with public safety and tranquility. It is the absence of disorder or internal disturbance, but
not disruptive in dimensions. Instigation of civil break, non-violent disobedience, satyagraha are not
breaking public order.80
The right to freedom of speech and expression cannot rise above national interest and interest of
society, which is but another name for the interest of general public. It is true that Art. 19(2) does not
use the words "national interest", "interest of society", but the several grounds mentioned in clause (2)
are ultimately referable to the interest of the nation "and interest of society". 81
Fundamental rights of people as a whole cannot be subservient to claim of fundamental right of an
individual or a section of people. Where the police bona fide apprehends that law and order will be
affected if permission is granted to hold a meeting, the police will be justified in rejecting the same
since the apprehensiveness is real and proximate. When the satisfaction of the police authorities is
supported by materials in rejecting the application, the same cannot be termed as arbitrary or
unreasonable.82If the police feel that the presence or participation of any person in a meeting or
congregation would be objectionable, for some patent or latent reasons as well as the past track
record of such happenings in other places involving such participants, necessary prohibitory order can
be issued preventing the person from entering any particular area or from holding any meeting. The
imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous
consequences, it may result in if not prevented forthwith cannot be lost sight of. The valuable and
cherished right of freedom of speech and expression may at times have to be subjected to reasonable
subordination to social interests, needs and necessities to preserve the very core of democratic life--
preservation of public order and rule of law. At some such grave situation at least the decision as to
the need and necessity to take prohibitory act ion must be left to the discretion of those entrusted with
the duty of maintaining law and order and interpersonation of Courts - unless a concrete case of
abuse of exercise of such sweeping powers for extraneous consideration by the authority concerned
or that such authority was shown to act at the behest of those in power, an interference as a matter of
course as though adjudicating an appeal will defeat the very purpose of legislation and legislative
interest...".83 The right to hold meetings in public places is subject to control of the appropriate
authority regarding the time and place of the meeting. Orders temporary in nature can be passed to
prohibit the meeting or to prevent an imminent breach of place. Such orders constitute reasonable
restriction upon freedom of speech and expression. The content is not the only concern of the
controlling authority, but the time and place of the meeting is also well within its jurisdiction. If the
authority anticipates an imminent threat to public order or public tranquillity, it would be free to pass
desirable direction within the parameters of reasonable restriction on the freedom of individual.
However, the power under s. 144 CrPC can be exercised only in emergent situation. The emergent
power is to be exercised for the purpose of maintaining public order. 84
The words 'in the interests of' thus introduce the 'tendency' test for determining the validity of a
restriction under Art. 19. As the Supreme Court pointed out, in Ramjilal v. State of U.P .,85 --

"A law may not have been designed to directly maintain public order and yet may have been enacted in the
interest of public order. If, therefore, certain act ivities have a tendency to cause public disorders a law
penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction 'in the
interests of public order' although in some cases those act ivities may actually lead to a breach of public
order."86

Anticipatory act ion is thus permissible under our Constitution.87 But it would be wrong to suppose that
any tendency may be curbed under our Constitution. As has already been shown, according to that
American standard, the tendency must be 'reasonable', 'immediate' and 'proximate'. 88 And the same
result has been arrived at under our Constitution. The words "public order" were understood in
America and England as offences against public safety or public peace. The Supreme Court of
America observed in Cantewell v. Connecticut ,89 thus: "The offence known as breach of peace
embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not
only violent act and words likely to produce violence in others. No one would have the hardihood to
 88

suggest that the principle of freedoms of speech sanction incitement to not. ... When clear and present
danger of riot, disorder interference with traffic upon the public streets or other immediate threat to
public safety, peace or order appears, the power of the State to prevent or punish is obvious". As was
pointed out at in Art. 19(2) ante of this Commentary, the question of 'proximity' follows from the other
expression reasonable which qualifies 'restriction':

"...by reason of the word 'reasonable', it will be open to the Courts to say... whether the particular act ivity
which is sought to be prevented has got a real, proximate and reasonable connection with the maintenance of
public order...".

It is gratifying to note that the Author's line of argument has found favour with a unanimous Court
(speaking through SUBBA RAO J.), in the later case of Superintendent v. Ram Manohar :90

"... Apart from the said phrase, another limitation in the Clause, namely, that the restriction shall be reasonable,
brings about the same result... The restriction made 'in the interests of public order' must also have a
reasonable relation to the object to be achieved, i.e., public order. If the restriction has no proximate
relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction
within the meaning of the said clause".91

II. The express on 'reasonable restriction', further, requires that the restriction, whether prior or
subsequent, must be both substantively and procedurally reasonable. The following conditions must,
therefore, be complied with in order that a law imposing a prior restraint may be upheld as
'reasonable':92

11a)  It must not be vague or uncertain93 or in excess of the requirement.94

12b)  It must be temporary95 (as distinguished from an indefinite duration) 96 and
confined to situations of emergency or similar situations. 97
9c)  It must offer a standard or policy for the guidance of the administrative
authority in the matter of exercising his subjective power. 98
6d)  Judicial review at some stage or some form has also been insisted upon as
regards the freedom of expression,99 or association100 or assembly.101
Where the above conditions are satisfied, the Court would support anticipatory action 102 even against a
newspaper, e.g., that contained in s. 144 of the Criminal Procedure Code 103 or s. 2(1)(a) of the Punjab
Special Powers (Press) Act, 1956.104[See, further, under 'Freedom of the Press', post].
Of course, if the anticipatory action is not covered by any of the grounds of restriction specified in cl.
(2) of Art. 19, or the law is overbroad of vague, it would be invalid on that ground. 105 If the Supreme
Court and High Court pass a postponement order under their inherent jurisdiction, such orders would
fall within reasonable restriction under Art. 19(2) and which would be in conformity with societal
interest. Balancing equal public interest by order of postponement of publication or publicity in cases
in which there is real and substantial risk of prejudice to the proper administration of justice or to the
fairness of trial, order of postponement could be passed which will satisfy the requirements of
reasonableness, proportionality under Art. 19(2) and Art. 14. Such orders of postponement are only to
balance conflicting public interest or rights in Part III of the Constitution. They also satisfy the
requirement of justification under Art s. 14 and 21. 106
The Grounds in Particular
I. Sovereignty and integrity of India.--This ground was added as a ground of restriction of the
freedom of expression by the Sixteenth Amendment of the Constitution, with effect from the 6 October
1963. The object was to enable the State to combat cries for secession 1 and the like from
organisations such as the Davida Kazhagam in the South and Plebiscite Front in Kashmir, and act
ivities in pursuance thereof which might not possibly be brought within the fold of the expression
'security of the State'. No independent country will tolerate any agitation on the part of any unit of its
territory either to secede and form an independent State or to integrate with a foreign State.
 89

That amendment is made to guard the freedom of speech and expression being used to assail the
territorial integrity and sovereignty of the Union. Hence it will be legitimate for the Parliament under
this clause to restrict the right of speech if it preaches secession of any part of India from the Union. It
will be noted that the restriction is with respect to territorial integrity of India and not on the
preservation of territorial integrity of constituent States. In view of Art. 3, Constitution itself
contemplates changes of territorial limits of constituent States.
The object of the amendment, obviously, was to confer on Parliament specific power to legislate on
this topic so that the constitutionality of an Act such as the Criminal Law Amendment Act , 1961, could
not be challenged on the ground of being inconsistent with Art. 19(1)(a). By this Act, any expression
(by words, writing or visible representation) which is prejudicial to the 'safety or security' of India has
been made punishable.
But, as the Author has observed (see ante) that Act is anterior to the insertion of the present clause in
Art. 19(2) in 1963, and may not be wide enough to combat the mischief of secessionist propaganda,
which assumes diverse forms.
Any legislation that may be undertaken in this behalf, it may be pointed out, ought to be
comprehensive and effective enough to check indirect devices to carry on such movements, such as
the burning of the Constitution of India or the refusal to take the oath of allegiance or the raising of
flags in any way simulating,2 the flag of a foreign State even on festive or non-political occasions with
a view to encouraging feelings of allegiance to such State and gathering people having such
allegiance. It is essential for the national integration of India not only to unite different communities on
the same platform but also to ruthlessly root out anti-national sentiments which, when allowed to
smother stealthily, are capable of leading to a conflagration, as has been demonstrated occasionally in
the past".3
But the mere fact that a Political Party has been named on the basis of a language which is
recognised under Art s. 344(1) and 351, cannot render the Party illegal as being violative of the
'integrity' of India.4
Legislation by Parliament
It is gratifying to note that subsequent to the foregoing observations of the Author of this Commentary
(see ante) the attention of the Government of India has been drawn to the above burning problem,
and Parliament has enacted the Unlawful Activities (Prevention) Act, 1967 which has provided for the
punishment of an 'unlawful activity' and of being a member of an association which has for its object
any unlawful act ivity which has been defined [ s. 2(f)] as follows--
"unlawful activity' in relation to an individual or association, means any act ion taken by such individual
or association (whether by committing an act by words, either spoken or written, or by signs or by
visible representation or otherwise),--

9i)  which is intended, or supports any claim, to bring about, on any ground
whatsoever, the cession of a part of the territory of India or the secession of a part of the
territory of India from the Union, or which incites any individual or group of individuals to
bring about such cession or secession; or
9ii)  which disclaims, questions, disrupts, or is intended to disrupt the
sovereignty and territorial integrity of India." or
6iii)  Which causes or is intended to cause disaffection against India;
Insult to the National Flag, in any form, has been penalised by the Prevention of Insults to National
Honour Act , 1971.
But there is no provision of law which obliges to sing National Anthem nor it is disrespectful to the
National Anthem. if a person stands up respectfully when the National Anthem is sung does not join
the singing. Though Art. 51-A(a) enjoins a duty on every citizen "to abide by the Constitution and
respect its ideals and institutions, the National Flag and the National Anthem", proper respect is
shown to National Anthem by standing up when it is sung. It will not be right to say that disrespect is
 90

shown by not joining the singing. Nor does it violate s. 3 of the Prevention of Insults to National
Honors Act 1971.5
II. Security of the State.--However precious the freedom of speech may be in a democratic society,
the means can never override the end itself. Since the object of freedom of speech is to "maintain the
opportunity for free political discussion, to the end that Government may be responsive to the will of
the people and that changes, if desired, may be obtained by peaceful means",6 that opportunity can
hardly be maintained without the existence of an organized Government having the power to ensure
the exercise of that right and to prevent interferences with that right which belongs to every citizen. No
State can, therefore, tolerate utterances which threaten the overthrow of organized Government by
unlawful or unconstitutional means.7 The reason is that the security of the State organized
Government is the very foundation of the freedom of speech.
In the words of the American Supreme Court--
"Freedom of speech, press and assembly are dependent upon the power of constitutional government
to survive. If it is to survive it must have the power to protect itself against unlawful conduct and, under
some circumstances, against incitements to commit unlawful acts." 8
(A) U.S.A.--In the U.S.A.,
(i) It has always been acknowledged that the right of free speech does not prohibit the punishment of
utterances which threaten the overthrow of the Government by force or violence 9 or anarchy,10
provided such advocacy is accompanied by some overt act ion. 11 Government has the substantive
authority to protect itself against a violent revolution. 12 In Dennis v. US ,13 the Court upheld the
conviction of the chief leaders of the American Communist Party for violating Smith Act, which
prohibited the knowing advocacy, or attempted advocacy of the duty, necessary desirability or
propriety of overthrowing any Government in the United States by force or violence. The court said
that a speech could be prohibited as posing a clear and present danger of producing a substantive evil
"the gravity of evil" discounted by improbability, justifies such invasion of free speech as is necessary
to avoid the danger. In such cases, the Government need not wait until the putsch is about to be
executed. The Court said: "If government is aware that a group aiming at its overthrow is attempting to
indoctrinate its members and to commit them to a course whereby they strike when circumstances
permit act ion by the Government is required. An attempt to overthrow the Government by force, even
though doomed from the outset because of inadequate numbers or power of the revolutionists, is a
sufficient evil for Congress to prevent. We reject the contention that success or probability of success
is the criterion". The Smith Act also prohibited knowing members in an organisation which advocates
the overthrow of the Government of the US by force or violence. 14
A mere advocacy of the use of force or violence does not remove speech from the protection of the
free speech clause. Emotionally charged rhetoric by itself is not sufficient to hold that speeches are
likely to incite lawless act ion unless the language is followed by acts of violence. Where violence
happened months after, the Speaker cannot be held liable for compensation. 15
During Cold War era, the national and State Governments also either instituted or greatly expanded
loyalty programmes designed to deny public employment or positions of influence to those who might
use them for subversive purposes. In Alder v. Board of Education ,16 the court upheld a New York law
that authorised dismissal of teachers belonging to proscribed organisation and when a person refuses
to answer question about Communist Party membership, he could be denied admission to the bar. 17
But this position changed in course of time. In US v. Robel ,18 the Supreme Court struck down a law
which prohibited members of Communist organisation from working in defence facilities. The decision
in Adlar v. Board of Education ,19 was also overruled in Keyishian v. Board of Regents ,20which held
that mere membership in Communist Party is not a ground to take penal act ion.
In Brandenburg v. Ohio ,21 the Supreme Court said that mere advocacy or teaching the duty, necessity
or propriety of violence as a means of accomplishing political or industrial reforms or publishing or
circulating or displaying any book or paper containing such advocacy or justifying the commission of
violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal
syndicalism or to voluntarily assemble with a group formed "to teach or advocate the doctrine of
 91

criminal syndicalism" is not per se illegal. It will become illegal only if it incites to imminent lawless
action.
But peaceful22 and orderly opposition to the Government with the object of substituting the
Government of one party by that of "another political party equally high-minded and patriotic, who do
not agree with the one in power" cannot be suppressed. 23
In Stromberg's case, the court declared a California law as unconstitutional which prohibited display of
a "red flag" as a symbol of opposition to established Government. The Supreme Court in that case
reversed the conviction for having a raised a red flag as part of the daily act ivities of Communist
Youth Camp. It was held that the statute was objectionable because its vagueness permitted
punishment for the fair use of "the opportunity for free political discussion".
(ii) It is also in the interests of the security of the State, that the State has the power to prohibit 24 or
punish utterances which obstruct war measures, such as inciting resistance to the participation by the
State in a war25 or to recruitment26 or conscription,27 undermining the morale of the armed force28
publication of war measures or movements which may help the enemy, 29 encouraging curtailment of
production of goods necessary for prosecution of the war. 30 It is immaterial whether such utterances
are true or false.31
It has been plainly acknowledged that a state of war ipso factosets a limitation upon the sphere within
which the freedom of expression may be exercised, for, "the character of every act depends upon the
circumstances in which it is done".32 Hence,

"When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that
their utterance will not be endured so long as men fight and that no Court could regard them as protected by
any constitutional right."33

(iii) 'Aiding and comforting' the enemies of the United States is 'treason' under Art. III, s. 3(1) of the
Constitution. It is thus an offence defined in the Constitution itself. Any speech or communication
which would help the enemy would thus be punishable.
Of statutory restrictions under the present head may be mentioned:

10i)  The Foreign Agents Registration Act , 1938 (as amended) requires every
person within the United States who acts as an agent of a foreign principal to register
with the Attorney-General as 'foreign propaganda' any "communication or expression by
any person which influences any section of the public with reference to the political or
public policies of a foreign country or a foreign political party ......" Any mails sent from
abroad to persons not registered as required by this Act may be forfeited.
10ii)  The Aliens Registration Act (otherwise known is the Smith Act), 1940 (as
amended), proscribes advocacy of the overthrow of any government, federal, State or
local,--by force and violence and organisation of and knowingmembership in a group
which so advocates. It is evident that mere advocacy is the essence of this crime and no
overt act is necessary.
7iii)  The Internal Security (Subversive Activities Control) Act, 1950, requires that
all literature distributed and all broadcasts made by registered Communist organisations
must be labelled as such.
5iv)  The Espionage Act, 1917, which is applicable only in times of war, forbids
speech and publication obstructing war effort, conscription and the like. It is a permanent
statute which has been applied by a Congressional law during the national emergency
declared by the President in 1950.34
4v)  The Universal Military Training and Service Act, 1948.
U.K.
(B) England.--The following restrictions are imposed by statute upon the common law might of speech
and expression in the interests of 'security of the State':
 92

12a)  The Treason Act, 1795, read with the Treason Felony Act, 1848 makes it a
treason to 'express, utter, or declare, by publishing any printing or writing', an intention or
to incite another, to commit any of the acts of treason, e.g., death or destruction of the
King, to levy war against the King, to move any foreigner to invade the realm; to adhere
to the King's enemies.35(This Act is now replaced by Crimes and Disorder Act, 1998).
13b)  The Unlawful Oaths Act , 1797, makes it an offence for any person to
administer or cause to be administered or to aid or consent to the administering or taking
of an oath to bind the person taking the oath to engage in mutinous or seditious purpose,
or to disturb the public peace, and the like.
10c)  The Incitement to Mutiny Act, 1797, makes it an offence to endeavour to
seduce the King's soldiers or sailors from their duty or to commit an act of mutiny or
traitorous practice.
7d)  The Incitement to Disaffection Act, 1934, makes it an offence to attempt to
seduce any member of the armed forces from duty, or to be in possession of any
document for this purpose, with intent to commit, abet or counsel the commission of the
above offence.
3e)  The Police Act , 1964 (as amended) makes it an offence to attempt to
cause disaffection amongst members of any police force or to attempt to induce any
such member to withhold his services or to commit breaches of discipline. (Now Police
Act , 1997).
3f)  The Official Secrets Act , 1911-89, make it an offence to approach a
prohibited place36 or to obstruct it police officer on guard at prohibited place, 37 or to
communicate to any person any sketch, a police etc., or other information calculated or
intended to be useful to an 'enemy'. The Official Secrets Act s, 1911-1989 serve two
distinct purposes--(a) to protect the interests of State against espionage and other
activities which might be useful to an enemy and, therefore, injurious to States' security;
(2) to guard against the unauthorised disclosures of information which is held by
servants of the State in their official capacity; whether or not the information has any
direct reference to State security as such.
2g)  During war, additional restrictions are placed by Defence Regulations, made
under the Emergency Powers (Defence) Act . Thus, Defence Regulations 39B, 1939,
made it an offence to make use of any false statement to influence public opinion in a
manner likely to be prejudicial to the defence of the realm or the efficient prosecution of
the war.
[As to the common law offence of 'Sedition', see post].
India
(C) India--The Dictionary meaning of the word 'secure' is "untroubled by danger or apprehension, safe
against attack, impregnable."38"To secure" means, is to make safe, to protect from danger, to insure, to
inclose effectually".39"Security" means "Safety of a country or organization against espionage, theft or
other danger".40
Entry 3 of List III speaks of "Security of State"; Entry 9 of List I speaks of "Security of India". Evidently
they are two distinct and different expressions. "Security of State" is a much wider expression and
includes economic security also.41 In that case, the court held that a State with weak economy falls an
easy prey to economic colonies. In the modern world, security of State is ensured not so much by
physical might, but by economic strength - at any rate by economic strength as well as by armed
might. Thus COFEPOSA is related to security of State. Violation of foreign exchange regulations and
smuggling activities has a deleterious effect on national economy thereby causing series of adverse
effect on security of State. The expression "Security of State" refers to serious and aggravated forms
of public disorder and not ordinary law and order problem and public safety. The security of the State
does not and cannot mean merely danger to the security of the entire country, nor can it be restricted
to an upheaval or a rebellion endangering the security of the entire country. 42 The assault on an
individual although with a lethal and dangerous weapon cannot be said to public order in jeopardy act
 93

ual or likely much less security of State.43 The speeches and expressions which encourage violent
crimes are related to security of the State.44 Security of State means "the absence of serious and
aggravated forms" of public disorder as distinguished from ordinary breaches of 'public safety or public
order', which may not involve any danger to the State itself. Thus security of State is endangered by
crimes of violence intended to overthrow the Government. 45 It would thus comprise both external and
internal Security of the State.46

13a)  From the standpoint of external security, the clause would enable the State
to impose restrictions on the freedom of expression with a view to prevent advocacy of
adhering to the enemies of the State or of giving them aid or of obstructing the
successful operation of war activities, e.g., by carrying on a propaganda against
conscription.
Interference with the legitimate programme of the Government for the raising, of the forces 47 or the
conduct of the war, e.g., publication of information as to the movement of troops, 48 incitement of mutiny
or disaffection amongst members of the forces, may also come within the scope of this expression.
The reason why no State can tolerate advocacy of violence against the established order has thus
been put by the American Supreme Court.

'Our Constitution sought to leave no excuse for violent attack on the status quo by providing a legal
alternative--attack by ballot. To arm all men for ordinary change, the Constitution put in their hands a right to
influence the electorate by press, speech and assembly. This means freedom to advocate or promote
Communism by means of the ballot box, but it does not include the practice or incitement of violence".49

Advocacy of any of the offences comprised within the term 'Treason' in England50 or in the U.S.A.51 or
of the offences included in ss. 121-124A of our Penal Code may, thus, be restricted by the State under
the present ground.
But, in the absence of an incitement to violence, mere advocacy of 'Socialism' as a panacea for the
evils of the capitalistic system cannot be restricted in the interests of the security of the State 52 (or
public order). Even the advocacy of 'revolution of the toiling masses,' has been held not to be
prejudicial to the security of the State, where it was not suggested that the toiling masses should effect
the revolution by resorting to arms.53 In this case,54 the Bombay High Court observed--

"It is essential that in a democracy the masses should be politically educated and they are entitled to know the
pros and cons of every political system and every political ideology. So long as it is legal for a political party to
place its views and its principles before the people, it would be improper for the Court to interfere with that right
not only of the party but also of the people of the country."55 Mere membership of a banned organisation will
not make a person a criminal unless he resorts or incites people to violence or creates public disorder by
violence or incitement to violence.56

On the other hand--

Where a poet exhorted the labourers as follows:
"Labourers. Raise now the cry of revolution. You have been the subject of exploitation. Truly,
labourers, only total destruction will create a new world order and will bring happiness." It was held
that, the revolution contemplated by the poet was revolution through violence, by destroying the
existing social order by force, and could be punished in the interests of the security of the State. 57
The words 'in the interests of' imply that the act ual result of the act is immaterial and act s which have
a proximate tendency (see Art. 19(1)(e)) to bring about an overthrow of the State, e.g.,an incitement to
an armed revolution or an infructuous attempt to create a rebellion, inciting foreigners to invade the
realm,58 attempting to overawe by force or show of force the Governments of India and the States or
the Executive Heads such as the President and his Ministers or the Governors and their Ministers, in
the exercise of their powers59 would come within this expression. So also, would the offences included
 94

in ss. 128-138 of the Indian Penal Code , e.g., abetment of mutiny aiding escape of prisoners of State
or of war.
Maintenance of 'official secrets' is also essential for the security of the State, and may, therefore, be a
valid ground for restricting the freedom of communication. 60 In State of Kerala v. K. Balakrishnan ,61
certain parts of the budget were published in a newspaper before the budget was presented before
the legislature. The publication in newspaper was a breach of Official Secrets Act . Court said that the
publication is not a mere "technical offence", but a serious offence which might have far reaching
consequences and repercussion on the economy of the State. 62

14b)  From the internalstandpoint, as we have a separate ground relating to

"public order" since the Constitution First Amendment Act, 1951, the early controversy 63
as to whether 'security of the State' would include the concept of 'public order' also, is no
longer of any practical importance.
Nevertheless, the legislative history of the Clause would be useful for understanding its meaning as it
now stands. It may be recalled that in the original Clause, there were two expressions--"undermine the
security" of the State and "tends to overthrow" the State, but no mention of "public order". It must have
been a serious oversight on the part of the Constituent Assembly if it had unintentionally omitted to
cover 'public order' as a ground of restriction when it was so acknowledged even under the American
Constitution. On the other hand, it would have been a tautology if it had intended to convey the same
meaning by two different expressions in the same Clause. It is these considerations which weighed
with the Author in interpreting the expression 'security of the State', see Art. 19(2)-(6) of the
Commentary, before Romesh Thappar64came into the field. The observations of the Author deserve
notice in view of the subsequent course of events:

1Perhaps the greatest trouble that any particular word of Art. 19
is capable of giving to the Courts under the Constitution,... Th
e Dictionary meaning of the word 'secure' is "untroubled by danger or apprehension,
safe against attack, impregnable". It would thus comprise both external and internal
security of the State. At the same time the use of the word 'security' in juxtaposition with
the words "overthrow of the State" implies that acts undermining the security of State
need not necessarily be associated with violence. Prima facie, it seems that the phrase
"security of the State" refers to acts less serious than those referred to by the other
phrase "overthrow of the State." One thing may be mentioned at once. Any act which
aims at disturbing 'public order' would affect or undermine the security of the State.
If these unlawful act s affect the security of the State, incitement to commit these acts would also
forfeit the freedom of expression guaranteed by the Constitution. Incitement to commit a crime65such
as murder, may be said, in general, to undermine the security of the State.
According to the canons of interpretation, it is permissible to refer to previous and contemporary
legislation in order to appreciate the meaning of a legal term or the power conveyed by it. Now, at the
time when the words "security of the State" were incorporated by the Constituent Assembly in Art.
19(2), we had several Provincial enactments relating to Public Security, and we may refer to their
contents to have an idea of the act s which may, broadly speaking, be referred to as affecting the
"security of the State". Of course, it should not be supposed that the mere fact that any particular act
is included in any of these Act s would preclude the Court from determining whether such act is an Act
"undermining the security of the State" within the meaning of Art. 19(2) of the Constitution.
According to the Bombay Public Security Measures Act (VI) of 1947, security of the Province
includes--
'public safety, maintenance of public order, and preservation of peace and tranquillity.'
In the cases of Romesh Thappar66 and Brij Bhushan,67 FAZI ALI J. accepted the above interpretation in
toto when he, relying upon contemporary legislation, identified 'security of the State', 'public safety'
and 'public order' and observed--
 95

'It is difficult to hold that public disorder or disturbance of public tranquillity are not matters which
undermine the security of the State."68
The majority, speaking through SASTRI C.J., refused to accept this view on the ground, inter alia, that
the Indian Penal Code classified offences against the State separately from the offences against the
public tranquillity, and that, accordingly, the concept of 'security of the State' could not include ordinary
breaches of 'public order' as such, but would comprise, offences directed against the State itself. In
Ram Manohar Lohia v. State of Bihar ,69 the Supreme Court said that an act ivity which affects 'law and
order' may not necessarily affect 'public order' and an activity which might be prejudicial to "public
order" may not necessarily affect "security of State". Absence of public order is an aggravated form of
disturbance of public peace which affects the general current of public life. Any act which merely
affects the security of others may not constitute a breach of public order. 70
Lovers of liberty would certainly welcome the decision of the majority 71 which gave a strict
interpretation to the limitation Clause with respect to the cherished freedom of expression. But the
legislature could not rest in peace, finding itself helpless to impose any restriction upon this freedom
for the prevention of 'fighting words'72 causing a public disorder when even the Universal Declaration of
Human Rights (Art. 19) and the Draft Covenant on Civil and Political Rights [Art. 16(3)] permitted
restrictions on such ground.
The Constitution was, therefore, amended in 1951 to include 'public order' as an additional ground of
restriction in Cl. (2) of Art. 19. What is interesting is that subsequent to this amendment, in State of
Bihar v. Sailabala ,73 to which SASTRI C.J. himself was a party, the Court explained its observations in
Romesh Thappar's case74 by saying that it was never intended that an offence against 'public order'
could in no case affect the security of the State itself. So observed the Court--

"It is plain that speeches or expressions on the part of an individual which incite to or encourage the
commission of violent crimes, such as murder, cannot but be matters which would undermine the security of
the State...".75

It follows from Sailabala's case,76 thus, that some offences against public order even though they are
committed against individuals, as distinguished from the State, may affect the Security of the State,
and the advocacy of such offences may, thus, be restricted under the ground of 'security of the State'.
The view of the Author, expressed in the First Edition, is thus eventually upheld. The Supreme Court
explained that three expressions 'public tranquility', 'public order' and 'security of State' have different
meanings. Acts which disturb serenity of others will come under the category of 'public tranquility'.
'Public order' will cover act s like affray, breaches of peace, a small riot, etc.77 Acts which aim at
overthrowing of State or causing disturbance of peace on a large-scale would amount to danger to the
security of State.78
But, as stated earlier, a hair-splitting distinction between 'security of State' and 'public order' is of no
practical importance today, after the insertion of 'public order' as a separate ground, for, any offence
against public order in the widest sense will be covered by the 'latter ground' even though it be
debatable whether it is serious enough to undermine the foundation of the State itself. Thus, inciting
members of the police to withhold their services may be suppressed either in the interests of security
of the State or of public order.79
What is of importance still in the majority view in Romesh Thappar's case80 is the emphasis upon the
'degree of' invasion of the public peace which draws the line between 'public order' and 'security of the
State'. Now that 'public order' has been inserted as a separate ground, it is clear that the expression
'security of the State' cannot be interjected to refer to minor breaches of public order such as unlawful
assembly, rash driving or promoting enmity between the classes, unattended with any violence which
may involve a danger to the State itself. Security of the State, in its internal aspect, would thus mean
security of the established order, against any incitement to subvert the established order by means of
violence as distinguished from the political and democratic weapon of the 'ballot box'. 81 Conversely, the
expression 'public order' cannot be interpreted so widely, as to include the concept of 'security of
State'82 as aforesaid.
 96

The foregoing view of the, Author, expressed in Art. 19 ante, has since been adopted by the Supreme
Court83 to hold that--
Security of the State means 'the absence of serious and aggravated forms of public disorder', as
distinguished from ordinary breaches of 'public safety' or 'public order' which may not involve any
danger to the State itself. Thus, security of the State is endangered by crimes of violence intended to
overthrow the Government.84 levying of war and rebellion against the Government, external
aggression or war, but not by minor breaches of public order or tranquillity, such as unlawful assembly,
riot, affray, rash driving, promoting enmity between classes and the like.
The decision in Romesh Thappar v. State of Madras 85 and Brij Bhushan v. State of Delhi 86 persuaded
Parliament to amend Art. 19 and include "public order" as an additional head. The amended article is
retrospective in operation. This clause (i.e., clause 19(2) as well as clauses (3) and (4) were further
amended in 1963 (Sixteenth Amendment Act) by inserting one more head i.e., 'sovereignty' and
'integrity of India'. Such an amendment was found necessary because it was urged that right to
freedom of speech and expression as mentioned in the Constitution authorised a citizen to propagate
a view that State in the Union had a right to secede from the Union. Actually a political party i.e.,
Dravida Munnetra Kazhagam (DMK) was formed in the old Madras State (now Tamil Nadu) for
asserting such a right. Therefore, Constitution was amended and one more head i.e., "sovereignty and
integrity of India" was included in clause (2) of Art. 19. The inclusion of that expression enabled the
State to impose reasonable restriction on the right of freedom of speech and expression in the interest
of sovereignty and integrity of India. The Forty-Second Amendment introduced the word "integrity" in
the Preamble. With these amendments, it would no longer be possible for any citizen of India to
propagate the view of the right to secession of a State from Indian Union. The Supreme Court
observed: "All the grounds mentioned therein (i.e., security of State, friendly relation with foreign
States, public order, decency or morality, contempt of court, defamation or incitement to an offence)
can be brought under the general head "public order" and 'law and order' does not mean the same
thing as "public order".87It is also held that whether an act relates to law and order or to public order
depends upon the effect of the act and potentiality of the act, if so put as to disturb or dislocate the
even tempo of life of the community, it will be an act which will affect public order. 88
Legislation by Parliament

11i)  The Press (Objectionable Matter) Act, 1951, which remained in force until
1956 [see under 'Freedom of the Press', post], contained restrictions upon expressions
and publications which "incite or encourage any person to resort to violence or sabotage
for the purpose of overthrowing or undermining the Government established by law in
India or in any State thereof or its authority in any area."
Subsequent to the expiry of this Act in February 1956, Parliament enacted the
Criminal Law Amendment Act , 1961 (23 of 1961), imposing restrictions upon the
freedom of expression and of press as well as the freedoms of assembly and of
movement, on grounds of 'security of the State' and public order. The provisions of this
Act are so comprehensive that the relevant provisions are worth reproduction:
1.
1. Whoever by words either spoken or written, or by signs or by visible
representation or otherwise, questions the territorial integrity or frontiers of
India in a manner, which is or is likely to be prejudicial to the interests of
the safety or security of India, shall be punishable with imprisonment for a
term which may extend to three years, or with fine or with both.
1. Whoever publishes a map of India which is not in conformity with
the maps of India as published by the Survey of India, shall be punished
with imprisonment which may extend to six months or with fine or both.
1. No court shall take cognizance of an offence punishable under sub-
section (2) except on a complaint made by the Government.
1.
1.
 97

2. If the Central Government considers that in the interests of the

safety or security of India or in the public interest, it is necessary or
expedient so to do it, may by notification in the Official Gazette, declare
any area adjoining the frontiers of India to be a notified area and
thereupon, for so long as the notification, is in force, such area shall be a
notified area for the purposes of this Section.
2. Whoever makes, publishes or circulates in any notified area any
statement rumour or report which is, or is likely to be, prejudicial to the
maintenance of public order or essential supplies or services in the said
area or to the interests of the safety or security of India, shall be
punishable with imprisonment for a term which may extend to three years,
or with fine, or with both.
2. On and after such day as may be specified in, and subject to any
exemptions for which provision may be made by, a notification issued
under sub-section (1), no person who was not immediately before the said
day a resident in the area declared to be a notified area by the notification
shall enter or attempt to enter that area or be therein except in accordance
with the terms of a permit in writing granted to him by a person, not below
the rank of a magistrate of the first class, specified in the said notification.
1. Any police officer, not below the rank of Sub Inspector of Police,
may search any person entering or attempting to enter, or being in, or
leaving a notified area any vehicle, vessel, animal or article brought in by
such person and may, for the purpose of the search, detain such person,
vessel, animal or article.
1. Provided that no woman shall be searched in pursuance of this sub-
section except by a woman authorised in this behalf by the police officer.
1. If any person is in a notified area in contravention of the provisions
of subsection (3), then, without prejudice to any other proceedings which
may be taken against him, he may he removed therefrom by or under the
direction of any police officer on duty in the notified area, not below the
rank of sub-inspector of police.
1. If any person enters or attempts to enter a notified area or is therein
in contravention of any of the provisions of sub-section (3) be punishable
with imprisonment for a term which may extend to one year or with fine or
both."
2.

11ii)  The Customs Act , 1962 [s. 11(2)(a)] prohibits the export or import, inter
alia, of documents which are prejudicial to the security of India.
8iii)  In the Indian Penal Code , the offences under ss. 121-121A (abetment or
conspiracy to wage war against the Government of India), e.g., to instigate the people to
resort to violence to remove the Government, by some writing;89s. 124A [sedition (see
post)], i.e., to incite disaffection against the Government established by law in India, by
words which have a tendency to create public disorder; 90s. 131 (inciting or abetting
mutiny or seduction from duty of a member of the armed forces) would come under the
present head.
6iv)  The Police (Incitement to Disaffection) Act, 1922 (s. 3) makes it an offence
to do any act which causes or is likely to cause "disaffection towards the Government
established by law in India amongst the members of a police-force or induces or
attempts to induce...any member of a police-force to withhold his services or to commit a
breach of discipline...".91
5v)  The Civil Defence Act , 1968 empowers the Central Government to take
steps for prohibiting acts prejudicial to the civil defence of India, which includes
measures, not amounting to act ual combat, which are necessary for the protection of
 98

any person, property, police or thing in India against any hostile attack, and such
measures may be taken before, during, at or after the time of such attack.
In order to prohibit the publication of any matter in the Press which is prejudicial to
civil defence, the Central Government is empowered to make rules--
1. prohibiting the printing or publication of such matter; and
1. demanding security from any press used for the purpose of printing or
publishing such matter; and
1. forfeiting copies of any publication containing any such matter.

4vi)  The National Security Act , 1980, provides for the preventive detention of
any person "with a view to preventing him from acting in any manner prejudicial to the
defence of India, the relations of India with foreign powers, (and) of the security of India."
3vii)  Besides, there are State Act s which penalise publication of matters which
undermine the security of the State, public order, such as the Punjab Security of State
Act, 1953. It has been held that incitement of employees to commit act s of violence
against the employers may be constitutionally punished in the interest of security of the
State;92 but not mere incitement not to pay Government dues. 93
It is the degree and extent of the reach of the objectionable activity upon the society which is vital for
considering the question, whether a man has committed only a breach of "law and order" or has act
ed in a manner likely to cause disturbance to public order. It is the potentiality of the act to disturb
even tempo of the life of the community which makes its prejudicial to the maintenance of public order.
A person catching hold of a Sub-Inspector and threatening in a public place, as the Sub-Inspector's
attempt to effect arrest of the person's associates, would create a panic in the locality and the same
pertains to public order.94 The expression "insurgency" in Maharashtra Control Of Organised Crimes
Act, 1999 defies a precise definition; yet it could be understood to mean and cover breakdown of
peace and tranquility as also a grave disturbance of public order so as to endanger the security of
State and its sovereignty.95 Where a person along with some of his associates armed with deadly
weapons abused the complainant with filthy language and threatened to murder him and with
weapons, damaged the properties available in the shop and also slapped the complainant and also
threatened persons who had assembled there on hearing the alarm of complainant that they will be
killed, it is not a case of law and order, but a case of public order. 96
The compulsions of the primordial need to maintain order in society, without which the enjoyment of all
rights including the right to personal liberty would lose all their meanings are the true justification for
the laws of preventive detention. The pressures of the day in regard to the imperatives of the security
of the State and of public order might require the sacrifice of the personal liberty of the individuals.
Laws that provide for preventive detention poised that an individual's conduct prejudicial to the
maintenance of public order or to the security of the State or corroding financial base provides
grounds for satisfaction for a reasonable prognostication of possible future manifestations of similar
propensities on the part of the offender. This jurisdiction has been called a 'jurisdiction of suspicion'.
The compulsions of the very preservation of the values of freedom of democratic society and of social
order might compel the curtailment of individual liberty. "To lose our country by a scrupulous
adherence to the written law" said Thomas Jefferson's "would be to lose the law itself, with life, liberty
and those who are enjoying with us, thus absolutely sacrificing the end to the needs". Thus no doubt,
is the theoretical jurisdiction for the law enabling preventive detention. But the actual manner of
administration of the law of preventive detention is of utmost importance. The law has to be justified by
the genius of its administration so as to strike the right balance between individual liberty on the one
hand and the needs of the orderly society on the other. 97
III. Friendly Relations with Foreign States
This exception was added by the Constitution (First) Amendment Act, 1951. There is no such
provision in any other written Constitution. But by the comity of nations, many modern States punish
libels by their citizens against the heads of foreign States on the ground that they would imperil the
peaceful relations with foreign States and involve the State in war.
 99

U.K.
(A) England.--In England, we have a twofold provision for the maintenance of friendly relations with
foreign States:

12i)  At common law, every one is guilty of a misdemeanour who publishes any
libel tending to degrade, revile or expose to hatred and contempt any foreign prince or
potentate, ambassador or other foreign dignitary, with intent to disturb peace and
friendship between the United Kingdom and the country to which any such person
belongs.98 But it is no offence, if the writing is a fair criticism on a matter of public interest.
Nor is it an offence if the writing is calculated to disturb the Government of a foreign
country.
12ii)  The Foreign Enlistment Act, 1870, on the other hand, seeks to prevent
friction with States at peace with the United Kingdom, by making any of the following act
s by a British subject an offence, if done without the King's licence--
2. Acceptance of a commission or engagement in the naval or military forces of
a foreign State at war with a friendly State, or leaving the country with intent to
accept such engagement.
2. Building, equipment or despatch of a ship, knowing, or having reasonable
cause to believe, that it will be employed by a foreign State at war with a friendly
State.
2. Preparation or fitting out of a naval or military expedition against the territory
of a friendly State.

Again, any person who aids, counsels or procures the commission of any of the offences under the
Act may be tried and punished as a principal; in short, incitementto do any of the above act s is also
an offence.
India.
(B) India.--The interests of maintaining friendly relations with foreign States is not specified in any of
the major Constitutions of the world as a valid ground for restricting the freedom of expression. The
framers of our Constitution might have been Pressed by Art. 2(j) of the Covenant on Freedom of
Information and the inspired prepared by the United Nations Conference in 1948 which approves of
legislative restrictions against:
"systematic diffusion of deliberately false and distorted reports which undermine friendly relations
between peoples or States."
Friendly relation with foreign States is a unique ground of restriction. DR. AMBEDKAR explained
during Parliamentary Debates (18 May 1951) the meaning of the expression as follows: "The
underlying principle of this category, namely, maintenance of friendly relation with a State is nothing
more than an extension of principle of libel and defamation, that you shall do nothing, you shall say
nothing, you shall circulate no rumour which will involve a foreign State in any kind of ignominy".
The expression 'friendly relations with foreign States', being very wide, will include not only libel of
foreign dignitaries, inducement of foreign enlistment, but also propaganda in favour of rival claimants
to authority in a foreign State after India has already recognized a particular person or persons to be
authority in that State, propaganda in favour of war with a State at peace with India, 99 and the like.
The expression "friendly relations with foreign States" means and includes international relations. The
Article permits restrictions to be imposed "in the interest of friendly relation with foreign States" which
include international relations.
National defence and international relations are related areas as in the case of national defence, so in
the case of international relations, the Executive endowed with enormous power. As was said by
JUSTICE STEWARD "This power largely unchecked by the legislative and judicial branches has been
pressed to the very hilt since the advent by the nuclear missile age." 100
 100

It is to be noted, however, that members of the Commonwealth of Nations, including Pakistan, 101 are
not 'foreign States' for the purposes of this Constitution, according to the Declaration of Foreign States
Order, 1950 [see under Art. 367(3), post]. The result is that freedom of speech and expression cannot
be restricted on the ground that the matter is adverse to Pakistan.
The effect of the order, issued under Art. 367(3) is that wherever the words "foreign state" appear in
the Constitution, they must be taken as including a country without the commonwealth. 102 But it cannot
be invoked for any provision, e.g. Art. 7 which does not use expression "foreign state" or Item 9 of List
I.103
Existing Law.--The Foreign Recruiting Act (IV of 1874), follows the English Foreign Enlistment Act by
empowering the Executive to prohibit recruitment and enlistment, and also inducement of or attempt to
induce any person to accept employment in the service of a Foreign State. This Act differs from the
English Act in so far as it leaves it to the Executive to determine as regards which foreign States the
Act shall apply.
It is to be noted that the Foreign Relations Act, 1932, which penalised the libel of foreign dignitaries,
was repealed by Act LVI of 1951 and that at present there is no legislation relating to this subject.
Legislative Power.--Entry 10 of List I gives wide power to the Union with respect to relation with any
foreign country. [see, further, under that Entry].
IV. Public Order
None of the freedoms guaranteed by a written Constitution can flourish in a state of disorder. Order is
an elemental need in any organised society. Hence, as JUSTICE HOLMES of the American Supreme
Court observed--
"The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre
and causing panic".104
It was observed therein that the character of every act depends upon the circumstances in which it is
done. The question in every case is whether the words used are used in such circumstances and
once of such a nature as to create a clear and present danger that they will bring about the
substantive evils that the Congress has a "right to prevent". It is question of proximity and degree."
"The essential rights are subject to the elemental need for order without which the guarantee of civil
rights would be a mockery."105
In another case,106 the Court observed--
"The offence known as breach of the peace embraces a great variety of conduct destroying or
menacing public order and tranquillity. It includes not only violent acts and words likely to produce
violence in others. No one would have the hardihood to suggest that the principle of freedom of
speech sanctions incitement to riot... When clear and present danger of riot, disorder, interference with
traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the
power of the State to prevent or punish is obvious". 107
In Feiner v. N.Y., 108 it was observed--
"While a State may not unduly suppress free communication of views.... under the guise of conserving
desirable conditions, and the police cannot be used as an instrument for the oppression of unpopular
views, they are not powerless to prevent a breach of the peace, when a speaker passed the bounds of
argument and persuasion and undertakes incitement to riot."109
"Civil Liberties as guaranteed by the Constitution, imply the existence of an organised society
maintaining public order without which liberty itself would be lost in the excess of unrestrained
abuses."1
U.S.A.
(A) U.S.A.--
 101

14a)  In the interests of public order, the State may prohibit and punish the
causing of 'loud and raucous noise' in streets and public places by means of sound
amplifying instruments,2 regulate the hours and place of public discussion,3 and the use
of the public streets for the purpose of exercising freedom of speech: 4 provide for the
expulsion of hecklers from meetings and assemblies,5 punish utterances tending to incite
an immediate breach of the peace6 or riot7 (as distinguished from utterances causing
mere 'public inconvenience', annoyance or unrest, e.g., insulting or 'fighting' words,8
libels against an individual or a definite group of people. 9
15b)  Even where it is not attended with violence, the State may restrict the
freedom of speech where it is used as an integral part of unlawful conduct or the
commission of act s in violation of the law,10 or where the speech incites the audience in
such manner that there is a likelihood of imminent breach of the peace which the Police
cannot prevent without stopping the speaker.11 In other words, in the interests of 'public
order' the State may not only punish actual disturbances but also prevent threatened
disorders.12
11c)  Again, if the speech loses its constitutional protection on any other
independent ground e.g., of being obscene or libellous, the additional ingredient of
tendency to lead to a breach of the peace is not required. 13
But--
1. Unless 'fighting words' are used, which are 'likely to provoke the average
person to retaliation and thereby cause a breach of the peace', 14 an expression of
ideas cannot be prohibited or punished merely because the ideas 15 or the
language used16 prohibited are themselves offensive to some of the hearers, 17 or
simply because bystanders object to peaceful and orderly demonstrations. 18
3. Mere apprehension of disturbance is not enough to overcome the right to
freedom of expression.19In this case, the court said: "In our system,
undifferentiated fear or apprehension of disturbance is not enough to overcome
the right to freedom of expression. Any departure from absolute regimentation
may cause trouble. Any variation from the majority opinion may inspire fear. Any
word spoken, in class, in the lunch-room, or on the campus, that deviates from
the views of another person may start an argument or cause of disturbance. But
our Constitution says, we must take the risk....and our history says that it is this
sort of hazardous freedom - this kind of openness - that is the basis of our
national strength and of the independence and vigor of Americans who grow up
and live in this relatively permissive, often disputation, society. Court further said:
"In order for the State in the person of school officials to justify prohibition of a
particular expression of opinion, "it must be able to show that its act ion was
caused by something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint. Certainly, where
there is no finding and no showing that engaging in the forbidden conduct would
"materially and substantially interfere with the requirement of appropriate
discipline in the operation of the school, the prohibition cannot be sustained".
Court in its opinion concluded: "The principal use to which the schools are
dedicated is to accommodate students during prescribed hours for the purpose of
certain types of activities. Among those act ivities is personal communication
among the students. This is not only inevitable part of process of attending
school; it is also important part of education process. A student's rights, therefore,
do not embrace merely the classroom hours. When he is in the cafeteria or on the
playing field or on the campus during authorised hours, he may express his
opinion, even on controversial subject like the conflict in Vietnam, if he does so
without materially and substantially interfering with the requirements of
appropriate discipline in the operation of the school and without colliding with the
rights of others".
4. Fighting words are unprotected because (1) "as epithets or personal abuse"
they are intended to inflict harm, rather than to communicate ideas, and thus not
 102

really "speech" at all; (2) they are likely to provoke the average person to
retaliation, and thereby cause a breach of the peace; (3) they are "no essential
part of any exposition of ideas".
5. The exclusion of "fighting words" from the scope of the First Amendment
simply means that, for the purpose of that Amendment, the unprotected features
of the words are, despite their verbal character, essentially a "non-speech"
element of communication. Fighting words are thus analogous to a noisy sound
truck; each is a mode of speech. Both can be used to convey an idea; but neither
has, in and of itself, a claim upon First Amendment. As with the sound truck,
however, so also the fighting words. The Government may not regulate use based
on hostility--or favouritism--towards the underlying message expressed". 20
6. In another case, Court said: "There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which has never
been thought to raise any constitutional problem. These include the lewd and
obscene, the profane, the libelous and the insulting or fighting words - those that
by their very utterance inflict injury or to incite an immediate breach of peace. It
has been well observed that such utterances are "no essential part of an
exposition of ideas and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest
in order and the morality".21 Fighting words have been regarded from the very
beginning as falling outside First Amendment protection. Such speeches are
utterly without redeeming social importance".22
1. Peaceful and orderly opposition to Government by legal means cannot be
made punishable.23

U. K.
(B) England.--In England, the following statutory restrictions, inter alia, exist, in the interests of public
order, upon the freedom of speech and expression:

13i)  The Public Order Act, 1986,24 makes it an offence, inter alia,
3. to use threatening, abusive or insulting words or behaviour towards another
person;
3. to distribute or display any writing, sign or visible representation which is
threatening, abusive or insulting, with intent to cause that other person to fear
immediate unlawful violence, or to provoke such violence, or whereby that other
person is likely to believe will be used or whereby it is likely to be provoked;
3. to use threatening, abusive or insulting words or behaviour, or displaying
any writing, sign or, other visible representation of like nature, within the hearing
or sight of a person likely to cause harassment, alarm or distress thereby.
7. The offence is no longer confined to a public place or public meeting; it may
now be committed anywhere, including a private place.
1. Under the Public Order Act, 1986, it is also an offence to incite 'racial
hatred', by using threatening, abusive or insulting words or behaviour or writing
with intent to stir up racial hatred, or, if in the circumstances, racial hatred is likely
to be stirred up.
8. This provision of 1986 Act was supplemented by a new section (s. 4A)
inserted by the Criminal Justice and Public Order Act, 1994. This provides that it
is an offence for a person with intent to cause a person harassment, alarm or
distress to (a) use threatening, abusive or insulting words or behaviour or
disorderly behaviour, or (b) display any writing, sign or other visible representation
which is threatening, abusive or insulting, thereby causing that person or another
person (who need not be the intended target of the conduct) harassment, alarm
or distress.
 103

9. In Jordan v. Burgoyne ,25 the accused was convicted for a speech he made
which was provocative 'beyond endurance' to Jews. An interpretation given by
Divisional Court that speech was not likely to lead ordinary, reasonable person to
commit breach of peace was not correct. Court said that the defendant must take
his audience as he finds them and if those words to "that" audience or that part of
audience are likely to provoke a breach of peace, then the speaker is guilty of
offence.

13ii)  The Wireless Telegraphy Acts, 1949-54, the Broadcasting Act, 1981 and 'the
Telecommunications Act, 1984 provide for the regulation of radio and Television
communications.
9iii)  The power of the Lord Chamberlain to prohibit any stage play whenever he
thinks its public performance would militate against good manners, decorum and the
preservation of the public peace, under the Theatres Act, 1843, has been abolished by
the Theatres Act, 1968. But prosecution for causing breach of the peace or inciting racial
hatred remains.
7iv)  It is an offence to make a false report to the Police, with knowledge of its
falsehood [ s. 5(2), Criminal Law Act, 1967], or to disturb any person with false or
offensive telephone calls [s. 78, Post Office Act, 1978].
6v)  Under the Incitement of Disaffection Act, 1934, it is an offence maliciously to
endeavour to seduce any member of the Armed Forces from his duty or allegiance; and
causing disaffection amongst members of the Police Force is an offence under the
Police Act , 1964.
5vi)  See also the Official Secrets Act s. 1911, 1989, post.
No happiness without liberty, no liberty without self-government, no self-government without
constitutionalism, no constitutionalism without morality and none of these greet goods without stability
and order. (INTRODUCTION OF THE FEDERALIST by CLINTON ROSSILER, 1961 Ed).
India
(C) India.--It has been already pointed out [see ante], that this exception was introduced by the
Constitution (First) Amendment Act, 1951, in order to meet the situation arising from the Supreme
Court decision in Romesh Thappar's case26 that local breaches of public order were no grounds for
restricting the freedom of speech guaranteed by the Constitution.
Now that 'public order' has been inserted as an independent ground for restriction of the freedom of
speech and expression, it is necessary to understand the implications of this expression.
In Romesh Thappar's case27 after an elaborate analysis of the concept of 'public order', the majority of
the Supreme Court observed that 'Public Order', is "an expression of wide connotation and signifies
that state of tranquillity which prevails among the members of a political society as a result of the
internal regulations enforced by the Government which they have established." 28
As the Court has said, in the later case of Superintendent v. Ram Manohar ,29 in view of the
Legislature amending the Constitution in pursuance of the above judgment 30 the meaning of the
expression 'public order' has to be determined in the light of the above observation 31 and in
juxtaposition to the other grounds of restriction specified in Cl. (2). So read, 'public order' would be
synonymous with public safety and tranquillity32 and would also refer to public disorders of a local
significance as distinguished from national upheavals, such as revolution, civil strife and war.
Public order is an elemental need in any organised society and no association can flourish in a state
of disorder. The phrase "is accordingly referable to public order of local significance as distinguished
from national upheavels, such as revolution, civil strife and war. Equally, it is distinguishable from the
popular concept of law and order and of security of State. Law and order represents the largest circle
within which is the next circle representing public order and the smallest circle represents security of
the State. Hence an act ivity which affects law and order may not necessarily affect public order and
an activity which may be prejudicial to public order may not necessarily affect security of State." 33
 104

In my youth, says WILL DURRANT, "I stressed freedom and in my old age, I stress order. I have
made the great discovery that liberty is the product of order", and CLINTON ROSSITER in his
Introduction to the Federalist34 says: "No happiness without liberty, no liberty without self-government,
no self-government without constitutionalism, no constitutionalism without morality and none of these
great goods without stability and order. Civil liberties, as guaranteed by the Constitution, imply the
existence of an organised society maintaining public order without which liberty itself would be lost in
the excesses of unrestrained abuses".35
Before an act is held to be prejudicial to public order, it must, therefore, be shown that it is likely to
affect the public at large. As a corollary, it follows that an act which concerns only an individual and
does not amount to an act ivity prejudicial to public peace and tranquility is not prejudicial to public
order. Where the detenu has been charged with the activity of extending threats to the Consulate
General of United States and police had registered a criminal case against him 36 and a judicial officer
who had been removed from service was detained by State Government under a preventive law on
the ground that he had published a pamphlet containing derogatory remarks touching the character
and integrity of Chief Justice37 was held not justified in law.
Public order is an expression of wide connotations and includes public safety or interest and signifies
that the State of tranquility prevailing among the members of a political society, as a result of the
internal regulations enforced by the Government which they have instituted. Surely, danger to human
life and safety, and the disturbance of the public tranquility also fall within the purview of the
expression.38
'Public Order' signifies a state 'tranquility' prevailing among members of a political society as a result
of internal regulations enforced by the Governments which they have instituted and the concept of
public order includes public safety.39It means even tempo of the life of the community taking within its
fold, even a specified locality and a substantial act ion of the community. 40 Forcing entry into school,
setting fire, attempting to throw a bomb at the Police are all connected with public order. 41 The
expression "public order" includes the safety of the public in general, any legislation to regulate the
use of sound amplifiers in public places is valid State of Rajasthan v. Chawla 42. Our act may affect
only individuals while the others though of a similar kind, may have such an impact that it would
disturb the even tempo of the life of the community. An act, for instance, affecting public order may
have such an impact that it would affect both public order and the security of the State. 43
In Brind v. Secretary of State ,44 the Home Secretary issued directives to the broadcasting authorities
pursuant to s. 29(3) of the Broadcasting Act, 1918, prohibiting the broadcasting of direct statements by
representatives of certain terrorist organisations. The same was challenged on the ground that it
violated Art. 10 of the European Convention. The restriction was held to be reasonable and in public
interest but after observing that "ban was probably misguided".
The problem of terrorism "does not come within the ambit of "public order" under Entry I of List II of the
Constitution.45 In Peoples' Union for Civil Liberties v. Union of India 46it was held that to take act ion
under the POTA, mens rea has to be proved, i.e. necessary positive inference that a person has acted
with the intent of furthering or encouraging a terrorist act ivity or facilitating its commission. Mere
expression of sympathy for a terrorist organisation is not sufficient to prevent a person from
expressing his freedom of speech and expression. Only such activities as would be intended or to
have a tendency, to create disorder or disturbance of public peace by resort to violence would
constitute a breach of 'public order'.47Mere membership of a banned organisation cannot incriminate a
person unless he is proved to have resorted to act s of violence or incited people to imminent violence
or does an act intended to create disorder or disturbance of public peace by resort to imminent
violence.48 Where the American Supreme Court said that to teach or advocate the doctrine of criminal
syndicalism is not per se illegal, our Supreme Court in Arup Bhuyan v. State of Assam 49 said that
mere membership in a banned organisation will not make a person criminal. 50
'Law and Order' comprehends disorders of less gravity than those effecting "public order" just as
public order comprehends disorders of less gravity then those effecting "Security of State". 51
On the other hand, the concept of 'public order' must be distinguished from the popular concept of 'law
and order' and of 'security of the State'. They refer to three 'concentric circles'. 'Law and order'
 105

represents the largest circle, within which is the next circle representing public order and the smallest
circle represents security of the State.52Hence, an act ivity which affects 'law and order' may not
necessarily affect 'public order'53 and an activity which may be prejudicial to 'public order' may not
necessarily affect 'security of the State'. Absence of public order is an aggravated form of disturbance
of public peace, which affects the general current of public life or the community at large; 54 and any act
which merely affects the security of others may not constitute a breach of 'public order'. Whether an
act relates to law and order or public order depends upon the effect of the act on the life of the
community or in other words the reach and effect and potentiality of the act, if so put as to disturb or
dislocate the even tempo of life of community, it will be an act which will affect public order. 55
Thus--

14i)  Anything that disturbs public tranquillity disturbs public peace. 56 The
expression 'public tranquillity' is not defined in the Indian Penal Code , but from the
offences included in Chap. VIII of that Code, we may gather what is understood by this
expression by the framers of the Code. These are--(1) Unlawful assembly; (2) Rioting;
(3) Promoting enmity between different classes; (4) Affray.
4. The preaching of communal hatred or feelings of enmity between different
sections of the community can be punished57 (s. 153A, IPC ), and reasonable
preventive measures may also be taken for the maintenance of communal
harmony.58 The test of the offence is whether the writing is likely to rouse
communal passions59 and that is to be determined from the language used, 60 and
the atmosphere in which it is published. The truth of untruth 61 of the statement is
immaterial, and a sensational statement contained in the headlines, put forward at
a time when the atmosphere was surcharged with communal bitterness could not
but accentuate the feelings of enmity and hatred between the two communities. 62It
is imperative that if any individual or group of persons by their action or caustic or
inflammatory speech are bent upon sowing seeds of mutual hatred and their
proposed act ivities are likely to create disharmony and disturb equilibrium,
sacrificing public peace and tranquility, strong action and more so preventive act
ions are essentially and vitally needed to be taken. Any speech or action which
would result in ostracisation of communal harmony would destroy all those high
values which the Constitution aims at. Therefore, when the authorities concerned
in charge of law and order find that a person's speech or act ions are likely to
trigger communal antagonism and hatred resulting in fissiparous tendencies
gaining foothold, undermining and affecting communal harmony, prohibitory
orders need necessarily to be passed to effectively avert such untoward
happenings.
10. No person, however big he may assume or claim to be, should be allowed,
irrespective of the position he may assume or claim to hold in public life, to either
act in a manner or make speeches which would destroy secularism recognised by
Constitution; communal harmony should not be made to suffer and be made
dependent upon the will of an individual or group of individuals, whatever be their
religion, be it of a minority or that of the majority. 63
4. The punishment of expressions which deliberately insult or attempt to insult
the religious belief of a class of citizens (s. 295A, IPC ) has also been upheld as
valid, on the same ground.64 In this case,65 the Supreme Court pointed out that
"the calculated tendency" of such 'aggravated form' of insult was "to disrupt the
public order" and was relatable to "the interest of public order" which was "much
wider than 'for the maintenance of' public order." 66

14ii)  Public order also includes public safety67 in its relation to the maintenance of
public order.68'Public safety' ordinarily means security of the public or their freedom from
danger, external or internal. From the wider point of view, public safety would also
include the securing of public health,69 by prevention of adulteration of foodstuffs,
 106

prevention of epidemics and the like. But from the point of view of 'public order' it would
have a narrower meaning and offences against public safety would include--creating
internal disorder,70 interference with the supply or distribution of essential commodities or
services;71 inducing members of the Police to withhold their services 72 or to commit
breach of discipline,73 or inducing public servants engaged in services essential to the life
of the community to withhold their services.74
In short, public order implies an orderly state of affairs in which citizens can
peacefully pursue their normal avocations of life.75
Maintenance of public order would also include the prevention of a public nuisance,
and would, therefore, include the regulation of the use of loudspeakers, 76 or other noisy
instruments interfering with the comfort of a substantial number or persons. But "loud-
speakers are today indispensable instruments of effective public speech"; 77 hence,
though its excessive use at particular places or hours may be regulated, with a view to
preventing public nuisance, total prohibition of its use at any time would constitute an
unreasonable restriction.78 In Francis v. Chief of Police ,79 the question was whether a
person who has already obtained approval to hold a public meeting, should the speaker
for that meeting be put to the further requirement of having to seek police permission for
the use of microphone also? Did the legislation in question have a restricting or
qualifying effect on the free exercise of freedom guaranteed by the Constitution such as
freedom of speech and of assembly? Did the freedom to speak lawfully at a lawful
assembly of persons cover only the use of one's mere voice, but not speaking
instrument used for better or even adequate communication to the crowd? It was held:
"Liberty consists of doing what one desires. But the liberty of the individual must be thus
far limited, he must be far limited, he must not make himself a nuisance to others". In
that case, the court also took into consideration the decision in Kovacs v. Cooper 80 and
Saia v. New York 81 and held that "public order" must be given a meaning wide enough to
cover act ion taken for avoidance of excessive noise seriously interfering with the
comfort and convenience of a substantial number of persons. The phrase would of
course cover action for avoidance of any behaviour likely to lead to breach of peace or
excessive noise can be brought under that heading. The Court said that a wrongful
refusal of permission to use a loudspeaker at a public meeting (for instance, if the refusal
is implied by political partiality) would be unjustified and, therefore, unconstitutional
interference with the freedom of communication because it would restrict the range of
communication. The Court further said that some regulation of the use of loudspeaker is
required in order that citizens who do not wish to hear what is said may be protected
against "aural aggression" of that unbearable intensity. As some regulation of the use of
noisy instruments is required and system of licensing is the natural method, there must
be some licensing authority to grant or refuse the grant of permission.
In Kovacs v. Cooper ,82 the US Supreme Court by a majority judgment upheld the
validity of an ordinance prohibiting any person to use any sound track or other
instrument that omits "loud and rancous noise" on any public street. It was held that
city's streets are recognised as normal place for exchange of ideas, but this does not
mean that this freedom is beyond all control. It was further held that it was a permissible
exercise of legislative discretion to bar sound tracks to a "loud or rancous" volume from
public ways of Municipalities. The right to free speech is guaranteed to every citizen that
he may reach the mind of willing listeners and to do so, there must be an opportunity to
win their attention. But this freedom does not require legislator to be insensible to claim
by citizens to comfort and convenience. To enforce such freedom of speech in disregard
to the right of others would be harsh and arbitrary in itself.
The right to speech implies the right to silence. It implies the freedom not to listen
and not to be forced to listen. The right comprehends the freedom to be free from what
one desires to be free from. Free speech is not to be treated as a promise to everyone
with opinion and beliefs, together at any place and at any time and express their view in
any manner. The right is subordinate to peace and order. Recognition of the right to
speech or expression is recognition accorded to a human faculty. A right belongs to
 107

human personality and not to a mechanical device. One may put his faculties to
reasonable woes. But he cannot put his machines to injure others. Intervention with a
machine, is not an intervention with or invasion of a human faculty. A computer or robot
cannot be conceded the right under Art. 19 (though it may be needful to man to express
his faculties). No more, a loudspeaker. The use of loudspeaker may be incidental for the
exercise of the right. But, "its use is not a matter of right", or " part of right". Nobody can
claim a fundamental right to create noise by amplifying the sound of his speech with help
of loudspeaker. While one has a right to speech, others have a right to listen or decline
to listen. Nobody can indulge in an angral aggression. If any one increases his volume of
speech and that too with the assistance of artificial devices so as to compulsorily expose
unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the
person speaking is violating right of others to a peaceful, comfortable and pollution free
life guaranteed under Art. 21. Art. 19(1)(a) cannot be pressed into service for defeating
the fundamental right guaranteed under Article 21. 83 In Noise Pollution v. In Re ,84
submission was made to the effect that certain festivals were accompanied customarily
by bursting fire crackers at night or that the fire works industry would be adversely
affected if the restrictive directions were not suspended was on the reasoning that such
rejected consideration cannot come in the way for enforcement of fundamental right to
live in peace and comfort in an atmosphere free from pollution of any kind such as that
caused by noise.
In Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare
Association ,85 held that right to religion guaranteed under Arts. 25 and 26 are subject to
Public Order, morality and health and there is no religion which requires a voice amplifier
and enjoyment of one's right must be consistent with the enjoyment of rights also by
others. It was held that no religious bodies can use a microphone or amplifier from any
religious place from 10 PM to 6 AM and from 6 AM to 10 PM. It can be used only after
maintaining the decibel limit fixed by the Pollution Control laws.
In Grayned v. Rock ford ,86 the US Supreme Court upheld the conviction of the
demonstrators who assembled themselves to protest on schools' racial policy. The
demonstrators were convicted for violating an ordinance which prohibited any person
while on public or private ground adjacent to any building on which the school or a class
whereof is in session to make any noise or diversion which disturbs or tends to disturb
the peace and order of the school. It was held that right to an undisturbed school session
conducive to the students learning is to be preserved and that nothing which disturbs the
class work or involves substantial disorder or invasion of the rights of others has been
prohibited and the ordinances do not violate the First and Fourteenth Amendment to the
American Constitution.
The right of Government to protect citizens from unwanted and unwelcomed noise
was recognised in Ward v. Rock against Racism .87
10iii)  In its external aspect, 'public safety' would mean protection of the country
from foreign aggression.88
Hence, in a pre-Constitution case,89 it was held that under 'public order' the State would be entitled to
prevent propaganda for a State at war with India. But, after the introduction of a separate expression,
'security of the State', by the Constitution of India , that expression would be rendered redundant if
the security from external aggression be also included in the concept of 'public order'. Hence, it has
been held by the Supreme Court90 that 'public order' should be interpreted only to refer to internal
peace.
"So far as Cl. (2) is concerned, security of the State having been expressly and specifically provided
for public order cannot include the security of State though in its widest sense it may be capable of
including the said concept. Therefore, in Cl. (2), public order is practically synonymous with public
peace, safety and tranquillity".91
It has already been stated (see Art. 19(2)-(6) ante), that the expression 'in the interests of' enables the
Legislature to curb tendencies to create a breach of public order, even though no breach of the peace
 108

has act ually taken place.92 But, at the same time, it has also been pointed out that this would not
enable the Legislature to provide for situations which have only a problematic relationship with public
order. Whether in a particular case an utterance would have a tendency to create a breach of public
order is to be determined objectively from the circumstances in which the utterance is made, the
nature of the audience and the like.93 Thus, there are utterances which have an inherent tendency to
lead to a breach of the peace if made in a public place, e.g., to call a Police Officer a 'God-damned
racketeer' while he was arresting the defendant for his unlawful activities in a public place. 94 In
Chaplinsky v. New Hampshire ,95, the Court said that there are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which have never been thought to raise
any constitutional problem. These include the lewd and obscene, the profane, the libelous and the
insulting or fighting words--those which by their very utterance are "no essential part of any exposition
of ideas and one of such slight social values as a step to truth that any benefit that may be derived
from is clearly outweighed by the social interest in order and morality". Resort to epithets or personal
abuse is not in any proper sense communication of information or opinion safeguarded by
Constitution.96 Similarly, while mere belief in or acceptance of any political ideology may not have any
relation to the maintenance of public order, affiliation to a party which is alleged to be spreading a
doctrine of violence rendering life and property insecure and trying to seize power by violence may, in
certain circumstances, lead to an inference that the person concerned is likely to act in a manner
prejudicial to public order.97
It follows that where there is a likelihood of immediate danger of breach of peace, an anticipatory
action, e.g., under s. 144 of the CrPC would be justified under the present clause. 98
On the other hand,--

15a)  Even the intent of the writer would be immaterial if it is wholly ineffective or
unintelligible or nobody is likely to take it seriously.99 Thus, a writing addressed to
labourers to rise in act ion and commit acts of violence against their 'exploiters' may be
reasonably restricted in the interest of public order but not a demagogic writing
addressed to the general public to rise in revolution, couched in mystic or rhetorical
language, though it may be punishable if addressed to an excited mob.100Similarly, it is
not every act of insult or attempt to insult the religious feelings of a class of persons
which is punishable, but acts of insult or attempts to insult the religious beliefs of a class
of persons101 with the deliberate intention of outraging their religious feelings are
punishable because they have a calculated tendency to disrupt the public order.102 It is
imperative that if any individual or group of persons, by their act ion or caustic and
inflammatory speech are bent upon sowing seeds of mutual hatred and their proposed
activities are likely to create disharmony and disturb the equilibrium, sacrificing public
peace and tranquillity, strong action and more so preventive act ions are essentially and
vitally needed to be taken. Any speech or action which would result in ostracisation of
communal harmony would destroy all those high values which the Constitution aims at.
Whenever the authorities concerned in charge of law and order find a person's speech
or act ions are likely to trigger communal antagonism and hatred resulting fissiparous
tendencies gaining a foothold, undermining and affecting communal harmony,
prohibitory orders need necessarily to be passed, to effectively avert such untoward
happenings. No person, however big he may assume or claim to be, should be allowed,
irrespective of the position he may assume or claim to hold in public life, to either act in a
manner or make speeches which would destroy secularism recognised by the
Constitution. Communal harmony should not be made to suffer and be made dependent
upon the will of an individual or a group of individuals, whatever be their religion, be it of
a minority or that of the majority. Persons belonging to different religions must feel
assured that they can live in peace with persons belonging to other religions. 103
16b)  For the same reason, the advocacy of a non-violent disobedience to the civil
laws104 or of non-payment of Government dues without resorting to violence, 105 cannot be
restricted on the ground of 'public order' because the relation between such advocacy or
incitement and the threat to public peace and tranquillity is not proximate but
 109

problematic.106 The threat of going on a hunger strike cannot be termed as

unconstitutional or barred under any law. It is a form of protest which has been accepted
both historically and legally in the constitutional jurisprudence of India. 107 In Ramlila
Maidan Incident, In re,108 the Supreme Court also said that invoking s. 144 CrPC on
"sleeping protesters at midnight" was not correct.
State cannot prohibit or restrain from holding procession and public meetings in a
peaceful manner except on specific and definite reasons and not on mere surmises. But
they can regulate the traffic.1
12c)  For the same reason, scurrilous attacks upon a Judge 2 or the raising or a
defamatory slogan against a Minister3 cannot be punished in the interest of 'public order'.
In sum--

2A)  In the interests of public order, the State may impose restrictions on--
5. The incitement of--
1. withholding of services by public employees or persons engaged in
any employment which is essential for securing the public safety or for
maintaining services essential for the life of the community, 4 or by members
of the police forces;5
1. committing breach of discipline amongst employees of the class
referred to above;6
1. feelings of enmity or hatred between different sections of the
community.7
11.
5. The use of loudspeakers likely to cause a public nuisance 8 or to affect the
health of the inmates of residential premises, hospitals and the like. 9 But the total
prohibition of loudspeakers at any time may constitute an unreasonable
restriction.10 In the interest of public order, the State may prohibit and punish the
causing of loud and rancorous noise in the streets and public place by means of
sound and amplifying instrument, regulate the horns and place of public
discussion and the use of public streets for the purpose of exercising freedom of
speech; provide for the expulsion of hecklers from meetings and assemblies,
peace or riot as distinguished from utterances causing mere "public
inconvenience, annoyance or unrest".11
4. Insulting the religious feelings of any class of citizens, with a deliberate and
malicious intention (s. 295 IPC; s. 99A , CrPC ).
2. Anti-social act ivities.12
1. Forcible conversion.13

The Orissa Freedom of Religion Act was challenged as being ultra vires the
Constitution for infringing the fundamental rights guaranteed under Art. 19(1)(a) and Art.
25 of the Constitution. In that case, two priests who claimed to have dedicated
themselves to the propagation of the Catholic faith and were engaged in evangelisation
leading to conversion of persons belonging to other faith contended that State legislature
has no legislative competence to enact the statute in question. The Court declared that
the Act is ultra vires the Constitution and held: (1) Article 25(1) guarantees propagation
of religion and conversion is a part of the Christian religion; (2) prohibition of conversion
by 'force' or 'fraud' as defined in the Act would be covered by limitation, subject to which
the right is guaranteed; (3) the State legislature had no power to enact the legislation
and (4) the definition of "inducement" is vague. The Court held that the Act essentially
deals with subject matter of "religion" and its provisions do not indeed deal with "public
order".14Similar Act in Madhya Pradesh was challenged by M.P. High Court, which
reached a different conclusion. It was held that the exercise of fundamental right of
religious freedom under Art. 25 is 'subject to public order, morality and health'. The word
 110

"public" has, therefore, to be read with the other phrases as well. Therefore the
restriction will be public order, public morality and public health. 15 With respect to the
application of entry No.1 of List II of the 7th Schedule of the Constitution, the Supreme
Court differed with the view expressed by Orissa High Court and held that "public order"
conveys a wider connotation and the subject matter of the Act is covered by the said
entry. As to question of legislative competence of State legislature in passing the two
Acts (Orissa and M.P. Act s) it was held that because the two laws regulate religion and
fall under Residuary Entry 97 in List I, and prohibits conversion by use of force,
allurement, inducement or by fraudulent means and penalties for such conversion,
therefore, 'provide for public order'. If forcible conversion had not been prohibited, that
would have created public disorder in the State.16
If an individual is of the view that prayers have religious overtone or are religious in
nature and are not consistent with his own religion or his belief, forcing him to sing
prayers or forcing him to fold his hands when prayers are being sung will be a clear
violation of fundamental rights of freedom of speech and expression as well as his
freedom of conscience guaranteed by the Constitution. 17
2B)  On the other hand, the following cannot be restricted or penalised in the
interests of 'Public order'--
2. Advocacy of non-payment of Government dues without resorting to
violence,18 or involving an 'offence'.19
2. Advocacy of the language movement in Assam20.
1. Mere criticism of a Government or any of its policies.21
1. Criticism22 of, or defamatory slogan against, a Minister.
1. Scurrilous attacks upon a Judge.23

'Existing Laws'.--The following are some of the laws on the Indian statute-book relating to restrictions
upon the freedom of speech and expression in the interest of public order:

15i)  The Indian Penal Code , 1860, makes it an offence, inter alia, to promote
enmity between different classes of citizens, by words, either spoken or written, or by
representation or otherwise (s. 153A); to circulate any rumour or report likely to cause
mutiny or failure of duty by members of the Armed Forces, to cause alarm to any section
of the public whereby any person may be induced to commit an offence against the
State or against public tranquillity, or to incite any class or community to commit any
offence against any other class or community (s. 505), to utter words make visible
representations with deliberate intent to wound the religious feelings or belief of another
person or of any class of citizens (ss. 295A, 298).24[As to 'Sedition' under s. 124A, see
post.].
15ii)  The Indian Telegraph Act , 1885 and the Indian Wireless Telegraphy Act ,
1933. Under these Acts, it has been held that the prohibition of private broadcasting,
except under a licence granted by the Government of India, is a reasonable restriction
under Art. 19(2).25 For the purpose of ensuring the free speech rights of the citizens, it is
not necessary to have private broadcasting stations. Allowing private broadcasting would
be open the door for powerful economic commercial and political interest, which may not
prove beneficial to free speech right of the citizens - and certainly so if strict programme
controls and other controls are not prescribed. The analogy with press is wholly inapt. Air
waves are public property and better remain in public hands in the interest of the very
freedom of speech and expression of the citizens.
While the freedom guaranteed by Art. 19(1)(a) does include the right to receive and
impart information, no one can claim the fundamental right to do so by using and
employing public property. Only where the statute permits him to use the public property,
there only -- and subject to such conditions and restrictions as the law may impose - he
can use the public property viz. the airwaves. In other words, Art. 19(1)(a) does not
enable a citizen to impart his information, views and opinions by using the airwaves.
 111

The airwaves or frequencies are a public property. Their use has to be controlled and
regulated by a public authority in the interest of the public and to prevent invasion of their
rights. Since the electronic media involves the use of the airwaves, this factor creates an
inbuilt restriction on its use as in the case of other public property. 26 Regarding radio
spectrum, it has been held that Government holds the airwaves as a public trustee for
the benefit of the nation and its disposal must be for public good. 27]. Statutes providing
for exhibiting scientific, educational or documentary or a news film of short duration of
fifteen or twenty minutes along with the feature films is not violative or restraint on
freedom of speech or expression.
Whether a compelled speech will or will not amount to a violation of the freedom of
speech and expression will depend upon the nature of "must carry" provision. If a "must
carry" provision furthers informed decision-making which is the essence of the right to
speech and expression, it will not amount to any violation of the freedom guaranteed. If,
however, such a provision compels a person to carry out propaganda or project a
partisan or distorted point of view, contrary to his wish, it may amount to an invasion of
guaranteed freedom. At times, statute imposes an obligation to print certain information
in the public interest. Any food product must carry on its package the list of ingredients
used in its preparation or must print its weight. These are "beneficial" "must carry"
provisions meant to inform the public about the correct quantity and contents of the
product they buy. It enables the public to decide on a correct basis whether a particular
product should or should not be used. Cigarette cartons are required to carry a statutory
warning that cigarette smoking is harmful to health, which is also a "must carry"
provision or a compelled speech. It is meant to further the basic purpose of imparting
relevant information which will enable the user to make a correct decision as to whether
he should not smoke. Such mandatory provision although they compel speech cannot
be viewed as a restraint on the freedom of speech and expression. 28 The US Supreme
Court set aside a State law which compelled embossing of State motto "Live free or Die"
on car licence plates as invading First Amendment rights. Court held that there was no
justification of any State purpose being served by compelling car owners to display the
motto on car number plates.29
In Miami Herald Publishing Co. v. Tormillo ,30 the Court voided a "Right to Reply" statute
that forced newspapers to print, free of charge, replies by political candidates to attacks
made on them in the newspaper. The justification of the State was that it was necessary
to ensure balanced treatment of public issues in newspapers. It was held that the
attempt was impermissible since it was an attempt to direct the press as to what to say.
But in Red Lion Broadcasting Co. v. Federal Communication Commission ,31 the Court
unanimously upheld the Commission's "fairness" doctrine which required broadcasters
to provide balanced coverage of controversial issues and to permit victims of personal
attacks a right to reply. The contrast between the two cases illustrates the court's view
that the First Amendment permits greater control by Government over broadcasting
media than it does over newspapers, magazine and books. 32
In Haque v. Committee for Industrial Organisation ,33 the Supreme Court of USA held that
freedom of speech and expression can be regulated in the interest of all, in the interest
of general comfort and convenience, peace and good order. The privilege of a citizen to
use the streets and parks for the communication of the views on national question may
be regulated in the interest of all, it is not absolute, but relative and must be exercised in
subordination to the general comfort and convenience and in consonance with peace
and good order, but it must not in the guise of regulation, be abridged or denied.
11iii)  The Indian Post Office Act , 1898. It has been held34 that to set up a
Government monopoly in the business of postal communication and to private trading in
it [e.g., a 'courier service']35 is a reasonable restriction under Cls. (2) and (6) of Art.
19(2).36
8iv)  The Police (Incitement to Disaffection) Act, 1922 (s. 3) makes it an offence
to do any act which causes or is likely to cause "disaffection towards the Government
 112

established by law in India amongst the members of a police-force or induces or

attempts to induce... any member of a police-force to withhold his services or to commit
a breach of disciplines...'.37
7v)  The Official Secrets Act , 1923.38
6vi)  The Security and Public Safety Acts of the various States. These Act s,
generally, punish the publication of any statement or report which incites the commission
of any 'subversive act', such as--
(a) Prevention of illegal acquisition, possession or use of arms. (b) Suppression of subversive act s,
endangering communal harmony or safety or stability of the State, such as looting, sabotage,
prejudicing the recruitment or attendance of members of the Police force, fire brigade or other public
servants or to tamper with the loyalty of such persons.
Legislation by Parliament

16i)  The Cinematograph Act (XXXVII of 1952) empowers Government to

suspend the exhibition of any film likely to cause a breach of the peace.
16ii)  Sections 130 of the Bengal Districts Act , 1836 prohibits canvassing or
exhibiting any notice or sign in or near polling stations on the date of pollings. 39
The Dramatic Performances Act , 1876 --an Act to prohibit public dramatic
performances which are scandalous, defamatory, seditious or obscene.
12iii)  The Drugs and Magic Remedies (Objectionable Advertisements) Act (XXI of
1954) prohibits, in the interests of public health, objectionable advertisements relating to
magic cure and self-medication, inter alia, of sexual aliments.40
9iv)  Section 11 of the Customs Act , 1962 empowers the Central Government to
prohibit the import and export of goods if it is satisfied that it is necessary so to do, in the
interests, inter alia, of--
6. the maintenance of the security of India;
6. the maintenance of public order and standards of decency or mortality.

8v)  Criminal Procedure Code, 1973 (s. 95).41

The Criminal Law Amendment (Amending) Act, 1990 which came into force on 17-4-
1990 lays down the ban in these explicit terms. "Whoever publishes a Map of India
which is not in conformity with the Map of India as published by the Survey of India, shall
be punishable with imprisonment which may extend to six months, or with fine or with
both".
The objects and reasons for the said enactment says, "Publication of wrong maps of
India, depicting incorrect boundaries of the Country amounts to indirectly questioning the
frontiers of India and its territorial integrity. Certain measures were taken to ensure that
correct maps of India were published. In 1986, instructions were issued to all State
Governments and Union Territories to see that publishers get their maps vetted by the
Survey of India before publication. It was decided later that the Survey of India would
make available on 'free sale basis' the outline maps of various scales and the publishers
who utilise them as base for their maps would not be required to get their maps vetted
by them.
Where maps were required to be prepared on scales, other than those on which
outline maps were available, the publishers were required to get them vetted by the
Survey of India.
In spite of these measures, instances of incorrect depiction of external boundaries of
India by private agencies, newspapers and so on continued to come to notice. With a
view to discourage the tendency to publish wrong maps of India, with impunity, it was
considered necessary to make it an offence, per se, to publish a wrong map of India.
According to A. G. Noorani, an eminent lawyer, the legislation is violative of Art. 19(2)
and no other democracy punishes wrong maps. As per the Act, the publication of a
wrong map of India is per se an offence and no element of wrong intent or likelihood of
 113

harm is required. According to the learned author, "there is no reason in law or logic why
maps should be dealt with more strictly than writings. The right to dissent extends to
both.42
7vi)  The Emblems and Names (Prevention of Improper Use) Act, 1950. [See
under Art. 19(1)(g), post]. See also the State Emblems of India (Prohibition of Improper
Use) Act 2005 (Act 50 of 2005).
4vii)  The Commission of Sati (Prevention) Act, 1987, makes it an offence, inter
alia, to support, justify or propagate the practice of Sati in any manner [S s. 2(1)(ii), 5].
3viii)  The Civil Defence Act , 1968 [ s. 3(w)] enables the Government to prohibit
the publication of any newspaper etc. containing matters prejudicial to civil defence;
demanding security from any press in that context.
Section 19 of the Cable Television Networks (Regulation) Act, 1995 empowers any authorised officer,
when he thinks it necessary or expedient so to do may, by order, prohibit any cable operator from
transmitting or re-transmitting any programme or channel if it is not in conformity with the prescribed
programme code referred to in s. 5 and advertisement code referred to in s. 6 or if it is likely to
promote, on grounds of religion, race, caste or community or any other whatsoever, disharmony or
feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or
castes or communities or which disturbs or is likely to disturb the public tranquility.
The Young Persons (Harmful Publications) Act, 1956 prohibits sale, let to hire, distribution, publicly
exhibit or in any manner put into circulation any harmful publication i.e., which portrays the
commission of any offence or acts of violence or incidents of a repulsive or horrible nature in any
book, magazine, pamphlet, newspaper or other like publication.
Sections 22 of the Hindu Marriage Act mandates every proceeding under the Act in camera and it
shall not be lawful for any person to print or publish any matter in relation to any such proceeding
except a judgment of the High Court of the Supreme Court printed or published with the previous
permission of the court.
V. Decency or morality
Right to freedom of speech and expression does not extend to indecent or immoral utterances and
publication. In the US, obscenity is not protected by the First Amendment. In the leading case on the
subject, it was held by American Supreme Court thus:- "All ideas having the slightest redeeming social
importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of
opinion - have the full protection of the guarantee (of the First Amendment) unless excludable
because they encroach upon the limited area of more important interests. But implicit in the history of
the first amendment is the rejection of obscenity as utterly without redeeming social importance. 43 In
trying to define "obscenity", the court is faced with the task of trying to define what may be indefinable.
In Roth's case, the Court attempted to draw a distinction between sex and obscenity. 'Obscene'
material, said the Court, is material which deals with sex in a manner appealing to prurient interest,
while the mere portrait of sex in art, literature, scientific words and similar forms is not itself sufficient
reason to deny material the constitutional protection of freedom of expression and press. In making
that distinction, the court adopted the standard whether "to the average person applying the
contemporary community standards, the dominant theme of the material, taken as a whole, appeals to
prurient interest".
In Memoirs v. Massachusetts ,44 the Court restated Roth as follows: "Three elements must coalesce; it
must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient
interest in sex; (2) the material is patently offensive because it affronts contemporary community
standards relating to description or representation of sexual matters; and (3) the matter is utterly
without redeeming social value."45 In Erzmoznick v. City of Jacksonville ,46 the court invalidated an
ordinance forbidding drive-in theatre from showing films containing nudity when the screen was visible
to the general public and in Schad v. Mount Ephrain ,47 it struck down on overbreadth grounds of
conviction for commercial displays of nude dancing in violation of community ban on live
entertainment.
 114

U.K.
(A) England.--In English common law, the word 'obscenity' is used. It is also used in the Obscene
Publications Act, 1959 and 1964. The word 'indecent' is also used in the same sense in the English
statutes relating to obscenity, such as the Indecent Displays (Control) Act and the Post Office Act . But
there is a difference in degree between the two expressions: 48 though both convey the idea of
'offending against the recognised standards of propriety', "indecent is at the lower end of the scale and
obscene at the upper end of the scale... an indecent article is not necessarily obscene, whereas an
obscene article must almost certainly be indecent".49
Obscenity, in general, is an offence against public morals and is a misdemeanour at common law,
committed either by making an indecent publication or by indecent conduct.
"In general all open lewdness, grossly scandalous behaviour, and whatever openly violates decency
or is offensive and disgusting or is injurious to public morals by tending to corrupt the mind and
destroy the love of decency, morality and good order, is a misdemeanour indictable at common law." 50
A conspiracy to corrupt public morals or outrage public decency has come to be recognised as a
separate offence.51
(a) Obscene Publication
The test of an indecent publication or 'obscene libel' is laid down in the classical decision on R. v.
Hicklin 52 thus--
"... the test of obscenity is this, whether the tendency of the matter charged is to deprave and corrupt
those whose minds are open to such immoral influences, and into whose hands a publication of this
sort may fall".53 The common law crime of publishing with the intent to corrupt material (specially
sexual words or pictures) that tends to deprave or corrupt those whose minds are open to immoral
influences. A writing, book, picture or print that it is so obscene that it shocks the public sense of
decency.54
It is true that morality and obscenity are comparative terms and what is obscene or immoral in one
society may be considered to be quite decent and moral in another. But while considering the question
whether certain words or representations are obscene or not, one has to apply standards that are
current in the society in which those words have been uttered or representations made. In the present
state of society in this country or anywhere else, with civilised worlds, there can be no doubt that a
description of the acts preparatory to sexual intercourse however graphic or life-like that description
may be, would be considered obscene.55
But this test has been partially modified by the Obscene Publications Act, 1959, which has replaced
the Act of 1857,--laying down the procedure for taking preventive act ion against obscene publications
and their destruction, as well as punishment for the offence.
[Since there were some deficiencies in 1959 Act, the same was amended in 1964 to cure the
deficiencies and to strengthen the law against publishing obscene matters.]
The law, as it now stands in England, may be stated as follows:

17i)  The essence of the offence is not the motive of the writer or the purpose of
the writing, but its tendency, i.e., its necessary effect,--to deprave and corrupt.56 This
proposition has now received statutory sanction in the Obscene Publications Act, 1959,
which says [s. 1(1)] that a matter is deemed to be obscene--
"If its effect or (where the matter comprise two or more distinct items) the effect of any one of its items
is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to
all relevant circumstances, to read, see or hear....it."
This statutory definition is an improvement in so far as it clarifies that the effect should be judged from
the standpoint of anybody57 who is likely to read the publication, not necessarily, the young peoples,
as was supposed in some cases,58 following R. v. Hicklin .59One difficulty in the 1959 Act's definition of
 115

obscenity is "a tendency to deprave and corrupt". The definition makes it impossible to rely on such
synonyms as "repulsive, filthy, loathsome or lewd"60 and requires jury to consider whether the effect of
a book tends to deprave and corrupt a significant proportion of those likely to read it".
Obscene is not confined to sexual matters : a book dealing with its effect of drug taking may be
obscene61 and so may cards depicting scenes of violence when sold with chewing gum to children. 62
To determine the class of people who are likely to read a publication, the court would not be justified
taking into account who are the majority of readers of such publication; the minority can be excluded
only if they are 'negligible' in number.63 Thus, if a pornographic shop is visited mostly by people of
middle age, and also by some young men, it cannot be said that young people are not likely to read
the literature sold in that shop, unless there is evidence to show that the young visitors are numerically
negligible.64

17ii)  Since the statute does not define the words 'deprave and corrupt', the
common law interpretation will apply. These words, it has been held, do not mean
merely offensive, shocking or disgusting, but mean--
"suggesting to the minds of the young of either sex or even persons of more advanced years,
thoughts of a most impure and libidinous character."65
The effect of the offending publication is to be determined from the standpoint of the mind of the
reader, including emotions; it is not necessary that any physical or overt sexual act ivity should result. 66
Of course, bad conduct may follow from the corruption of the mind, but it is not necessary to constitute
the article obscene.67 In R v. Reiher , the Court of Criminal Appeal took the view that jury should direct
their attention to the result of a book falling into the hands of young people. 68
For the purpose of the Acts, obscenity is not limited to pornographic or sexually corrupting material; a
book advocating drug taking or violence, for instance, may be obscene. Whether or not particular
material is obscene is a question of fact in each case, to be decided by the jury, and expert evidence
is not usually permitted. Materials that merely tends to shock or disgust is not obscene. The intention
or motive of the author in writing or depicting the material is irrelevant.
'Publishing' an obscene article includes distributing, circulating, giving, hiring or lending the article
offering it for sale for hire (the latter does not include displaying such material in a shop, which is
merely an invitation to treat and not an offer), or transmitting it through telephone system by means of
a modem. An "article" may be material that is to be looked at or played over, rather than read, and can
also include, for instance, a negative of a film or any article used to reproduce material to be read or
looked at. This offence is of strict liability, but there is defence of "lack of knowledge", if the defendant
can show, he has examined the article and had no reason to suspect that publishing it would
constitute an offence. There is a special defence of "public good", which applies when the defendant
shows that the publication of the article was justified as being in the interest of science, literature, art
or learning. The offence of possessing an obscene article in the expectation that it will be published for
financial gain is also subject to the defences of lack of knowledge and public good. 69
The words "indecent" or "obscene" (under the Post Office Act, 1953) convey the idea of offending
against propriety, indecency being at the lower, and obscenity at the upper end of the scale. An
indecent article is not necessarily obscene, but an obscene article is almost certainly indecent. 70 In the
Post Office Act, 1953, "obscene" has its ordinary meaning which includes lewd and indecent matter,
but under the Obscene Publication Act, 1959, the sole test of obscenity is whether there is a tendency
to deprave and corrupt.71
The tendency to deprave must be judged with reference to the moral approach of the age in which the
prosecution takes place, and the1 Court cannot overlook the change in the general attitude towards
questions of sex.72

13iii)  The tendency of a publication is to be determined by a reading of the

publication itself; the examination of other books or the opinions of people relating to
other books are irrelevant.73
 116

10iv)  The offending 'article must be read as a whole, to determine its effect.
Section 1(1) of the Obscene Publications Act, 1959 says--
"... an article shall be deemed to be obscene if its effects or (where the article comprises two or more
distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it."

9v)  Purity of motive is no excuse for publication of indecent matter 74 but, if the
manner and extent of the publication are within appropriate bounds, it is a good defence
that the publication is for the public good as being necessary or advantageous to
religion, science, literature or art.75
To this extent, the circumstances of the publication in question becomes a relevant consideration.
Thus,
"a medical treatise with illustration necessary for information of students or practitioners may not be
treated as obscene if so published as to reach such persons, though it might be indictable if exhibited
in a shop window for any passer-by to see. And to exhibit a picture of the nude in a public gallery is
regarded as different from selling photograph of it in the street." 76
This defence has also received statutory recognition in the Obscene Publications Act, 1959, under
'which a person shall not be convicted if he proves that the publication in question is justified as being
for the public good77 on the ground that it is "in the interests of science, literature, art, or learning, or of
other objects of general concern." Further, when this defence is raised, expert evidence is admissible
as to the merits of the publication [ s. 4(2)]. Hence, though expert evidence cannot be called in to
show that it has no tendency to corrupt and deprave, it is admissible to show that it is for the public
good, by proving the qualities of the work.

8vi)  Publication is an essential ingredient of the offence.78 Showing of the

obscene matter to any other person constitutes publication. 79

5vii)  An exception in favour of innocent dissemination has been provided by the

Obscene Publications Act, 1959, under which booksellers and others who have not read
the publication in question or have no reason to suspect it shall not be guilty of the
offence.

17b)  Indecent conduct

18i)  Indecent exhibition is an indictable misdemeanour, if grossly s disgusting,

e.g., keeping of a public booth showing indecent exhibitions for gain; 80 exhibition in a
public place by a herbalist of a picture of a naked man with sores, even though there
was no immoral motive;81(ii) Indecent exposure of a human body (primarily the private
parts) in a public place is an indictable misdemeanour; e.g., showing oneself naked to
the public from a balcony;82 even exposing the naked body of a newly-born baby to
public view;83 bathing close to a public footway frequented by females; 84 undressing
himself on the beach for sea bath, in the vicinity of inhabited houses; 85(iii) exhibiting
deformed children;86(iv) disinterring a corpse.87
Of statutes against obscenity and indecency, we, may mention--
3. Vagrancy Acts, 1824 and 1838 penalise exhibition of obscene pictures,
posters, etc., in any street, public place, shop-window, etc., or the exposure of his
person by a male to insult a female.88
3. The Indecent Advertisements Act, 1889 (amended 1970) penalises certain
advertisements e.g., relating to venereal disease or sexual ailments, if affixed to
any building, street, footpath, public urinal.
 117

2. Venereal Diseases Act, 1917, penalises advertisements relating to treatment

of venereal disease by anyone other than qualified persons.
2. The Postal Services Act, 2000 (s. 85) seeks to prevent the postal services
being used for the dispatch of "indecent or obscene articles". The statute does not
provide a defence of publication for the public good and test appears to be
whether an article offends current standards of propriety. 89
2. Judicial Proceedings (Regulation of Reports) Act, 1926 prohibits publication
of indecent matters relating to judicial proceedings, or particulars of matrimonial
cases.
1. The Protection of Children Act, 1978 (as amended by Criminal Justice and
Public Order) Act, 1994 tightened up the law with regard to indecent photographs
(including films and video recordings) involving children under age of 16.
Offences under the Act include the taking and distribution of indecent
photographs of children and the distribution, showing or advertisement of such
photograph. By the Criminal Justice Act, 1988, it is an offence for a person to
have any indecent photograph of a child in his or her possession.
1. The Customs Act s, 1876 and the Customs and Excise Management Act,
1979, prohibit importation of obscene or indecent matter, and provide for their
destruction.
1. The Children and Young Persons (Harmful Publications) Act, 1955, is
levelled against 'horror comics' and penalises the import or sale of 'harmful
publications' which mean any publication which consists of stories, with or without
the addition of any written matter, portraying "(a) the commission of crimes; or (b)
acts of violence or cruelty; or (c) incidents of a repulsive of horrible nature, in such
a way that the work as a whole would tend to corrupt a child or young person in
whose hands it might fall (whether by inciting or encouraging him to commit
crimes of violence or cruelty or in any other way whatsoever)". 90
1. The Sexual Offences Acts, 1956, 1967 punish indecent act s by or between
males in public (e.g., on the stage), even though such acts between consenting
males would be no offence if done in private.
1. The Obscene Publications Act, 1959 (amended 1964) provides for the
seizure and forfeiture of obscene matters, under a Magistrate's warrant (see
ante).
1. The Theatres Act, 1968, while abolishing censorship of the theatre has
made it punishable to present or direct an obscene performance of a play.
1. The Unsolicited Goods and Services Act, 1971, makes it an offence to send
to another person any publication or advertising material, which is unsolicited and
which describes or illustrates human sexual technique.
1. The Indecent Displays (Control) Act, 1981, makes it an offence to display
indecent material in public.
1. The Local Government(Miscellaneous Provisions) Act, 1982, empowers
local authorities to refuse licence to shops selling sex articles.

The specific objectives of these legislations prevent them from being a grave restriction on the liberty
of expression. The same cannot be said of the common law offence of conspiracy to corrupt public
official. In Shaw v. DPP ,91 the appellant had published the "Ladies Directory" an illustrated magazine
containing names, addresses and other details of prostitutes and their services. House of Lords
upheld Shaw's conviction for the offence of conspiracy to corrupt public morals. Court accepted that
the law must be related to the changing standards of life having regard to fundamental human values
and purposes of society. It was observed that there remains in the courts of law a residual power to
enforce the supreme and fundamental purpose of the law to conserve not only the safety and order,
but also the moral welfare of the State.
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In Knuller Ltd. v. DPP ,92 the appellants published a magazine which contained advertisement by male
homosexuals seeking to meet other homosexuals. Court upheld the conviction for conspiracy to
corrupt public morals.
U.S.A.
(B) U.S.A.--In the U.S.A., the State, under its police powers, has the right to punish utterances tending
to corrupt 'public morals',93 including indecent exposure, obscene language and obscene
publications;94 to proscribe the distribution of obscene literature by injunction; 95 to prevent their
publication;96 to deny them the use of mails;97 or to seize and destroy them.98
In New York v. Ferbar ,99 the court unanimously held that Government could ban the dissemination of
materials that showed children engaged in sexual activity. But the development of new form of
communication, such as cable television and the Internet pose a more difficult problem. How can one
simultaneously maintain free speech for adults while protecting children in a medium that is available
to both? In Reno v. American Civil Liberties Union ,100 the court struck down provisions of the
Communication Decency Act of 1996 designed to regulate "indecent" material on the Internet. In US v.
Playboy Entertainment Group ,101 the court invalidated regulation designed to control access to minors
to sexually explicit programming on cable television. In those cases, the court was concerned to
ensure the restriction designed to protect children not restrict the availability to adult of materials
protected by the First Amendment. The court's position suggests the necessity of exploring non-
censorial approaches to protecting children from inappropriate material such as rating system or
television programme and technological restriction an access to sexually explicit websites on the
Internet. Finally in Ashcroft v. Free Speech Coalition ,102 the court struck down as overbroad a
prohibition on computer-generated images that appear to be minors engaged in sexual activity.
Although acknowledging the encouragement potentially given to pedophiles by some of these
materials, the court held that Government could only proscribe materials that failed the three part test
for obscenity announced in Miller's case.103
"There are certain well defined and narrowly limited classes of speech, the prevention and punishment
of which has never been thought to raise any constitutional problem. These include the lewd and
obscene, the profane, the libellous and the insulting or "fighting words" -- those by their very utterance
inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is clearly "outweighed by the social
interest in order and morality".104
In Miller v. California ,105 obscenity was confined to "works which depict or describe sexual conduct". In
Webster's New International Dictionary, it is defined as "offensive to taste, foul, loathsome,
disgusting".
In Paris Adult Theatre I v. Slaton ,106 in the dissenting opinion of JUSTICE BRENNAN, joined by
JUSTICE STEWART and MARSHALL said "I am forced to conclude that 'obscenity' cannot be defined
with sufficient specificity and clarity to provide fair notes to prevent substantial erosion of protected
speech as a byproduct of the attempt to suppress unprotected speech and to avoid very costly
institutional harms. Given these inevitable side effects of efforts to suppress obscenity, we must
scrutinize with care the State interest that is asserted to justify the suppression. For in the absence of
some very substantial interest in suppressing such speech, we can hardly condone the ill-effects that
seem to flow inevitably from the effort. The State interest in protecting children and in protecting
unconsenting adults may be great. A sexually explicit communication imposed upon a person contrary
to his wishes, has all the characteristics of physical assault and it constitutes an invasion of his
privacy." Similarly, if children are "not possessed of that full capacity for individual choice which is the
pre-supposition of the First Amendment guarantees", then the State may have a substantial interest in
precluding the flow of obscene material even to consenting juvenile.
The term "obscene" means something offensive to chastity, decency or delicacy, expressing and
presenting to the mind or view something that delicacy and purity forbid to be exposed. Indecency is
an act against good behaviour and a just delicacy. Obscenity is such indecency as is calculated to
promote the violation of the law and the general corruption of morals. 1
 119

At the same time, the court held that the free expression guarantee barred a State from "making the
private possession of obscene material a crime". The court based its holding in part on privacy
grounds and in part as vital belief that Government have "no right to control the moral content of a
person's thought. Whatever may be the power of the State to control public discrimination of ideas
inimical to public morality, it cannot constitutionally promise legislation on the desirability of controlling
a person private thought."2 In Stanby v. Georgia ,3 the Court also held "not to apply when possession
of child pornography is in issue". In United States v. Reidel ,4 the Court reversed dismissal of an
indictment for mailing obscene material in violation of federal law. Court said that the conclusion of
district judge's rationale the right to possess obscene material recognised Stanby's case,5 implied a
right to obtain obscene material. Court said that application of that logic would effectively scuttle the
dictum in Roth's case.6 The decision in Stanby only protected "freedom of mind and thought and the
privacy of one's home". In US v. Orito ,7 the Court upheld the federal prohibition of inter-state transport
of obscene material as applied to transportation "purely for private use" and in US v. Twelve 200 -
Foot Reels ,8 the Court upheld the application of federal law to prevent importation of obscene material
for personal use. In Osborne v. Ohio ,9 the court ruled that the principle in Stanby's case did not
protect the private possession of child pornography, material that is not protected by the First
Amendment. The above decisions clearly show that child pornography is contraband and obscenity
depicting adults is semi-contraband - unprotected except for personal use in the narrow sanctuary of
one's home.10
At the same time the court also disapproved the theory that absence, pornographic films acquire
constitutional enormity from State regulation simply because they are exhibited for "consenting" adults
only. There are legitimate State interest at stake in stemming the tide of commercialised obscenity,
even assuring that it is feasible to enforce effective safeguards against exposure to juveniles and
passersby. These include the interest of the public in the quality of life and the total community
environment, the tone of commerce, in the great city centres and possibly, the public safety itself. 11 In
that case, that State, regulation of access by consenting adults to obscene material violates the
constitutional protection of right to privacy enjoyed by petitioner's customers. But it is unavailing to
compare a theatre open to the public for a fee with private home and the marital bedroom. Nothing in
this court's decisions intimates that there is any fundamental privacy right "implicit in the concept of
ordered liberty" to watch obscene movies in places of public accommodation. Conduct that the State
can prohibit on a public street does not become automatically protected by the Constitution merely
because the conduct is moved to a 'bar' or a 'live' theatre stage, anything more than a live
performance of a man and woman locked in a sexual embrace at high noon in Time Square is
protected by Constitution because they are simultaneously engaged in a valid political dialogue.
An obscene publication being outside the protection of the guarantee of freedom of speech, 12 the
Court need not be worried about the 'clear and present danger test and the only thing to be
determined is whether the publication is obscene.13 But the finding that a particular material is
'obscene' must be a judicial finding, which must be promptly obtained after the administrative order is
made and before it becomes final.14
With occasional wavering, the Court is adhering to the proposition that an obscene publication is
outside the realm of constitutionally protected expression, 15 and it has been extended to a film which
depicted sexual performance by a child.16
But--

16a)  Like other grounds of restriction, obscenity would not authorise pre-
censorship; it only justifies punishment after publication. 17 Not only the writer or publisher,
but a keeper, seller18 or advertiser19 of obscene publications may be punished on proof of
knowledge of the contents of the publications.20 A law which seeks to p7enalise such
persons irrespective of scienter, would violate due process.21
Licensing of motion pictures is an exception.22
18b)  A State cannot proscribe the mere possession of obscene literature in the
privacy of one's home.23
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Test of obscenity
As to the test of obscenity, some of the earlier decisions adopted the R. v. Hicklin 24 test of its effect on
particularly susceptible persons. But the Supreme Court has (since 1957) rejected this test and
defined obscene material as
"material which deals with sex in a manner appealing to prurient interest".
and laid down the test as follows:

"whether to the average person, applying contemporary community standards, the dominant theme of the
material taken as a whole appeals to prurient interest".25

The Hicklin test26 has been rejected on the ground that

"judging obscenity by the effect of isolated passages upon the most susceptible person might well encompass
material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the
freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to
withstand the charge of constitutional infirmity".27

"What is offensive to refinement or good taste is not necessarily obscene unless it is concerned with
sexual desire.28 In short, the test of an obscene publication is whether it is erotic.29 Merely vulgar
language cannot be punished as obscene."30 In Constitutional Interpretation,31 learned author CRAIG
R. DUCAT says: "The real challenge lies in defining what constitutes obscene. From 1957, when it
began the attempt, until 1973, when the addition of four new Nixon appointees to the court provided
sufficient votes to create consensus, the court was deeply divided in its efforts to construct a definition.
In the court's disposition of a 1964 case, involving a motion picture called "The Lovers", JUSTICE
STEWART became so exasperated that he confessed in his concurring opinion "I shall not attempt
further to define the kinds of material to be embraced within the shorthand description of hardcore
pornography and perhaps I could never succeed in intelligently doing so. But I do know it when I see it
and the motion picture involved in the case is not that". 32
Although some American Judges struggled with Regina v. Hicklin ,33 test trying to liberalize it, notably
by demanding that work be considered as a whole and that expert testimony be taken for the
determination of obscenity until the Supreme Court held that it swept so broadly and indiscriminately
as to violate the First Amendment. As JUSTICE FRANKFURTER noted in Butler v. Michigan ,34 a case
involving the validity of a statute embodying the Hicklin test "The incidence of this enactment is to
reduce the adult population of Michigan to reading only what is fit for children".
"The proper test of whether a given book is obscene is its dominant effect. In applying this test,
relevancy of the objectionable parts to the theme, the established reputation of the work in the
estimation of approved critics, if the book is modern, and the verdict of the past, if it is ancient, are
persuasive pieces of evidence; for works of art are not likely to sustain a high position with no better
warrant for their existence than their obscene content." 35
It is according to this test of dominant effect that Courts have upheld literature which is intended for
sex education36 and gives "an accurate exposition of the relevant facts of the sex side of life in decent
language" even though it may have an incidental tendency to arouse sex impulses.37 In later cases,38
the Supreme Court appears to have diluted the Roth test39 by holding that a publication is not to be
deemed obscene, even though its predominant appeal be prurient, if it has some40 redeeming social
value. In some cases, again, it has been held that it is only 'hard-core pornography' 41 which may be
punishable as obscene. But the test of 'utterly without redeeming value' has been rejected in later
cases.42
The law is being rewritten so often by the Supreme Court that it is difficult to formulate general
propositions to represent the correct position of the law to-day. Nevertheless, the following tests 43 may
be hazarded, all of which must be satisfied before a material may be condemned as obscene--
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3.  The average person, applying contemporary community standards, should

find that the work taken as a whole, appeals to the prurient interest. 44 In Miller's case,
court further said that sex and nudity may not be exploited without limit by films or
pictures exhibited or sold in places of public accommodation any more than live sex and
nudity can be exhibited or sold without limit in such public place. At a minimum, prurient,
patently offensive depiction or description of sexual conduct must have a serious literary
artistic, political or scientific value to merit First Amendment protection.
The 'Community standard' refers not to any national standard, but to the standard in a
State, because the standards in the different States of the U.S.A. vary in this behalf. 45
3I.  The work must depict or describe, in a patently offensive way, sexual
conduct, such as (a) a representation or description of ultimate sexual act; (b) lewd
exhibition of the genitals, excretory functions and the like. 46
3II.  'The work, as a whole, must lack serious literary, artistic, political or scientific
value.47
A material which depicts the sexual act or the genitals or stimulates prurient interest cannot but be
punished if society has no substantial interest in its publication. In an earlier case, 48 it was held that a
material could not be held to be obscene unless the prosecution proved that it was 'utterly without
redeeming social value'. But subsequently49 the Court has observed that it was virtually impossible for
the prosecution to discharge such onus, because some social value may be claimed for almost every
publication or exhibition. Hence, the word 'serious'50 has been substituted for the word 'utterly'. Hence,
the law at present is that if the prosecution succeeds in proving that the material in question is
patently offensive, according to the first two tests, it will be enough for the prosecution to establish
further that there is no genuine or serious social interest in the publication or depiction of the material,
e.g., medical literature dealing with human anatomy.51
The resultant of the foregoing tests would be that it is only the "public portrayal of hard core sexual
conduct (or lewd exhibition of the genitals) for its own sake, and for the ensuing commercial gain", 52
which can be punished as obscene. Mere nudity is not enough. 53 In Smith v. US ,54 and Pope v. Illinois ,
55
it was held that the final prong of Miller--the presence of serious content--is not to be governed by
local community standards, but by whether a reasonable person would find such value in the material,
taken as a whole.
The publication must be read as a whole56 and in order to determine whether it would tend to stir the
sex impulses or to arouse lustful thoughts, the Court has to form its opinion as to its effect "on a
person with average sex instincts", i.e., a 'normal person.57 While the text of the publication itself is the
primary basis for determining whether it is obscene, the setting in which the publication was presented
may be presented as an aid to such determination,58 such as pandering.59
The 'police powers' may be used only if a publication is 'obscene' in the foregoing sense. Thus, the
Postmaster-General cannot deny to a publication the privilege to which it is otherwise entitled, simply
because it is "indecent, vulgar and risque" or that it does not contribute to the 'public good and the
public welfare'.60 In this case61 it was observed--
"A requirement that literature or art should conform to some norm prescribed by an official smacks of
an ideology foreign to our system... Congress has left the Postmaster-General with no power to
prescribe standards for the literature or the art which a mailable periodical disseminates." 62

17a)  In the USA any move to extend the ambit of obscenity has to face the risk of
refusal by the Supreme Court to enforce any criminal law which does not define the
crime with an unmistakable clarity, e.g., a law which seeks to punish the publication of
"deeds of bloodshed, lust or crime";63 or "harmful"64 or "sacrilegious"65 matter, or
magazines which would appeal to the 'curiosity' of minor persons as to sex. 66
19b)  Again, on the ground that a publication has a tendency 'to corrupt the morals
of youth', the State cannot penalise its sale or circulation among adult people 67 or to
persons who state they are adults.68 Such law violates 'Due Process' inasmuch as it is
"not reasonably restricted to the evil which it is said to deal". 69 Nor would it be legitimate
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to punish a person for mere possession of obscene literature, in the privacy of his
home,70with knowledge of its contents.71
But the case of a person who carries on business in obscene materials is different.
Government may prohibit the use of the mails for the commercial advertisement of
obscene literature, even though it is addressed only to adults. 72
13c)  No literature can be seized as obscene without a prior hearing on the
question of its obscenity.73
India
(C) India.--This exception has been engrafted for the purpose of restricting speeches and publications
which tend to undermine public morals.74
The question whether an utterance is likely to undermine decency or morality is to be determined with
reference to the probable effects it may have upon the audience to which it is addressed. 75 The age,
culture,76 and the like of the audience thus become a material question. But the use of mere abusive
language, which has no suggestion of obscenity to the persons in whose presence they are uttered,
would not come 'under the present ground'.77
Decency indicates that the action must be in conformity with the current standard of behaviour or
propriety. It is not confined to sexual morality alone. In a secular polity, the requirement of correct
behaviour or propriety, is that an appeal to voter should not be made on the ground of candidate's
religion. Seeking votes at an election on the ground of candidate's religion in a secular State, is
against norm of "decency and propriety of the society". In view of the expression in the interests of
and the context of election campaign for a free and fair poll, the right to contest the election being
statutory and subject to the provisions of the Statute, the word decency and morality do not require a
narrow or pedantic meaning to be given to these words. The dictionary meaning of 'decency' is
"correct and tasteful standards of behaviour as generally accepted; conformity with current standards
of behaviour or propriety; avoidance of obscenity; and the requirements of correct behaviour". 78 The
expression "indecent" is not synonymous with obscenity. Indecency is often used with the same
meaning, but may also include anything which is outrageously disgusting. Obscenity is certainly
indecent but what is indecent is not necessarily obscene. The indecency means not being in
conformity with the prevailing standards of propriety or modesty and what is shaking, disgusting or
revolting.79 A beauty contest may not be illegal or obscene so long as the expected standards of
modesty, dignity and preservation of womanhood and her right in society are maintained. It becomes
an objectionable performance if it is grossly indecent, scurrilous or obscene or intended for
blackmailing women. It would offend Arts.14, 14 , 21 and 51-A of Constitution of India and
International covenants accepted by UNO in addition to violation of human rights. 80 It is settled law that
sex and obscenity are not synonymous and it is wrong to classify sex as essentially obscene or even
indecent or immoral.81 It was also held therein that its use designed to play a commercial role by
making it on appeal is not permissible.
Obscene must be so gross and its obscenity so pronounced that is likely to deprave and corrupt those
whose minds are open to influence. A vulgar writing is not necessarily obscene. Vulgarity arouses a
feeling of disgust and revulsion and also boredom, but does not have the effect of depraving,
debasing and corrupting the morals of any reader, whereas obscenity has that tendency.
The concept of obscenity is moulded to a very great extent by the social outlook of the people, who
are generally expected to read the book. It usually differs from country to country, depending on the
standards of morality of contemporary society in different countries. Even the outlook of a Judge may
differ from another Judge on the question of obscenity in as much as even in the matter of objective
assessment of the subjective attitude of the Judge hearing the matter is likely to influence, though
unconsciously, his mind and his decision on the question.82
Speaking in terms of the Constitution, it can hardly be claimed that obscenity which is offensive to
modesty or decency is within constitutional protection given to free speech or expressions because
the article dealing with the right itself excludes it. The freedom of speech and expression is subject to
reasonable restriction which may be thought necessary in the interest of general public and one such
 123

is the interest of the public decency and morality. Section 292 of the Indian Penal Code correctly
understood and applied, seeks no more than to promote public decency and morality. Obscenity by
itself has extremely poor value in the propagation of ideas, opinions and informations of public interest
or profit. When the propagation of ideas, opinions and informations of public interest or profit, the
approach to the problem may become different because then the interest of society may tilt the scales
in favour of free speech and expression. It is thus that books on medical science with intimate
illustrations and photographs, though in a sense immodest, are not considered to be obscene, but the
same illustrations and photographs collected in book form without medical text would certainly be
considered as obscene. In this sense, s. 292 of the Indian Penal Code cannot be said as violative of
Art. 19(1)(a).83 It was held in Ranjit D. Udeshi's case that Sections 292 of the Indian Penal Code was
introduced by Obscene Publication Act 1925 (VIII of 1925) to give effect to Art. I of the International
Convention for the Suppression of Traffic in Obscene Publication signed by India in 1925 in Geneva. It
does not go beyond obscenity which falls directly within the words "public decency and morality" of
second clause of Art. 19. It was held therein that in the field of art and cinema, the adolescent is
shown situations which even a quarter of century ago would be considered derogatory to public
morality, but having regard to enlarged conditions, the same are taken for granted without in any way
tending to debase or debauch the mind. What is to be considered is whether a class of persons, not
an isolated case, into whose hands the book, article or story falls, will suffer in the moral outlook or
become depraved by reading it or might have impure and lecherous thoughts around in their minds. In
that case, the court observed that mere reference to sex cannot be considered obscene in the legal
sense without examining the context of the reference. The words, as the dictionaries tell us, denote
the quality of being obscene which means offensive to modesty or decency, lewd, filthy and repulsive.
It cannot be denied that it is an important interest of society to suppress obscenity. That treating with
sex and nudity in art and literature cannot be regarded as evidence of obscenity without something
more. Treating with sex in a manner offensive to public decency and morality (and there are the words
of our Fundamental Law) judged by our national standards and considered to ponder to lascivious,
prurient or sexually precocious minds, must determine the result. A balance should be maintained
between freedom of speech and expression and public decency and morality, but when the latter is
substantially transgressed the former must give way. In judging the question of decency, the judge in
the first place should try to place himself in the position of author and from the viewpoint of the author
the judge should try to understand what is it that the author has to convey and whether what the
author conveys has any literary or artistic sense. The judge thereafter should place himself in the
position of the reader of every age group in whose hands the book is likely to fall and should try to
appreciate what kind of possible influence the book is likely to have in the minds of the reader. 84
What one has to see is whether a class, not an isolated case, into whose hands the book, article or
story falls suffer in their moral outlook or become depraved by reading it or might have impure and
lecherous thoughts aroused in their minds. If a reference to sex by itself is considered obscene, no
books can be sold except those which are purely religious. 85
Nudity alone is not enough to make material legally obscene. The possession in the home of obscene
newspaper is constitutionally protected, except where such materials constitute child pornography. It
was observed that definition of obscenity differs from culture to culture, between communities within a
single culture and also between individuals within these communities. In judging as to whether a
particular work is abscene, regard must be had to contemporary "moves and national standards". The
test has become some what outdated in the context of internet age which has broken down traditional
barriers and made publications from across the globe with the click of a mouse. Where art and
obscenity are mixed, what must be seen in whether the artistic, literary or social merit of the work in
question outweighs it 'obscene' content.86
The "deprave and corrupt" test must be applied to those likely to see or hear the material in question.
The obscenity or otherwise of material cannot be determined merely by its consideration or analysis,
but, rather, will depend on the character of the consumer. It was held in DPP v. Whyte ,87 that in order
to make a determination as to the type of consumer in question, the court could receive information as
to the nature of the relevant area, the type of shop and the class of people frequenting. The jury must
consider the likely reader in order to determine whether the material would deprave and corrupt him or
her rather than considering the most vulnerable conceivable reader. In Penguin Books case (1961)
 124

Crime Law Reporter 176 which concerned the prosecution of "Lady Chatterly's Lover", the selling
price of the book was taken into account and the fact that being in paperbook it would reach mass
audience.
In Calder and Boyars,88 the jury had to consider whether the article would be likely to deprave and
corrupt "a significant proportion" of those likely to encounter it. The court explained what is meant by
"significant proportion". A significant proportion of a class means a part which is not numerically
negligible, but which may not be less than half". This formulation was adopted in order to prevent
sellers of pornographic material claiming that most of their customers would unlikely to be corrupted
by it. The effect of the articles as a whole on persons likely to encounter it should be considered, not
merely the effect of specific passages of a particularly explicit nature. However, in Anderson,89 it was
made clear that when the article consists of number of items, each item must be considered in
isolation from the others. Thus, a magazine which is on the whole innocuous, but contains one
obscene item be suppressed, although the whole novel could not be.
The framers of Constitution recognise the importance of safeguarding the freedom of speech and
expression since free flow of opinion and ideas is essential to sustain the collective life of the citizens.
When an informed citizen is a pre-condition for meaningful governance in the political sense, a culture
of open dialogue must also be promoted when it comes to societal attitudes. In India, marriage is an
important social institution, but there are certain individuals or groups who do not hold the same view.
Notions of social morality are inherently subjective and criminal law cannot be used as a means to
unduly interfere with the domain of personal autonomy. Morality and criminality are not co-extensive. A
mere statement, expression or a person's opinion when questioned by Press about pre-marital sex
and co-habitation of a man and woman without marriage and an opinion that the same should be
accepted by society is neither obscene nor indecent. Such a personal opinion at no point of time the
speech said anything or described sexual act or said anything that could arouse sexual desires which
has been made in the context of a survey which has touched numerous aspects relating to sexual
habits of people of big habits. Court said that such statements in the long run prompt a dialogue within
the society wherein people can choose to either defend or question the existing social moves. Court
said: "It is not possible to hold that the statements published as part of the survey were in the nature
of obscene communication".90
The basic guidelines for testing obscenity are (1) whether "the average person, applying the
contemporary, community standards" would fined that work, taken as a whole appeals to the prurient
interest"; (2) whether the work depicts or describes, in a patently offensive way sexual conduct
specifically defined by the applicable State law; and (3) whether the work taken as a whole, lacks
serious literary, artistic, political or scientific value. A film must be judged from an average, healthy and
common sense point of view.91
In Director General of Doordarshan v. Anand Patwardhan ,92 the Supreme Court held that the test of
obscenity, which was laid down in R. v. Hicklin ,93 is the only test in India to determine obscenity. The
standard laid out in that case was "whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences and into whose hands a
publication of the sort may fall". The application of the test was not accepted in Butler v. Michigan ,94
wherein it was held that the "the incidence of this test enactment is to reduce the adult population of
Michigan to reading only what is fit for children". It was observed that the application of the above test
had a particularly unfortunate anti-libertarian thrust to it because, in addition to judging the obscenity
of the material in terms of the most peripheral social group who might have contact with it (i.e.
children), the judges looked only at the objectionable parts of the material and did so without regard to
any artistic or literary merit the work might have.
It was held in Anand Patwardhan's case, that the correct approach to be taken is to look at the film as
a whole and not in bits, as any message that is purported to be conveyed by way of a film cannot be
conveyed just by watching certain bits of the film.
When can a film to be publicly exhibited be castigated as prurient and obscene and violate the norms,
i.e., exceeding the limits of decency and morality? It was held: "Art, morals and law's manacles on
aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes
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alone to bark and bite because State made strait-jacket is an inhibitive prescription for a free country
unless enlightened society actively participate in the administration of justice to aesthetics.
The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konarks
and Khajurahos, lofty epics, luscious in patches may be asphyxiated by law, if prudes and prigs, and
State moralists prescribe paradigms and prescribe heterodoxies. 95
A film that illustrates the consequence of a social evil necessarily must show the social evil. The
guidelines must be interpreted in that light. No film that extols the social evil or encourages it is
permissible, but a film that carries a message that the social evil is an evil cannot be made
impermissible on the ground that it depicts the social evil, provided that it must be just sufficient for the
purpose of the film. Any ban on such film (which depicts the social evil--in that case, it was gang rape
and nudity of woman) within the limits would be violative of Art. 19(1)(a). 96
The term 'obscenity' is most often used in a legal context to describe expressions (words, images, act
ions) that offend the prevalent sexual morality. On the other hand, the Indian Constitution guarantees
right to freedom of speech and expression to every citizen. This right will encompass an individual's
take on any issue. However, this right is not absolute, if such speech and expression is immensely
gross and will badly violate the standards of morality of a society. One of the most controversial issues
is balancing the need to protect society against the potential harm that may follow from obscene
material and the need to ensure respect of freedoms of expression and to preserve a free flow of
information and ideas. In judging as to whether a particular work is obscene, regard must be had to
contemporary mores and national standards. But this test has become somewhat outdated in the
context of the internet age which has broken down traditional barriers and made publication from
across the globe available with the click of a mouse. The commitment to freedom of speech and
expression demands that it cannot be suppressed unless the situations created by allowing the
freedom are pressing and the community interest is endangered. The anticipated danger should not
be remote, conjectural or far fetched. It should have a proximate and direct nexus with the expression.
The expression of thought that is impugned should be intrinsically dangerous to public interest. The
expression of thought should be like equivalent of a "spark in a power keg". In order for the State to
justify prohibition of a particular expression of opinion, it must be able to show that its action was
caused something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint. Court said that whatever is absence is not protected by any law.
But all sex-oriented material is not always obscene or even indecent or immoral. The effect of the
words or written material should always be judged from the standards of a reasonable strong-minded,
firm and courageous man i.e., an average adult human being. No attempt has been made till date to
define any yardstick for minors whose tender minds are open for being polluted and are like plain slate
on which painting can be drawn. The Court observed that we are not living in an era of Gandhi, but
certainly we have culture and respect for elders and some decorum and decency towards children. At
the same time, under the guise of incidents shielding minors, it should not be that adult population is
restricted to read and see what is fit for children. There should be no suppression of speech and
expression in protecting children from harmful materials. 97
In Benazir Bhutto v. Federation of Pakistan ,98it was observed thus: "In common parlance, the word
'morality' is far more vague than the word 'decency'. The difficulty of determining what would offend
against morality is enhanced by the fact that not only does the concept of immorality differ between
man and man, but the collective notion of society also differs amazingly in different ages. All that can
be said is that the autonym of the word 'morality' according to the existing notion depends upon act s
which are regarded as acts of immorality by the consensus of general opinion. However, it may be
pointed out that owing to ethnic, cultural and even psychological differences, it is not possible to
formulate a universal standard of morality. Thus, notions of morality vary from country to country and
from age to age and the international community has not yet been able to settle any common code of
morality".
The words 'decency or morality' are wide enough to include all that is punishable in England, as
explained in Art. 19(2)-(6) ante.
'Morality' is a far more vague word than 'decency'.
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'Morality'
Morality means the ideas about right and wrong which are accepted by the right thinking members of
the society as a whole of the country99 and morality is not confined to sexual morality alone. 100 Of
course, in common parlance, 'morality' is used to refer to right conduct in sexual behaviour only, in the
sense conveyed by "obscenity". But it is wider than the concept of obscenity and would also include
the condemnation of "indecent" act s or conduct which may not necessarily be obscene. 101 The
difficulty of determining what would offend against 'morality' is enhanced by the fact that not only does
the conception of immorality differ between man and man, but the collective notion of society also
differs amazingly in different ages. Thus, it was not long ago that birth control per se was regarded as
immoral. But since the Malthus Doctrine of Population, birth control is regarded as a legitimate means
of checking overpopulation. Annie Besant was convicted for publishing literature advocating
contraception.102 But in England or in India103 the publication of such literature from a scientific or
medical standpoint is no longer regarded as an offence. The immorality of an act or representation,
therefore, has to be judged by the moral and national standards of today. 104
One thing is clear, however. According to the existing notions, "immorality" does not refer to act s the
condemnation of which depends upon controversial doctrines but to acts which are regarded as act s
of immorality by the Consensus of general opinion.
Thus, the law of contract takes cognizance only of sexual immorality. 105 The case law, both in England
and India confines the operation of the word to sexual immorality. 106
The following restrictions would be justified in the interest of "public morality" - (a) To punish a
publisher of a book which is intended to be read by children and which contains portrayals of sex acts,
including masturbation, homosexuality and abortion; 107(b) To punish the advocacy of illicit use of
drugs;108(c) A court may hold a trial in camera, exclude the public from the court-room and also prohibit
publication of the proceedings of a case where it is considered necessary to protect public morals
having regard to the evidence to be heard in the case; 109(d) To carry on search of residential premises
for the discovery of immoral documents unfettered by the plea of privacy. 110
In Barnes v. Glen Theatre ,111 a suit was brought against local prosecutor to enjoin the enforcement of
an Indiana Statute that prohibited public nudity. It was contended that ban on nude dancing, violated
First Amendment. Speaking for 5 : 4 majority, Chief Justice Rehnquist concluded that "nude dancing of
the kind sought to be performed here is expressive conduct within the outer parameters of the First
Amendment, though... only marginally so. The statute was held valid for two reasons: (1) its
enactment stemmed from the traditional police power of the States (to protect public health, safety,
welfare and morals) and the prohibition of "public indecency" furthers a substantial Governmental
interest in protecting order and morality". It was further observed that this interest was "unrelated to
the suppression of free expression. It was held that the proscriptive of nudity was not aimed at
suppressing communication, but only an incidental effect on expression.
It is to be noted that in s s. 292-294 of the Indian Penal Code , the word 'obscene' is used in the same
sense of sexual immorality and the heading of the Chapter is 'offences against morals'. From this, it
has been held by the Patna High Court112 that the expression 'interests of morality' in Art. 19(2) is to be
construed in the same sense. The Supreme Court113 has also held that a law penalising the
'commending' of an intoxicant is an unconstitutional restriction of the freedom of speech. Similarly the
incitement of non-payment of Government dues cannot be penalised 'in the interest of morality'. 114
'Decency'
The word 'decency' appears to be wider. Decency must be the absence of indecency. Indecency is not
confined to sexual indecency. It includes anything that "outrages the sense of decency of members of
the public"1 or anything which an ordinary decent man or woman would find to be shocking, disgusting
or revolting.2 The Dictionary meaning of the word 'indecent' is 'unbecoming, immodest, obscene'.
Decency indicates that the act ion must be in conformity with current standard of behaviour or
propriety, and is not confined to sexual morality alone. 3 It means avoidance of obscene language and
gestures. Manmohan v. State of Mysore ,4 a case under Mysore Government Servants Conduct Rules.
As per the Pocket Oxford Dictionary 'decency' means, correct and tasteful behaviour, compliance with
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recognized propriety; avoidance of obscenity and 'decent' means "seemingly not immodest or
obscene or indelicate, respectable, acceptable, good enough".
"Morality and decency" are as fundamental as fundamental rights themselves. A fundamental right is
like the moon and morality like the disc light surrounding it. 5 In Mehtab Jan's case, the Court was
concerned with the prohibition of prostitution in a specified part of a town and it was observed: "A
profession whose practice Pakistani Constitution guarantees to the citizens could not conceivably be a
profession involving indecency and immorality. Is a Constitution intended to guarantee indecency or
immorality?"6
It follows that what is obscene must be indecent7 but there may be words or representations which are
indecent8 without being 'obscene', that is to say, without having any tendency to rouse sexual passion,
but at the same time offending against recognised standards of propriety, e.g., the exhibition in a
public place by a herbalist of the picture of a naked man with sores; 9 the publication of horror comics;10
the advocacy of drug-taking.11 In other words, immorality comprehends moral and spiritual corruption
which may not always manifest itself in corrupt and depraved conduct. 12 An obscene or immoral article
may lead persons morally astray without depraving or corrupting them. 13
In Denver Area Educational Telecommunication Consortium Inc. v. FCC ,14 the Court considered the
constitutionality of the provision of Cable Television Consumer Protection and Competition Act , 1992
in which "indecent programming" was defined as programming that depicts or describes "sexual
activities or organs in a patently offensive manner". The provision was upheld "as a way to protect
children".15
In Constitutional Law,16 the learned authors have extracted what Bhagwat "has said in his article "What
if I want my kids to watch pornography? Protecting children from "Indecent Speech", William & Marry
Bill Right Journal, 671, 698-99, 706 (2003) while discussing the subject". Whose interest is being
protected? It read thus: The effect of the indecency standard is to impose upon parents the views and
values of the local majority regarding what is appropriate farce for minors.... But there are broad moral
differences both within this country and within local communities regarding the appropriateness of sex
education and the exposure of minors to such sexually tinged issues, such as the AIDS epidemic or
prostitution and more broadly, regarding the moral implications of nudity and sexuality. It follows that
the best Governmental regulations of indecent speech are those that facilitate parental control over
their children by lowering the barriers to and cost of such control. Direct suppression of indecent
speech is permissible "only" if such facilitating measures are not practical and there is strong reason
to believe that most parents share the Governments' views regarding the harmful effects of the
censored speech".
In Sable Communications of California v. Federal Communication Commission ,17 the Supreme Court
upheld the anti-obscenity rule imposed by Federal Communication Commission which prohibited both
indecent and obscene phone messages on cable television and on the internet. It was held therein
that "sexual" expression which is indecent but not obscene is protected by the First Amendment.
Although the court agreed that the protection of minors and unconsenting adults furnished adequate
grounds for Government regulation, restriction on communication had to be narrowly tailored to serve
those interests.18 In Rowan v. US Post Office Dept .,19 the Court upheld a federal law permitting
recipients of advertisements for material "which the addressee in his sole discretion believes to be
erotically arousing or sexually provocative" to require the postal service to stop all future mailings to
the recipient from an identified mailer.
In England the concept of 'obscenity' had to be widened in order to penalise advocacy of drug-taking 20
or brutal violence.21 But in India, the Court should not have any difficulty to include such acts under the
wider category of 'interests of decency'. Under the 1959 Act (Obscene Publication Act) it is a defence
to a finding that a publication is obscene if it can be shown that it is in the interest of science,
literature, art, learning or of other object of general concern. It was determined in Penguin Books
case22 in respect of "Lady Chatterly's Lover" that the jury should adopt a stage approach, asking firstly
whether the article in question is obscene and if so going as to consider whether the defendant has
established the probability that its merits are so high as to outbalance its obscenity, so that the
publication is for public good. The failure of the prosecution was seen as a turning point for literary
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freedom and the jury allowed it to be known that the second stage of the test afforded the basis on
which the novel escaped suppression.23
Again, it is in the wider interests of public morality, that the House of Lords held 24 an agreement or
conspiracy to corrupt Public morals or to outrage public decency to be punishable under common law.
In India, use of the word 'morality' or 'decency' would cover any such matter.
The distinction between 'indecent' and 'obscene' is largely one of degree, as explained in a Scottish
case cited in the UK.25
"For a male bather to enter the water nude in the presence of ladies would be indecent, but it would
not necessarily be obscene. But if he directed the attention of a lady to a certain member of his body,
his conduct would certainly be obscene. The matter might perhaps be roughly expressed thus in the
ascending scale: positive--immodest; comparative--indecent; superlative--obscene." 26
A number of statutes refer to "indecency" by which is meant a lower degree of moral depravity than
connoted as obscenity. From the point of prosecutor this renders his task easier, particularly because
evidence of experts is not relevant. The Post Office Act 1935 provides it an offence to "...send or
attempt to send or procure to be sent a postal packet enables any indecent or obscene print, painting,
photograph, lithograph, engraving, cinematograph film, book, card or written communication or any
indecent or obscene article whether similar to the above or not...".
In R v. Anderson and R v. Oz Publication Ltd .,27 the defendant although acquitted under Obscene
Publication Act 1959, was convicted under Post Office Act which provides for punishment for importing
into the country articles which are indecent or obscene. The Telecommunication Act, 1984 also
provides the offence of grossly offensive, indecent or obscene telephone calls. This offence is capable
of applying to the sending of indecent matters in digital format from one computer to another over
public telephone lines.
But, as LORD REID has observed:28
"Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that
it includes anything which an ordinary decent man or woman would find to be shocking disgusting and
revolting."29
In R (Pro-life Alliance) v. BBC ,30 the House of Lords was asked to decide whether an obligation is
imposed on the BBC to ensure that its programmes "do not offend good taste and decency" overrode
the right to freedom of expression of the Alliance who wish to include in an election broadcast vivid but
accurate and unsensationalised images of the process of abortion. A majority of the House refused to
intervene on the ground that deciding the limits of "good taste" is not appropriate to a court and that
BBC has a margin of discretion which it had exercised reasonably. By taking this line, the court
accepted the principle that free expression could be restricted on the ground of "taste alone".
Section 292, IPC .
It would be worthwhile to reproduce Sub-section (2) of s. section 292 of the Indian Penal Code --
"Whoever--

18a)  sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation or for purposes of sale, hire, distribution, public exhibition or circulation,
makes, produces or in his possession any obscene book, pamphlet, paper, drawing,
painting, representation or figure or any other obscene object whatsoever, or
20b)  imports, exports or conveys any obscene object for any of the purposes
aforesaid, or knowing or having reason to believe that such object will be sold, let to hire,
distributed or publicly exhibited or in any manner put into circulation, or
14c)  takes part in or receives profits any business in the course of which he
knows or has reason to believe that any such obscene objects are, for any of the
purposes aforesaid, made, producced, purchased, kept, imported, exported, conveyed,
publicly exhibited or in any manner put into circulation, or-
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8d)  advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this section, or that
any such obscene object can be procured from or through any person, or
4e)  offers or attempts to do any act which is an offence under this section,
shall be punished on first conviction with imprisonment of either description for a
term which may extend to two years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction, with imprisonment of
either description for a term which may extend to five years, and also with fine which
may exten to five thousand rupees.
Exception.-This section does not extend to-
7. any book, pamphlet, paper, writing, drawing, painting, representation or
figure-
2. the publication of which is proved to be justified as being for the
public good on the ground that such book, pamphlet, paper, writing,
drawing, painting, representation or figure is in the interest of science,
literature, art or learning or other objects of general concern, or
2. which is kept or used bona fide for religious purposes;
12.
7. any representation sculptured, engraved, painted or otherwise represented
on or in-
3. any ancient monument within the meaning of the Ancient
Monuments and Archaeological Sites and Remains Act , 1958 (24 of
1958), or
3. any temple, or on any car used for the conveyance of idols, or kept
or used for any religious purpose.
13.

That the ambit of the word 'indecent' is wider31than that of 'obscene' would appear from the provisions
of the (Eng.) Post Office Act, 1953 (s. 11) and the British Telecommunications Act, 1981 (s. 49), where
both the words 'indecent' and 'obscene' are used in juxtaposition. Indecency has been defined to
'include anything that offends the modesty of the ordinary person' (which may not come within the
connotation of the word 'obscene', namely, its tendency to 'deprave and corrupt'). 32
It means that which is offensive to modesty and delicacy, and in the postal laws making indecent
matter unavailable, was intended to exclude such matter as would disseminate immorality in any form.
It means the condition of being outrageously offensive especially in a vulgar or sexual way.
"Obscenity" is that which is offensive to chastity. 'Indecency' is often used with the same meaning, but
may also include anything which is outrageously disgusting. These were not the names of common
law crimes, but were words used in describing or identifying certain deeds which were. 33 The
expression "indecency" is not synonymous with "obscenity" - obscenity is certainly indecent, but what
is indecent is not necessarily obscene. The indecency means not being in conformity with prevailing
standards of propriety or modesty and what is shaking, disgusting or revolting. 34
'Indecency' and 'immodesty' violate the fundamental principle of morality; the former however is
external matter, as dress, words and looks; the latter in conduct and disposition. A person may be
indecent for want of either knowing or thinking better; but a female cannot be immodest without radical
corruption of principle. 'Indecency' may be partial, 'immodesty' is a positive and entire breach of moral
law. 'Indecency' belongs to both sexes, 'immodesty' is peculiarly applicable to the misconduct of
females. It is indecent for females to expose their person; it is 'indelicate' for females to engage in
masculine exercises.35
It is also to be noted that it is in exercise of its power to suppress indecency that the British Parliament
has passed the Unsolicited Goods and Services Act, 1971, prohibiting the unsolicited 'sending of
books or leaflets' which describe or illustrate 'human sexual techniques'.
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Similarly, by the Indecent Displays (Control) Act of 1961, 'sex shops' has been prohibited from making
window displays of sex articles or sexual activities, though they may not be covered by the Obscene
Publications Act .
Obscenity
In interpreting the word 'obscene' in s. 292 of the I.P.C., Indian Courts have uniformly 36 followed R. v.
Hicklin .37 In the result, it means anything calculated to 'inflame the passions' 38 or to suggest thoughts
of a libidinous character.39Webster's Third New International Dictionary (page 1557) defines 'obscene'
as "what is repulsive by reason of malignance, hypocrisy, cynicism, irresponsibility, gross regard to
moral or ethical principles". The test of obscenity is this: "Whether the tendency of the matter charged
as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and to
whose hands the publication may fall". (per COCKBURN in R. Hicklin (supra). It means what is
offensive to modesty or decency which gives rise to emotion of lewdness, filthyness and
repulsiveness.40 In the words of the Supreme Court41 --
"It is treating with sex in a manner appealing to the carnal side of human nature or having that
tendency".42
Tests of
The following tests for determining, whether a particular publication is obscene may be deduced from
leading decisions:
I.

3.  Obscene means 'offensive to modesty or decency; lewd, filthy, repulsive. 43

But even an immodest representation may not be, reasonably restricted in the interests
of decency or morality if it conduces to the propagation of ideas or informations of public
interest, e.g., in the books on medical science.44 In a Delhi case, a book was written by a
sociologist who carried out a research on "call girls". There was reference to sex. But its
object was general good in as much as she had carried out a research on the lives of
call girls and the men helping in the profession of call girls in order to serve social
purpose of eradicating or minimizing the evil of call girls pervading our society. Book was
held not obscene.45 Where art and obscenity are mixed up what must be seen is whether
the artistic, literary or social merit of the work in question outweighs its 'obscene'
content.46 In general, ideas having social importance will prima facie be protected unless
the obscenity is so gross and decided that the interest of the public dictates the other
way. The test of obscenity is thus a question of degree and varies with the moral
standard of the community in question.47 It was held in Ranjit D. Udeshi's case48 that the
test of obscenity to adopt in India is that obscenity without a preponderating social
purpose or profit cannot have a constitutional protection of free speech and expression
and obscenity is treating sex in a manner appealing to the carnal side of human nature
or having that tendency. The test of obscenity, in final analysis, is whether the tendency
of the matter in question is to deprave and corrupt whose minds are open to immoral
influence and into the hands a publication of that sort may fall. 49 The test of obscenity in
ultimate analysis is whether the language complained of would corrupt those minds
which are open to immoral influence. The form of expression and not the actual meaning
is important. Distinction should be drawn between obscenity and frankness of
expression.50
An exhibition of a cinematograph film may be obscene, but when it is exhibited as being permitted by
a certificate under Sections 5A of the Cinematograph Act , 1952, the said certificate brings into the
field the protective umbrella and the court cannot brush aside such certificate in deciding if the
accused is immune from any criminal charge.51
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4.  The test of obscenity is whether the publication, read as a whole, 52 has a
tendency to deprave and corrupt those whose minds are open to such immoral influence
and into whose hands a publication of this sort may fall. It must be responsive to the
values and standards of society and take note of social change. They are required to
ensure that "artistic expression and creative freedom are not unduly curbed". It must be
judged in its entirety from the point of view of its overall impact. It must also be judged in
the light of the period depicted and the contemporary standards of the people to whom it
relates, but it must not deprave the morality of the audience. The writing has to be
looked at as a whole without laying stress on isolated passages or particular expressions
used here and there and the Court had to take into consideration what effect the writing
was to produce in the minds of the readers for whom the publication was intended.
Account had also to be taken of the place, circumstances and occasion of the
publication, as a clear appreciation of the background in which the words were used,
was of very great assistance in enabling the Court to view them in their proper
perspective.53 The test for judging a work should be that of an ordinary man of
commonsense and prudence and not an "out of ordinary or hypersensitive man". The
definition of obscenity differs from culture to culture, between communities within the
same single culture and also between individuals within those communities. Many
cultures have produced laws to define what is considered to be obscene and censorship
is often used to try to suppress or control materials that are obscene under these
definitions.54 It was held therein that it is necessary that a publication must be judged as
a whole and news items, advertisements or passages should not be read without the
accompanying message that is purported to be conveyed to the public. It was further
held that members of the public and readers should not look for meanings in a picture or
written article, which are not conceived to be conveyed through the picture or news item.
Prohibiting dances in bars, so long as the dancers do not expose their body or there was no nude
dancing or nudity was in display, it cannot be said that it is obscene. 55
Under the Obscene Publication Act s of 1959 and 1964 (U.K.), an article is deemed to be obscene, if
its effects or where the article comprises two or more distinct items, the effect of any one of its item is,
if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all
relevant circumstances to read, see or hear the matter contained or embodied in it.
In proceedings against a person for publishing an obscene article, the question as to whether the
article is obscene must be determined without regard to any publication by another person unless it
could reasonably have been expected that the publication by that other person would follow from
publication by the person charged. In proceedings against a person for having an obscene article for
publication for gain, the question whether the article is obscene must be determined by reference to
such publication for gain of the article as in the circumstances, it may reasonably be inferred he had in
contemplation and to any further publication that could reasonably be expected to follow from it, but
not to any other publication.
The issue of obscenity is entirely on the jury and expert evidence on the issue is not admissible. The
words "deprave" and "corrupt" are synonymous. To deprave and corrupt does not merely mean to lead
astray morally. "Deprave" and "corrupt" refer to the effect of a pornographic publication on the mind,
including emotion, it is not necessary that any physical (or overt) sexual activity should result. 56 An
article is not necessarily obscene for the purpose of Obscene Publication Act because it is repulsive,
filthy, loathsome or lewd.57 It is open to an accused to show that an article is so unpleasant or
disgusting that it would not corrupt and deprave, but causes persons to revolt from the activity it
describes.58The Act is not merely concerned with the corruption of the innocent, but protects equally
the less innocent from further corruption and the addict from feeding his addiction; the proportion that
readers whose morals are already in a state of depravity or corruption are incapable of being further
depraved or corrupted is fallacious. The test of obscenity depends on the article and not upon there
being an intention on the part of the author or publisher to corrupt. 59 The tendency to deprave and
corrupt must be determined by reference to the publication of the article. 60 The article must tend to
deprave a significant proportion of those likely to read it. 61 It is not appropriate to consider only the
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largest category of "most likely" readers; other categories of persons may be "likely" readers and
should be disregarded only if they are numerically negligible. 62
The taking, distributing, publishing of indecent photograph or pseudo-photograph of children under the
age of 16 is prohibited by the Protection of Children Act, 1978. This statute is not aimed at censorship
because of the supposed deleterious effect on the users of obscene materials, but at the easily
identifiable harm to children who are involved in taking indecent photograph. The problems caused by
digital technology have been addressed in the 1994 Amendment to this Act . 63
Expert evidence as to the effect of publication is not generally admissible. But regarding its effect on
children, expert evidence is admissible.64 The opinion of experts is admissible in relation to defence of
public good.65 Expert evidence relating to literary and other merits may not deal with the issue of
whether the article is obscene66 except when the jury needs to be informed of likely effect of an article
on children; it is not admissible to establish that obscene articles may have a therapeutic effect on
some individuals.67 In DPP v. A & BC Chewing Gum Ltd .,68 the defendants were sellers of packets of
bubble gum. Inside these packets were cards which showed violent war scenes. The main market for
this gum was targeted towards children. Expert evidence was allowed to show how these children
would likely to be affected by these cards. It was observed: "...as a general rule, a longstanding rule at
common law evidence is inadmissible if it is on the very issue the court has to determine". The main
questions were, what sort of effect would those cards have on young people and children, what would
it lead them to do? Since the effect was outside the knowledge of ordinary jurors, evidence was
permitted by a psychiatrist with the relevant expertise in this area to adduce from the cards
themselves what their effect on a child would be. But the court cautioned that the evidence must not
be extended to ask whether these cards would tend to deprave and corrupt the young - that is for the
justice or jury to decide. In DPP v. Jordan 69 it was stated that it was for the jury alone to decide
whether the article would deprave or corrupt. The jury cannot be told by psychologist or any one else
what the effect of the material on normal mind may be. If it were otherwise, what would be the point of
swearing in a jury to decide something what has already been decided.
Each work must be examined by itself and a comparison with other works may not improve the quality
of a book which is indecent or obscene.70

4.  This ground would authorise restrictions upon publications as well as

cinematograph,--the standards in the case of films being similar to those for publications;
but in the case of films, pre-censorship is permissible.71
Effect on readers

4I.  It is not the intention of the writer but the effect on the readers, which
constitutes the test of obscenity,72viz., whether the tendency of the matter in question is
to deprave and corrupt those whose minds are open to such immoral influences, and
into whose hands a publication must be taken of this sort may fall. 73

4II.  In determining the effect, the class of persons who are likely to read such
publication must be taken into consideration.74
But the label on a book that it was for the benefit of married persons would not be enough if the cheap
price and easy availability in the market makes it likely to fall into the hands of young people. 75
But, in determining the effect of the offending publication, the Court is not to consider the effect on an
isolated reader, but the 'class' of readers into whose hands the book is likely to fall. 76
Contemporary national moral standard

2V.  In determining the effect of the offending publication, the Court is to have
regard to the moral standard of the contemporary society, 77 which, in India, is fast
changing and the young and the adolescent are having available to them a large mass
of literature which have a content of sex and romance. 78 Having regard to this changing
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standard, therefore, the Court is to determine whether the offending publication, read as
a whole, has the tendency of rousing scret sexual desire in the adolescent youth to
whom it would be available.79
An article cannot be considered obscene by itself, it can only be so in relation to its likely readers. 80 In
R v. Calder & Boyars Ltd .,81 the Court said: "Likely person cannot mean only one person or
necessarily a majority of persons or even the average recipient of the material or only most likely, but
must include all other likely persons whatever be their age, sex, education, characteristics, etc.
Persons who may be excluded are negligible number (but which cannot be determined) and those
unlikely to be involved. In DPP v. White ,82 not only middle aged men but any others who are likely to
purchase materials from the book shop were to be included. Thus, unless it can be proved that only
one class of individuals was involved, all other classes of likely persons must be taken into account. It
may be the case that if only one likely class is considered out of many, the significant proportion may
be negligible and even considering the other classes, who may also by themselves constitute a
negligible number, but added together may amount to a significant proportion for the purpose of
successful prosecution.
If the amount of persons who purchase the book is more than merely negligible, then, provided there
are some other likely persons involved in the purchase, the offence is made out. However, this is not a
general rule and will vary according to the different character of the particular book. It is not necessary
to prove that anyone was depraved and corrupted by reading or seeing the articles. The expression
"deprave and corrupt" is directed to the effect of the mind, to those who might be exposed to the
material. The fact that the article in question is sold in premises frequented only by persons who are
already depraved and who go there for the purpose of feeding their depravity, is not in itself sufficient
to negative obscenity. It may or may not be your experience and this is entirely a matter for you, that
reading and viewing pornographic magazines and video recording are not necessarily confined to the
purchases of these articles. They may be shown to others as a stimulus and spur to inducing a
particular frame of mind or inviting them to adopt a course of conduct similar to that kind illustrated by
the material.83
Some portions of the book may appear to be vulgar and readers of cultured and refined taste may feel
shocked and disgusted. Equally in some portions, the words used and description given may not
appear in proper taste. In some places there may have been an exhibition of bad taste leaving it to the
readers of experiences and maturity to draw the necessary inference. But the above may not be
sufficient to hold as 'obscene' unless it is sufficient to bring home to the adolescents any suggestion
which is depraving or lascivious ....If a reference to sex by itself in any novel is considered to be
obscene and not fit to be read by adolescents, adolescents will not be in a position to read any novel
and "will have to read books which are purely religious".84
Stories when published in different periodicals may not be found objectionable, but when they are
being compiled from the periodicals and published in book form, it may be adjudged as obscene. 85 In a
Delhi case, a book was written by a sociologist who carried research on call girls. There was reference
to sex. But the object was generally good in as much as she had carried out a research on the lives of
the calls girls and the men helping in the profession of call girls in order to serve the social purpose of
eradicating or minimising the evil of call girls pervading the society. It was declared that the book is not
obscene.86
Evidence of pondering to prurient interests in the creation, promotion or dissemination of material is
relevant in determining whether the material is obscene. 87
A passage in a "religious book" may become obscene if it finds a place in a journal intended for the
public. Where the consequences of the publication is likely to introduce in the minds of readers impure
thoughts and to insinuate revolting ideas not present in their minds before the publication, such
publication will amount to "obscene" publication.88
If it deals with the problems of life which the adolescent may have to face, and condemns the erring
party, a story cannot be held to be obscene merely because it deals with sex or indulges in bad taste,
unless it can be said that the objectionable passages would have "the effect of stimulating sex
impulses in the reader.89
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1.  It is for the Court to consider whether a particular publication is obscene,

having regard to the foregoing considerations:90
8. It is the offending passages, alleged by the prosecution, the obscenity of
which the Court is to determine. But in such determination, the Court has to take
in overall view of the entire work, 91 and find out whether the libidinous tendency or
the social purposes preponderates.92 In Chandrakant's case,93 the Court said:
"What we have to see is that whether a class, not an isolated case, into whose
hands the book, article or story falls suffer in their moral outlook or become
depraved by reading it or might have impure and lecherous thoughts aroused in
their minds. The charge of obscenity must therefore be judged from this aspect.
On the question of obscenity, the court has laid emphasis on the importance of art
to a value judgment by the censors. Art should be preserved and promoted in any
scheme of censorship, for, as the court observed "The artistic appeal or
presentation of an episode robs it of its vulgarity and harm. In short, what the
court means is that there is distinction between artistry and pornography".
8. In such consideration, a comparison with other publications is irrelevant, 94
because if the contents of a book are obscene, an examination of other books will
not change its quality.95 But evidence relating to other books may be admitted to
establish "the climate of literature", in order to assess the literary merit of the
article in question.96
5. In one case it was suggested that the opinion of men of literature or others
would not be relevant in determining the obscenity of an offending publication. 97
But that this is not wholly correct would be apparent from the observations of the
Supreme Court in another case.98 Where the defence is that the work has a
predominantly literary or scientific merit, the evidence of experts would naturally
be relevant, though not conclusive. This was pointed out in Chandrakant's case:99
14. "It is apparent that the question whether a particular article or story or book
is obsence or not does not altogether depend on oral evidence because it is the
duty of the Court to ascertain whether the book or story or any passage or
passages therein offend the provisions of s. 292 (I.P.C.). Even so as the question
of obscenity may have to be judged in the light of the claim that the work has a
predominant literary merit, it may be necessary if it is at all required, to rely to a
certain extent on the evidence and views of leading literateurs on that aspect
particuarly when the work is in a language with which the Court is not
conversant". (para. 4).100
3. It is not sex as such,101 but the manner it is portrayed,102 that makes a
publication obscene.

The form of expression1 is an important consideration to determine the effect of a publication, for the
same meaning may be couched in an obscene language, while it would be unobjectionable if couched
in a different language. Thus, a publication cannot be said to be obscene merely because it deals
frankly with sex matters, provided the language used is not such as to excite thoughts of lust. 2 Nor is
mere vulgarity necessarily obscene.3
The test of obscenity in England is now laid down in s. 1 of the Obscene Publication Act 1959, which,
in so far as it is material, reads as follows: "(1) For the purpose of this Act, an article shall be deemed
to be obscene, if its effect is, if taken as a whole, such as to tend to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to read it".
An article is obscene even though it is directed only to persons who are already depraved; it is
sufficient that it increases or maintains a state of corruption. 'Deprave' and 'corrupt' refer to the effect
of the article on the mind, including the emotions, and it is not necessary that any overt activity, such
as sexual act ivity, should result. Expert evidence is inadmissible on the issue whether an article tends
to deprave and corrupt, persons likely to read, see or hear the matter in question. The sole exception
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is where the likely readers are of a special class, such as very young children, in which case expert
evidence is admissible on the issue of tendency to deprave and corrupt members of that class. 4
Obscenity is not confined to that which has a tendency to corrupt sexual morals. The Act has been
applied to a book depicting the career of a drug addict. 5

A picture of a woman in the nude is not obscene unless there is something in the surrounding circumstances,
the pose and the suggestive element in the picture to excite impure thoughts in an ordinary or decent-minded
person.6 Treating of sex and nudity in art and literature cannot be regarded as evidence of obscenity without
something more.7

On the other hand,--

19i)  A fictitious biography, describing only a series of sexual adventures, which

the author had from his boyhood and which he enjoyed vastly, and ascribing similar
indulgences to highly placed members of society was held objectionable although pious
remarks about the ruinous effect of sexual vices were thrown in here and there in a
flippant manner.8
18ii)  A purely scientific description of the Sexual phenomena is not likely to excite
sexual desire. But a book containing pictures of various postures of sexual intercourse
with an explanatory note on the opposite page, is likely to do so. 9
14iii)  Lawrence's Lady Chatterly's Lover, has been condemned as obscene by
our Supreme Court on the following grounds:
9. Though written by an eminent literateur and though there is some poetry in
the writing, the predominant theme of the book is detailed description of the
sexual experiences of a frustrated wife with men other than her husband.
9. Whatever might have been the impact of this book on Western society, there
were no social gains to the Indian society from such a work, having regard to the
moral standard in India.10
15. But in R v. Penguin Books Ltd .,11 the same book Lady Chatterly's Lover
came for consideration. In that case, it was argued intrer alia that the book was
not obscene as described by s. 1 of Obscene Publication Act i.e., it is not likely to
deprave or corrupt others. The court held 'depravity' as meaning "to make morally
bad, to pervert, to debase, or corrupt morally". To 'corrupt' means 'to render
morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin
a good quality, to debase, to defile. Merely to be shocked or disgusted by its
contents was not enough. The jury returned after three hours deliberation with a
very verdict not guilty.

The circumstances in which the utterance is made thus assume a relevant consideration. In holding
their vulgar abuses uttered by the members of a Labour Union procession against the Ministers
cannot said to be calculated to undermine decency or morality, our Supreme Court has said:
"Indecent and vulgar though these slogans were as directed against the Transport Minister and the
Chief Minister of the Punjab Government, the utterance thereof by the appellants who were the
members of the procession protesting against the scheme of nationalised motor transport was hardly
calculated to undermine decency or morality, the strata or society from which the appellants came
being habituated to indulge freely in such vulgar abuses without any the slightest effect on the
persons hearing the same."12
(e) When obscenity and art are mixed: in order to protect the work, art must be so preponderating as
to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect
and may be overlooked.13 A balance should be maintained between freedom of speech and
expression and public decency and morality, but when the latter is substantially transgressed, the
former must give way.14 The test to adopt in our country (regard being had to our community mores) is
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that obscenity without a preponderating social purpose or profit cannot have the constitutional
protection of free speech and expression; and obscenity is dealing with sex in a manner appealing to
the carnal side of human nature.15 There is some differences between 'obscenity' and 'pornography' as
the latter denotes writings, pictures, etc., only intended to arouse sexual desire while the former may
include writing, etc., not intended to do so, but which have that tendency and both, of course, offend
against public decency and morals, but pornography is obscenity in a more aggravated form. 16
The words 'indecent' and 'obscene' convey the idea of offending against propriety, indecency being at
the lower and 'obscene' at the upper end of the scale. An indecent article is not necessarily 'obscene',
but an obscene article is almost certainly indecent.17For the common law crime of indecent exposure,
the test of indecency is, whether the act outraged the public decency. A mere wilful public exposure of
the person is not necessary indecent.18'Outraging Public Decency' is an act of such a lewd, obscene or
disgusting nature whether or not it tends to deprave and corrupt those who see it. "In public" means
more than one person must be able to see the act complained of, and if one person has proved to
have seen the act, others might have seen it, and that is sufficient. 19
VI. The Exception to s. 292, IPC gives absolute immunity to publications kept or used bona fide20 for
religious purposes. Apart from this, the section itself does not admit of any exception on the plea of
'public good'.
But it has been held that: in determining the meaning of 'obscene', the consideration of public good
comes in because of the competing public interests in the freedom of expression and the suppression
of obscenity, and the requirement of 'reasonableness' of the restriction. Anything having a
preponderating social value, such as a work of art or science, would be prima facie protected unless
obscenity is so gross that the interest of the public dictates the other way. 21 In Ajay Goswami v. UOI ,22
the Supreme Court said that moral values should not be allowed to be sacrificed in the guise of social
change or cultural assimilation. In that case, petitioner wanted the court to give certain direction so as
to safeguard the interest of minors, petitioners relied on certain photographs published in various
newspapers to submit those photographs after reading the newspaper, the mind of children will
certainly wander to an area which the author might not have conceived. Court while dismissing the
petition said that these pictures published in newspapers had been published with intent to inform the
readers of the current entertainment news from around the world and India and these newspapers
seek to provide a wholesome reading experience offering current affairs, sports, politics as well as
entertainment news to keep the readers abreast of all latest happenings in the world. The pictures
should not be viewed in isolation rather they have to be read with the news reports next to them. In
such cases, the courts will be reluctant to pass any preventive order from publication and if any
individual is affected by such photograph, his remedy is elsewhere. Court also said that any ban on
publishing of certain news pieces or pictures would fetter the independence of free press which is one
of the hallmarks of our democratic set-up.
Where art and obscenity are mixed up, it is to be determined which element is preponderating, and
the impact on the society should be judged by our national standards.
In short, in discharging this function, the Court should maintain a balance between freedom of
expression and public decency or morality, and the former must give way only when the latter is
substantially transgressed.23
The context of a publication becomes important from this standpoint:

20i)  Intimate illustrations in photographs or description of the sex organs, though

in a sense immodest, are not considered obscene it included in books on medical
science.24 An article cannot be considered as obscene by itself, it can only be so in
relation to its "likely readers".25
A publication which causes the reader or viewer to feel revulsion, horror or disgust may
not constitute obscene material if the result is that the recipient of this information is so
revolted that it has the opposite effect and wholly discourages that person from
participating in those activities and therefore is unlikely to be depraved and corrupted. 26
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19ii)  A description of diseases with appropriate remedies, therefore, without

exciting sensuality, intended only for doctors and patients, is not obscene. 27
On the other hand,--

21i)  A publication describing illicit love for another's wife and selling at a low
price which places it within easy reach of all, is obscene inspite of the literary eminence
of the writer.28
20ii)  Though bona fide publication for religious purposes is excluded by the
Exception, a passage from a religious book may become obscene if it finds place in a
journal, intended for the general public.29
VII. Nor is the knowledge of the obscenity of the contents of the work on the part of the writer or
publisher or bookseller necessary for his liability under s. 292, I.P.C.; 30 but absence of knowledge may
be pleaded in mitigation of the sentence.31
VIII. The foregoing tests of obscenity are applicable to books, other publications and films, alike. 32
But in the case of films, pre-censorship is permissible.33[See post].
Can we have a standard for India?

4.  It is clear that the standard of morality which is acceptable to a State

Legislature is not necessarily binding on the Courts. The Bombay High Court 34 pointed
out that so long as drinking is not prohibited in all the States, it would be unreasonable to
hold that the mere commendation of a drink would constitute an encroachment upon
'morality' in the particular State which has a law of prohibition. The decision was right in
pointing out that the standard of morality under Art. 19(2) is a general one, pervading the
community, say, the people of India, as distinguished from a section thereof. 35 The
Supreme Court has referred to our 'national standard.'36
In the dissenting judgment in State of Punjab v. Divan Modern Breweries Ltd .,37
AGARWAL, J observed that society cannot condemn a business, when the same is
permitted by statutory enactments and it is for legislature to say as to the "morality" or
otherwise of a civilised society as to whether a particular business would be criminal in
nature. It was held that society would have a say in the matter which would have been
considered by a Court of law only under common law right and not when the rights and
obligations flow out of statutes operating the field. It was observed that judiciary cannot
cling on to age-old notions of any underlying philosophy behind interpretation. It has to
move with times. "When the nature of things changes, rules of law must change too".
This is a truism in that the legislature and, within limits, the Courts should change rules
to keep the law abreast of change. While interpreting changing social conditions, one
must take into consideration the flexibility in law. "The social conditions existing at the
time when the Constitution was made may be very different from the present conditions
and hence if we interpret the Constitution from the angle of limitation makers, we may
arrive at a completely out-dated and unrealistic view. Globalisation has brought a radical
change in the economic and social landscape of the country. Its impact on the
Constitution and constitutionalism is significant. As and when occasion arises, the
interface between globalisation and constitutionalism whether from economic
perspective or human rights perspective is required to be seriously gone into". In judging
as to whether a particular work is obscene, regard must be had to contemporary mores
and national standards. While the Supreme Court of India held the book "Lady
Chatterly's Lover"38 to be obscene, in England the publisher of the same book was
acquitted finding that the publication did not fall foul of obscenity test. This has heralded
as a turning point in the fight for literary freedom in UK. Perhaps "company mores and
standards" played a part in the Indian Supreme Court taking a different view from the
English jury. The test has become somewhat outdated in the context of the internet age
which has broken down the traditional barriers and made publication from across the
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globe available with the click of a mouse.39 The book "Lady Chatterly's Lover" was
approved in the UK40 and in USA41 but it has been condemned in India42 and in Japan.43 In
Ranjit D. Udeshi,44 the Supreme Court said: "Whatever might have been the impact of
this book in Western Society, there were no social gains to the Indian Society from such
a work, having regard to the moral standard in India". In Ajay Goswam's case,45 the
Supreme Court asked for itself "No doubt, we are not living in Gandhian era, but
certainly we have culture and respect for elders and some decorum and decency
towards children. Undoubtedly such kind of stuff is available freely in market, movies,
television, etc., but are the families and community environment really ready to accept it
in toto or are they passive receivers of the same without any control or check? Are these
articles really making our children morally healthy?" Then the court said: "Moral values
should not be allowed to be sacrificed in the guise of social change or cultural
assimilation".
But so far as the reasonableness of a law of prohibition is concerned, a different
perspective would be called for after the Constitution (42nd Amendment) Act, 1976.
Since the Directive Principles have practically been placed on a higher pedestal than the
Fundamental Rights, and any law implementing a Directive Principle is now immune
from attack on the ground of contravention of Art. 19, it must be held that drinking of
liquor, except for medicinal purposes (Art. 47) is contrary to the standard of morality or
decency in India, and, accordingly, it would be immaterial whether a few States have not
so far implemented the Directive in Art. 47; the law of the State which has implemented it
cannot be challenged on the ground of contravention of Art. 19, on the ground that there
is no national standard as to condemnation of intoxication.
5I.  But, outside the sphere of prohibition, the standard to be adopted by the
Courts is a national one for India and not regional standards.
But, with respect, the Author of this commentary is unable to agree with the Bombay decision that "the
morality referred to in Art. 19(2)... is a morality which is accepted by all the world"; because, owing to
ethnic, cultural and even physiological differences, it is not possible to formulate a universal standard
of morality even as regards the basic question of representation of the sex act, as the
pronouncements on Lady Chatterley's Lover by the Courts of different countries46 have demonstrated
(see below). An Indian Court should not, therefore, be too much oppressed by English or American
decisions as to what is 'moral' or 'immoral'.47
As the author of this commentary has already said (see ante), the notions of morality vary from
country to country and from age to age48 and the world has not yet been able to settle any common
code of morality.49 The reason is obvious, viz., that, like all other social ideas, ethical ideas are largely
shaped or influenced by the exigencies of a particular society. 50 Thus, nudism on the sea beach may
not be objectionable in a country where naked sun-bath is necessary in order to combat consumption
as a national danger; but it need not necessarily be so in a country where sunshine, instead of being a
rare commodity, is superabundant and protection from it is necessary in the interests of health. Nor is
it beneficial to civilisation as such that the same standard should be followed, once it is conceded that
variety is essential for progress of the world as a whole. Different approaches to solve human
problems would be impossible, if identical formulae were to be applied. From the standpoint of political
philosophy, too, self-Government becomes pro tanto meaningless if no attempt is made to harmonise
legal rules of conduct with the cultural heritage of the people to whom they are addressed.
The Japanese view
And this is why while leading Judges of the American Supreme Court51 refuse to find anything obscene
in D.H. Lawrence's Lady Chatterley's Lover, the same book has been condemned in unmistakable
terms by the Japanese, Supreme Court,52in tune with the foregoing observations made in Art. 19(2),
that the interests of public welfare in this respect in the Eastern Hemisphere may not be exactly
identical with those in the West. The Japanese Supreme Court has held that notwithstanding the fact
that the book "has been valued considerably in English literary circles" as "a work of art", there, were
twelve passages in the book which described the sex act in a manner "too bold, detailed and
realistic".53
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The following passage from the judgment of CHIEF JUSTICE TANAK,54 though not quite in conformity
with Western ideas, should appeal to Indian Courts, in view of the similarity of social and philosophical
ideas in the two Asian countries:

"The social concept regarding sex is not the same depending on time and place; and even in the same society,
it changes from time to time... However, in spite of the fact that the social concept concerning sex is
undergoing changes, it cannot be denied that there still exists in any society a demarcation which cannot be
overstepped and that that demarcation is still being honoured by the general public. This limitation is the non-
public nature of the sex act... Even if it is admitted for the purpose of argument that the ethical sense of the
mass of the people has become paralysed to the extent that they fail to recognise what is truly obscene as
obscene, the Court is invested with the duty of protecting society from moral degeneration, in accordance with
the criterion set forth by the social concept which is the ideal of humanity possessed of wholesome and
virtuous minds. In final analysis, law and the judiciary do not necessarily conform to social realities at all times;
they must approach social pathological phenomena with a critical attitude and perform the role of a clinical
doctor."55

The American view

But, conceding that the Courts have the duty to protect the social concept concerning the sex act, the
further question remains: whose concept constitutes the 'social concept'--the majority or the monority,
of the initiated or the uninitiated? According to the American Supreme Court, 56 the doctrine that the
Legislature cannot suppress the views of the minority merely because it is not shared by the majority
would also extend to the present sphere, namely to determine what is moral or immoral. The majority
judgment, delivered by JUSTICE STEWART,57 observes:

"What New York has done, therefore, is to prevent the exhibition of a motion picture because the picture
advocates an idea--that adultery under certain circumstances may be proper behaviour. Yet the First
Amendment's basic guarantee is of freedom to advocate ideas.... It is contended that the State's action was
justified because the motion picture attractively portrays a relationship which is contrary to the moral
standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what is it that
the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or
shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than
advocacy of socialism or the single tax".58

The long and short of it is this, that according to the American Supreme Court, the State has no right
to suppress the advocacy of adultery even though the majority of the people would condemn such
advocacy as immoral.
CHIEF JUSTICE TANAKA,59on the other hand, entertains no apprehension that in act ing against the
prevailing popular notions, the Court was transgressing its judicial functions:

"The criteria of the Court in making adjudication is its conscience, that is, the social concept generally
accepted by society. This social concept is not a conglomeration of individual perceptions, nor is it its average
standard, but is a collective conscience of the society which transcends far above the individual perceptions,
and this collective conscience cannot be negated by the fact that some persons as individuals happen to
maintain contrary opinions.... In this instance the fact that the Judges are required to make determination
according to their conscience as to what constitutes social justice is no different from their duty in rendering
interpretation regarding any law."60

The Indian view

In the author's opinion, the Court can discover the social concept only by ascertaining the views of the
right-thinking member of society generally,61 whether they constitute the majority or the minority. If the
Court does not feel any diffidence in the matter of ascertaining the views of the right-thinking section
of the community, in the matter of determining what is 'defamatory', 62 it should not entertain any
diffidence in the matter of determining what is indecent or immoral.
It is gratifying to note that since publication of the foregoing comments of the Author Art. 19(2) of the
Commentary, Lady Chatterley's Lover has been condemned as obscene by our Supreme Court,63
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because it is contrary to the Indian moral standard. In Ajay Goswami v. UOI ,64 the Supreme Court said
that the test as prescribed in Lady Chatterly's case65 has become outdated "in the context of internet
age which has broken all traditional barriers and made publication from across the globe available with
the click of a mouse".
The question of 'current' or contemporary standard
There is a fair consensus on the proposition that what is obscene or indecent is to be determined on
the touchstone of the current standard of morality in a society or community. The question is--how is
this standard to be ascertained. In the U.K., it is settled that on this point the decision shall be not that
of the Judge, but that of the Jury 66 --
"Who can be treated to maintain the corporate good sense of the community and to discern attacks on
values that must be preserved."67
India
Difficulty arises in countries like in India where there is no jury trial in such cases and the Judge
combines in himself the function of the jury as well. But even in such cases, the Judge should bear in
mind--

19a)  That the standard of indecency is not his personal views or even that of a
section of ultra-modern permissive society, but what 'offends the modesty of an ordinary
person'68(which standard is provided under the English Post Office Act). It is needless to
point out that the jury represents the ordinary person. It follows that the even evidence of
experts is not admissible to decide whether a publication is obscene or indecent. 69 In
Director General, Directorate of Doordarshan v. Anand Patwardhan ,70 the Supreme
Court laid down the broad principles to determine or to judge obscenity--(a) whether the
average person, applying contemporary community standards would find that the work,
taken as a whole, appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the
applicable State law; and (c) whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value. In order for the State to justify prohibition of a
particular expression of opinion, it must be able to show that its act ion was caused by
something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany any unpopular viewpoint.71
Expert evidence is admissible only to support the plea in defence, viz., that though otherwise offense,
the publication is for the public good, being in the interests of science, literature, art, learning or the
like.72
A decision must first be made on the obscenity and only then the question of public good will fall for
decision.73 Expert evidence of therapeutic qualities sexually explicit material held inadmissible as
evidence going to the issue of obscenity.74 Evidence relating to other books may be admitted to
establish "the climate of literature" in order to assess the literacy merit of the article in question. 75
In deciding whether a publication absorbed with sex relationship of men and women and purporting to
describe the contemporary life, is an obscene libel charge brought about in the society should be
reckoned into consideration. While judging the character of obscene publications or the picture, the
Court must consider the effect that it would produce on the mind of an average person in whose
hands it is likely to fall. While so judging, neither a man of wide culture or superb character nor a
person depraved mentally only should be taken as a reader of such publication. The standard of
readers is neither one with exceptional susceptibilities nor one without any susceptibility whatsoever. 76
Secondly, in discovering the contemporary moral standard, a judge should not overlook the ethical
past of the nation or country to which he belongs, because, that constitutes the foundation of the
'national standard'.
This is the reason why while Lady Chatterley's Lover could be approved in the U.K.,77 and the U.S.A.,78
it has been condemned as obscene in India79 and Japan.80 It is the cultural heritage which
 141

differentiates the Eastern hemisphere from the Western. This was made clear by the Indian Supreme
Court in the Maharashtra case'81
"Whatever might have been the impact of this book on Western society, there were no social gains to
the Indian society from such a work, having regard to the moral standard in India." (para. 29). 82
There are certain discordant notes in the Supreme Court judgments in criminal cases, such as
Chandrakant v. State of Maharashtra 83 or Samaresh v. Amal .84 But in those cases,85 the Court was
confined to the interpretation of the word 'obscene' in s. 292, I.P.C., under which the appellant had
been prosecuted.
But the question in the present context is not whether a person can be convicted of the offence of
'obscenity' as defined in the Penal Code, upon a given material, but whether the Legislature can enact
other laws imposing restrictions on the wider ground of public decency, say, for controlling indecent
advertisements or publication of horror comics, inciting violence. The answer is definitely in the
affirmative, since Art. 19(2) of the Indian Constitution uses both expressions 'decency' or 'morality' (in
the alternative). Nor can it be overlooked that legislation in this behalf has already been undertaken in
the U.K.86and India.87 A material may be indecent for being 'repulsive', 'filthy' or 'loathsome', though not
lewd.88 A thing which is merely vulgar may not be 'obscene';89 but it may still be 'indecent.'
It is also gratifying to note that many of the foregoing views of the Author in favour of a case for
liberalisation of the concept of morality (expressed in Art. 19) now find support from the observations
of the highest tribunal of England,--the traditionally conservative land, 90 at least in juristic matters. In
Shaw v. Director of Public Prosecutions ,91 the House of Lords, speaking through the LORD
CHANCELLOR, LORD SIMONDS, upheld the conviction of a person of the offence of 'conspiracy to
corrupt public morals' though there was no such offence on the statute book and though there was not
a single precedent for conviction for such offence in common law. In the instant case, the charge of
'conspiracy to corrupt public morals' was that the Appellant published a Directory containing the
advertisement of prostitutes and exhibition of and inducement to take part in sexual acts etc., and thus
conspired with the advertisers to corrupt the morals of the youth and other subjects. Repelling the
contention that there was no authority in law for such an offence, LORD SIMONDS observed--
"In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual
power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety
and order but also the moral welfare of the State, and that it is their duty to guard it against attacks
which may be the more insidious because they are novel and unprepared for. That is the board head
(call it public policy if you wish) within which the present indictment falls. It matters little what label is
given to the offending act . To one of your Lordships it may appear an affront to public decency, to
another considering that it may succeed in its obvious intention of provoking libidinous desires, it will
seem a corruption of public morals. Yet others may deem it aptly described as the creation of a public
mischief or the undermining of moral conduct.
The same act will not in all ages be regarded in the same way. The law must be related to the
changing standards of life, not yielding to every shifting popular will but having regard to the
fundamental assessments of human values and the purposes of society. When Lord Mansfied... said
that the Court of King's Bench was the custos morum of the people... he was asserting, as I now
assert, that there is in that court a residual power, where no statute has yet intervened to supersede
the common law, to superintend those offences which are prejudicial to the public welfare. Such
occasions will be rare, for Parliament has not been slow to legislate when attention has been
sufficiently aroused. But gaps remain and will always remain since no one can foresee in every way in
which the wickedness of man may disrupt the order of society."92
In Knuller Ltd. v. DPP ,93 the House of Lords reaffirmed the decision in Shaw's case.94 In that case, the
appellant had published a magazine which contained advertisements by nude homosexuals seeking
to meet other homosexuals. Majority of the House of Lords held that at common law it was an offence
to outrage public decency and also to conspire to outrage public decency and that such a conspiracy
could take the form of an agreement to insert outrageously indecent matters on the inside pages of a
magazine sold in public.95
 142

Thus it is that four members of the highest tribunal of England punished an act because it was in their
opinion likely to corrupt public morals, though a fifth colleague of theirs (Lord Reid) was equally
emphatic that "there is no such general offence known to the law as conspiracy to corrupt public
morals" and that since prostitution was not in itself an offence, if two or more persons combined to
issue an invitation to resort to prostitution, they could not be held to have committed an offence.
Horror comics
The view of the Author that the interests of public welfare might demand restrictions being imposed
upon the freedom of expression on the grounds of decency or morality, in a wider sphere than that
covered by the traditional notion relating to obscenity, and that the wide expression "in the interests of
decency or morality" admitted of such restrictions as constitutionally permissible, has been justified by
subsequent legislation in England and in India relating to 'horror comics',--a novel problem which has
stirred the minds of publicists in advanced countries in recent years. It is the problem of literature
which seeks to glorify acts of violence or cruelty in such manner, as is likely to attract young readers
and to corrupt their minds.
U.K.
This problem has been sought to he combated in England and India by legislation. Thus, in England,
the Children and Young Persons (Harmful Publications) Act, 1955, penalises the publication of
'harmful publications', which mean publications which consist of stories, with or without the addition of
any written matter, portraying--"(a) the commission of crimes; or (b) act s of violence or cruelty; or (c)
incidents of a repulsive or horrible nature, in such a way that the work as a whole would tend to
corrupt a child or young person in whose hands it might fall (whether by inciting or encouraging him to
commit crimes or acts of violence or cruelty or in any other way whatsoever)".
India
In India, similarly, the Young Persons (Harmful Publications) Act, 1956, has been enacted to prohibit
the dissemination of pictorial and other publication containing stories of glorification of crime, violence
and vice, which are likely to encourage anti-social tendencies among children and exert a harmful
influence on young, persons. Of course, Cls. (i) and (ii) of s. 2 of this Act are relatable to 'incitement to
an offence' and 'public order' but Cl. (iii)-- "incidents of a repulsive or horrible nature, in such a way
that the publication as a whole would tend to corrupt a young person into whose friends it may fall", is
obviously relatable to public morals.96
U.S.A.
As has been observed by the American Supreme Court,97 the State has an interest (independent from
the interest of parents) in securing the well-being of its youth, which includes their ethical and moral
development, and in safeguarding them from abuses. Hence, anything which 'depraves' the youth
may be condemned, in the interests of 'morality'.98
"In this context, the observations of JUSTICE JACKSON in Musser v. Utah 99 may be referred to by
way of demonstrating the width of the word 'morality':
"In some States the phrase 'injurious to public morals' would be likely to punish act s which it would
not punish in others because of the varying policies on such matters as use of cigarettes or liquor and
the permissibity of gambling".100
Nudism and 'live entertainment'
U.S.A.
A disconcerting feature of American Constitutional law is that the Supreme Court has, in recent years,
been upholding the freedom of nude dancing and display of sex, in certain cases.
It has been held that nudity as such is not outside the protection of the First Amendment, 101 and that
unless a film or other live entertainment displays sexual conduct 'in a patently offensive way', its
prohibition would be unconstitutional.102 Hence, nude dancing or live display of sex as such cannot be
prohibited by the State.103
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But it was held that nude dancing is expressive conduct within the outer limits of the First
Amendment... though only marginally so. While holding that nude dancing could be prohibited, it was
observed that the impugned statute stemmed from the traditional police power of the States (to protect
the public health, safety, welfare and morals) and the prohibition of public indecency... Furthers a
substantial governmental interest in protecting order and morality... It was further observed that the
right to nude dancing was unrelated to the suppression of free expression". 104 The Court also said:
"While it might be argued that almost any kind of conduct could be redefined as a form of expression,
such a limitless view is rejected by court. Emphasising the distinction between speech and conduct,
learned Judge explained that the statute punished being nude in public, not nude dancing. The
proscription on nudity, therefore, was not aimed at suppressing communication but had only an
incidental effect on expression. The difference was between "a scant amount of clothing" and none at
all, not dancing versus no dancing". Another learned Judge said while upholding the State law, that
the same should be upheld not because it survives some lower level of First Amendment scrutiny but
because as a general law regulating conduct and not specifically directed at expression it is not
subject of First Amendment at all. Court also sustained the law on the ground that State's substantial
interest in combating the secondary effect of adult entertainment establishments in preventing
prostitution, sexual assault and other criminal activities.
Of course, the State may restrict such display in public places or in particular areas, 105 such as liquor
bars:106 but a total prohibition of nude dancing or live entertainment anywhere within a borough has
been annulled as unconstitutional.107 In Erznoznick v. City of Jacksonville ,108 the Court invalidated an
ordinance forbidding drive-in theatres from showing film containing nudity when the screen was visible
to the general public. In Renton v. Playtime Theatre ,109 on the other hand, the Court upheld a zoning
ordinance that prohibited adult motion picture theatre from locating within thousand feet of any
residential zone, church, park or school. From the above decision, it is clear that it suggests that
localities can regulate sexually oriented expression, based on its content, as long as the regulation
does not altogether suppress the expression and is closely related to a legitimate Governmental
objective.
In New York State Liquor Authority v. Bellanca ,110 question raised was about the power of State to
prohibit topless dancing in an establishment licensed by State to serve liquor. It was claimed that the
prohibition was violative of the US Constitution. The court rejected the contention and declared the law
valid.111
The foregoing discussion shows that the malady from which American society suffers is
'permissiveness' and that to hold that a live entertainment might be protected by the First Amendment
is a judicial connivance of such blatant abuse of that precious freedom. We, in India, would prefer to
listen to the dissenting voice of BURGER C.J., in the Schad case.112
"Citizens should be free to choose to shape their community so that it embodies their conception of
the 'decent' life..... That a community is willing to tolerate such a commercial use asa convenience
store, a gas station...does not compel it also to tolerate every other commercial use, including
pornography pedlars and live nude shows ......
To say that there is a First Amendment right to impose every form of expression on every community,
including the kind of 'expression' involved here, is sheer nonsense. To invoke the First Amendment to
protect the act ivity, involved in this case trivializes and demeans that great Amendment."
India
There is little doubt that the saner section of the Indian public would condemn nudism on the screen or
the stage as indecent and also hold it punishable as an obscene act under s. 294 (a) IPC or 3(c) of
the Dramatic Performances Act , 1876 (see below).
The history of civilisation shows that while nudism prevailed in a state of nature, the human race
stepped into civilisation by covering their bodies. The Western Culture has taken the reverse process
by resorting to exhibitionism. Indians would prefer to stick to their ideal of inhibitionism so long as
Western-educated bacchanalians do not get the upper hand in the society, the legislature and the
Judiciary.
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'Existing laws'.--Section s. 292-94 of the Indian Penal Code prohibit the sale or distribution of
obscene literature and the doing of obscene acts or the uttering or singing of obscene songs, etc., in
public places (in Art. 19(2)-(6)). Works of religion such as sculpture, painting, etc., in temples are
exceptions to the above law. Sections 20-23 of the Post Office Act (VI) of 1898, prohibit the
transmission by post of obscene matter. Section 3 (c) of the Dramatic Performances Act (XIX) of
1876, provides for the prohibition of any dramatic performance which is 'likely to deprave and corrupt'
persons present at the performance.
As regards beauty contest, it was observed that it becomes objectionable performance if it is grossly
indecent, scurrilous or obscene or intended for blackmailing women. It would offend Arts.14, 21 and
51-A of the Constitution and International Covenants accepted by UNO in addition to violation of
human rights.113
In regard to prohibition of cabaret dance, Kerala High Court held that what the Court is concerned with
is the annoyance on the basis of the obscenity which is likely to corrupt those whose minds are open
to such immoral influences and the consequent damage to public order, decency or morality which
should be the concern of the State to prevent. It was held that reasonable restriction on consideration
of public order, decency or morality are intended in the interest of general public and as such in the
interest of public decency and morality. If a particular cabaret dance is against that interest, and is
capable of depraving and corrupting those whose minds are open to such immoral influences, it will be
against public interest and as such objectionable. The intent of society will have to tilt the scales in
such cases. Considerations of possible damage to the society and promotion of public decency and
morality will have to outweigh considerations of the interest of those who are running the show for
profit or those who conduct the performance for livelihood. 114 But in an earlier case, it was held that the
performance in public places like hotels and restaurants of cabaret dance devoid of nudity and
obscenity judged according to the standards of our country is permissible and is not liable to be
prohibited. It was held there could possibly be no serious objection to the hotels and restaurants
entertaining their customers with music and dance so long as it does not become obscene
performance or a performance of nudity. In fact 'decency' and 'morality' themselves are terms of
variable contents. The Court's concern and anxiety should only be to prevent the exhibition at public
places of performance, which are immodest and indecent judged by the standards of our country and
of our times.115 When there is no nude dancing or that nudity was on display while dancing, and there
is no violation of licensing condition, the State cannot prohibit dancing in hotels. The mere allegation
that dance bars have become pick-up points for prostitution would not by itself be an answer to take
away the right of livelihood. It was further held that a prohibition does not become reasonable merely
because it seeks to implement the Directive Principles of State Policy. 116
In R v. Quinn ,1 the appellants were proprietors of clubs who were charged with keeping disorderly
house, which arose out of matters that occurred in the course of "striptease performances". The Court
of Criminal Appeal held that as regards the cases in which indecent performances or exhibits are
alleged, a disorderly house is a house conducted contrary to law and good order, in that, matters
performed or exhibited are of such a character that their performance or exhibition in a place of
common resort amounts to an outrage of public decency or tends to corrupt or deprave the dignity of
women and public morality. Therefore, in the present circumstances, the State, in the interest of
dignity of women, maintenance of public order and morality has banned dances in all such
establishments where a regulation is virtually impossible. Since the obscene and vulgar dancing is a
res extra commercium, the establishments cannot claim a fundamental right to conduct dance
therein.2
Legislation by Parliament

22i)  Parliament has enacted the Cinematograph Act (XXXVII of 1952),

providing for sanctioning of cinematograph films for exhibition,--repealing the
Cinematograph Act , 1918, to that extent.

21ii)  The Young Persons (Harmful Publications) Act (93 of 1956) has been
enacted to prohibit the production and dissemination of pictorial and other publications
 145

continuing stories of the glorification of crime, violence and vice, known as "horror
comics", which are likely to encourage antisocial tendencies among children and exert a
harmful influence on young persons (see above).

15iii)  The Drugs and Magic Remedies (Objectionable Advertisements) Act of

1954, prohibits objectionable advertisements relating, inter alia, to the magic cure of
sexual ailments.

11iv)  See also Sections 11 of the Customs Act , 1962, in Art. 19(2)-(6), ante.3

10v)  The Indecent Representation of Women (Prohibition) Act, 1986--a legislation

intended to prohibit indecent representation of women through advertisements or in
publication, writings, paintings, figures or in any other matter and for matters connected
therewith and "indecent representation" has been defined "as the depiction in any
manner of the figure of a woman, her form or body or any part thereof in such a way as
to have the effect of being indecent or derogatory to or denigrating women, or is likely to
deprave, corrupt or injure the public morality or morals".
VI. Contempt of Court
U.S.A.
(A) U.S.A.--In punishing contempt of Court, the State has to secure a balance between two equally
important principles--need for freedom of expression and that for the independence and dignity of the
judiciary and the due administration of justice.4
The American Supreme Court has applied the 'clear and present danger' test (see ante), in this sphere
also. It has held that punishment for contempt of court is constitutionally permissible only, 5 where it
constitutes--

20a)  An imminent danger to the administrations of justice according to the facts

and circumstances involved in the particular case,6i.e.,
"where the adjudicatory process may be hampered or (the court) hindered in its calm,
detached, and fearless duty on the basis of what has been submitted in court."7
In Craig v. Harney ,8 the court said: "The vehemence of language used is not alone the
measure of the power to punish the contempt. The fires which it kindles must constitute
an imminent danger, not merely a likely threat, to the administration of justice. The
danger must not be remote or even probable, it must immediately imperil".
In the dissenting opinion by JUSTICE FRANKFURTER in Bridges v. California ,9 it was
held "A trial is not a free trade in ideas... But increasingly the court has recognised that
publicity may in fact help achieve a fair trial by encouraging individuals with relevant
information to come forward; by deterring perjury though public scrutiny, by exposing or
preventing wrong doing by the prosecution, defence, or government; by reducing crime
through public disapproval of it; and by promoting public discussion of important issues".
21b)  An interference with the judicial proceedings in the immediate presence of
the Court.10
15c)  Comments on a pending proceeding which would tend to provoke public
resistance to the order sought for in the proceeding, 11 or to influence the Judge and the
Jury before they have made up their minds,12e.g., publicising by television a pre-trial
investigation against the accused.13
On the other hand,--

23i)  Mere criticism of a Judge is not punishable, however untrue, 14 deliberate,15

unfair or intemperate the criticism may be. In Craig v. Harney ,17 it was held that law of
16

contempt is not made for the protection of judges who may be sensitive to the winds of
 146

public opinion. Judges are supposed to be men of fortitude, able to thrive in a hard
climate because the Judges are elected.
"The law of contempt is not made for the protection of judges who may be sensitive to
the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in
a hardy climate."18 In the book Law of Contempt of Court19 which read thus:- "These
decisions are American. They might not fit the environment of other lands, where judges
are more aloof from the community and the Bar, that they are in America where no judge
ever runs for public office".
In Conway v. Johan ,20 the petitioners were convicted of constructive criminal contempt.
The Supreme Court of America set aside their conviction and JUSTICE DOUGLAS said:
"This was strong language, intemperate language, and we assume, an unfair criticism.
But a Judge may not hold in contempt one who ventures to publish anything that tends
to make him unpopular or to belittle him.21 The vehemence of the language used is not
alone the measure of the power to punish for contempt. The fire which it kindles must
constitute an imminent, not merely a likely threat to the administration of justice. The
danger must not be remote or even probable; it must immediately imperil. But the law of
contempt is not made for the protection of Judges who may be sensitive to the winds of
public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy
climate. Conceivably a campaign could be so managed and so aimed at the sensibilities
of a particular Judge and the matter pending before him as to cross the forbidden line".
In the same case, JUSTICE MURPHY, in his concurring opinion, said:
"A free press lies at the heart of our democracy and its preservation is essential to the
survival of liberty. Any inroad made upon the constitutional protection of a free press
tends to undermine the freedom of all men to print and to read the truth.
In my view, the Constitution forbids a Judge from summarily punishing a newspaper
editor for printing an unjust attack upon him or his method of dispensing justice. The only
possible exception is in the rare instance where the attack might reasonably cause a real
impediment to the administration of justice. Unscrupulous and vindictive criticism of the
judiciary is regrettable. But Judges must not retaliate by a summary suppression of such
criticism for they are bound by the command of the First Amendment. Any summary
suppression of unjust criticism carries with it an ominous threat of summary suppression
of all criticism. It is to avoid that threat that the First Amendment, as I view it, outlaws the
summary contempt method of suppression.
Silence and a steady devotion to duty are the best answers to irresponsible criticism and
those Judges who feel the need for giving a more visible demonstration of their feelings
may take advantage of various laws passed for that purpose, which do not impinge upon
a free press. The liberties guaranteed by the First Amendment, however, are too highly
prized to be subject to the hazards of summary contempt procedure."
In Harry Bridges v. State of California ,22 the facts were the petitioner, who was an office
bearer of a Union, sent a telegram in respect of a pending case. In the telegram, he
referred to the Judge's decision as outrageous and it was also stated that the attempted
enforcement of it would tie up Port of Los Angeles and involve the entire Pacific Coast. It
was concluded with the announcement that C.I.O. Union representing some 12,000
members did not intend to allow State's courts to override the majority vote of members
in choosing its officers and representatives and to override the national labour relations
vote. He was convicted by the trial court but his conviction was set aside by the
Supreme Court.
JUSTICE REID said:
"Free discussion of the problems of society is a cardinal principle of Americanism - a
principle which all are zealous to preserve. Discussion that follows the termination of a
 147

case may be inadequate to emphasize the danger to public welfare of supposedly

wrongful judicial conduct. It does not follow that public comment of every character upon
pending trials or legal proceedings may be as free as a similar comment after complete
disposal of the litigation. Between the extremes there are areas of discussion which an
understanding writer will appraise in the light of the effect on himself and on the public of
creating a clear and present danger to fair and orderly judicial administration. Courts
must have power to protect the interest of prisoners and litigants before them from
unseemly efforts to pervert judicial action. In the borderline instances where it is difficult
to say upon which side the alleged offence falls, we think the specific freedom of public
comment should weigh heavily against a possible tendency to influence pending cases.
Freedom of discussion should be given the widest range compatible with the essential
requirement of the fair and orderly administration of justice."
In this respect, the American law differs from the English and the Indian and the
difference in attitude is primarily due to the fact that Judges, in the U.S.A., are not even
supposed to be detached from public life as in England or India. 23
22ii)  Even criticism of a pending proceeding has been allowed where the
proceeding concerned a matter of public interest such as a labour dispute and "no
possibility of the criticism causing the unfair disposition of the pending litigation was
shown"24 or where the criticism imputed a general attitude of courts towards persons
charged with crime.25 That case which is related to a publication in newspaper Miami
Herald, learned Judge said that the door of permissible comment should not be closed.
Without a free press there can be no society, a free press is vital for democracy because
freedom gives it power.
The American attitude towards press comments on pending trials thus differs seriously from the
English, and American Courts have refused to curtail freedom of the press in this respect, even though
instances there are where a new trial had to be ordered owing to a hostile atmosphere having been
created by unrestrained press publicity on the pending charges. 26 As already stated, in the US only in
cases where clear and present danger doctrine is applied, contempt proceedings will be taken against
press. This has resulted in disablement of trial judges from dealing with interference by the press with
the trial process. In a highly published trial, it is not uncommon to find in that country prejudicial
influences outside the court-room being brought to bear on the jury with such force that the conclusion
is inescapable that these defendants were pre-judged as guilty and the trial was but a legal gesture to
register verdict already dictated by press and the public opinion which is generated. 27 In (1961)
Modern Law Review 248, it was stated: "There is much dissatisfaction in the United States that
existing efforts to resolve the conflict constitutes between a free press and impartial trial. Prejudicial
publicity is a serious threat to an accused right to an impartial trial." 28.
It is also to be noted that by a Federal statute, the power of Courts to punish for contempt summarily
is confined only to "misbehaviour of any person in their presence, or so near thereto as to obstruct the
administration of justice". In any other case, contempt of Court may be punished only by a criminal
indictment triable by a jury. In the case of contempt committed in the face of a Judge, summary
conviction would not offend 'due process' on account of the imminence of the danger; 29 but in other
cases it would be a serious inroad on the freedom of expression. 30
Constitutionality of Law of Contempt
U.K., India
(B) England.--If maintenance of democracy is the foundation for free speech, society is equally entitled
to regulate freedom of speech or expression by democratic act ion. Liberty of speech and expression
guaranteed under Art. 19(1)(a) brings within its ambit, the corresponding duty and responsibility and
puts limitation on the exercise of the liberty. The State has legitimate interest, therefore, to regulate the
freedom of speech and expression which liberty represents the limits of the duty of restraint on speech
or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to
dignity of person and of reputation. Nobody has a right to denigrate other's right to person or
reputation. Therefore, freedom of speech or expression is tolerated so long as it is not malicious or
 148

libelous, so that all attempts to foster and ensure orderly and peaceful public discussion or public good
should result from free speech in the discussion or public good should result from free speech in the
market place. If such speech or expression was untrue and so reckless as to its truth, the speaker or
the author does not get protection of the constitutional right. Freedom of speech and expression,
therefore, would be subject to Arts. 19(2), 129 and 215 of the Constitution, in relation to contempt of
Court, defamation or incitement to an offence, etc. It may, therefore, be subject to certain restrictions
but these shall only be such as are provided by law and are necessary for the respect of life and
reputation of others for the protection of national security or public order or of public health or morals.
Thus, liberty of speech and expression guaranteed by Art. 19(1)(a) carries within its ambit a
corresponding duty and responsibility which puts limitation on the exercise of that liberty. 31 Criticism of
judiciary will be treated as contempt only when it is made with ill-motive or where there is deliberate
attempt to run down the institution or an individual judge is targeted for extraneous reason. Ordinarily
court would not exercise its power of contempt to silence criticism unless criticism of judicial institution
transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate
attempt to denigrate the institution. Highlighting of certain irregularities in functioning of a tribunal and
wrong orders passed by a Bench comprising a particular member will not be criminal contempt. On
the other hand, it will be treated that the citizen has fulfilled his duty under Art. 51-A(h) of Constitution
of India .32 In Indirect Tax Practitioners' Assn. v. R.K. Jain ,33 the Supreme Court said that freedom of
speech and expression has always been considered as the most cherished right of every human
being. The courts have zealously guarded this most precious freedom of every human being. Fair
criticism of the system of administration of justice or functioning of the institution or authorities
entrusted with the task of deciding rights of parties gives an opportunity to the operators of the system
or institution to remedy the wrong and also bring about improvements. Such criticism cannot be
castigated as an attempt to scandalize or lower the authority of the court or other judicial institution or
as an attempt to interfere with the administration of justice except when such criticism is ill-motivated
or is construed as a deliberate attempt to run down the institution or an individual judge is targeted for
extraneous reason.34
In Narmada Bachao Andolan v. Union of India ,35 it was observed: "We wish to emphasise that under
the cover of freedom of speech and expression, no party can be given a licence to misrepresent the
proceedings and orders of the Court and deliberately paint an absolutely wrong and incomplete
picture which has the tendency to scandalise and bring it into disrepute and ridicule. Indeed freedom
of speech and expression is "life blood of democracy", but this freedom is subject to certain
qualification. An offence of scandalising the Court per se is one such qualification".
The expression "Contempt of Court" has not been defined in the Constitution, but in the absence of
such definition, it does not make the Contempt of Courts Act 1952 invalid as it has been well
recognised by Judicial Interpretation.36(But in the 1971 Act, Contempt of Court is given a separate
definition). In C.K. Daphtary v. O. P. Gupta ,37 it was held that the power to punish for contempt
administered by the Supreme Court under Art. 129 is reasonable under Art. 19(2). 38
The basic foundation of the English Law of contempt, which is followed in India, is based on the
decision in Rex v. Almon .39 It was observed: "It is not their (Judges) own cause, but the cause of the
public which they are vindicating at the instance of the public...and so if the seat of Justice abuses that
confidence and an impression is created in the public mind that the Judge is excitable indecorum and
insultive to party or counsel, then the confidence of the public is shaken in the administration of
justice... and whenever man's allegiance to the law is fundamentally shaken, it is the most fatal and
dangerous obstruction of justice and, in my opinion, calls out for a more rapid and immediate redress
than any obstruction whatsoever not for the sake of the judges as private individuals, but because
they are the channels by which the King's justice is conveyed to the people".
In Halsbury's Laws of England,40 'Contempt of Court' is defined thus: "Any act done or writing
published which is calculated to bring a court or a Judge into contempt or lower his authority or to
interfere with the due course of justice or a lawful process of court is contempt of court. Any episode in
the administration of justice may, however, be publicly or privately criticised, provided the criticism is
fair and temperate and made in good faith. The absence of any intention to refer to a court is a
material point in favour of a person alleged to be in contempt". A message of Senior Advocate for long
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practice criticising judiciary and suggesting corrective measures in Bar all for betterment of legal
system is not contempt.41 In Hari Singh Nagra v. Kapil Sibal ,42 the Supreme Court said that
scandalising in substance is an attack on individual Judges, or the court as a whole, with or without
referring in particular cases, casting unwarranted and defamatory aspersions upon the character or
the ability of the judges. Scandalising the court is a convenient way of describing a publication which,
although, it does not relate to any specific case either post or pending or any specific judge, is a
scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of court
and public confidence in the administration of justice.
The purpose and necessity of law of contempt was summarised by the Supreme Court thus: "Rule of
law" is the basic rule of governance of any civilised democratic polity. Our Constitutional scheme is
based upon the concept of rule of law which we have adopted and given to ourselves. Everyone,
whether individually or collectively is unquestionably under the supremacy of law. Whoever the person
may be, however high he or she is, no one is above the law notwithstanding how powerful and how
rich he or she may be. For achieving the establishment of rule of law, the Constitution has assigned
the special task to the judiciary in the country. It is only through the Courts that the rule of law unfolds
its contents and establishes its concept. For the judiciary to perform its duties and functions effectively
and true to the spirit with which it is sacredly entrusted, the dignity and authority of the Courts has to
be respected and protected at all costs. After more than half a century of independence, the judiciary
in the country is under constant threat of being endangered from within and without. The need of the
hour is to restore confidence amongst the people for the independence of the judiciary. Its impartiality
and the glory of law have to be maintained, protected and strengthened. The confidence in the courts
of justice which the people possess cannot, in any way, be allowed to be tarnished, diminished or
wiped out by contumacious behaviour of any person. The only weapon of protecting itself from the
onslaught to the institution is the long hand of contempt of court left in the armoury of judicial
repository which, when needed, can reach the neck however high or far away it may be. 43
It was held in Arundhathi Roys case, that no person can flout the mandate of law of respecting the
Courts for establishment of rule of law under the cloak of freedom of speech and expression
guaranteed under the Constitution. Such a freedom is subject to reasonable restrictions imposed by
any law. Where a provision, in the law, relating to contempt imposes reasonable restriction, no citizen
can take the liberty of scandalising the authority of the institution of judiciary. Freedom of speech and
expression, so far as they do not contravene the statutory limits as contained in the Contempt of
Courts Act , are to prevail without any hindrance. However, it must be remembered that the
maintenance of dignity of Courts is one of the cardinal principles of rule of law in a democratic set up
and any criticism of the judicial institution couched in language that apparently appears to be mere
criticism, but ultimately results in undermining the dignity of Courts cannot be permitted when found
having crossed the limits. The law of contempt has been enacted to secure public respect and
confidence in judicial process. If such confidence is shaken or broken, the confidence of the common
man in the institution of judiciary and democratic set up is likely to be eroded which, if not checked, is
sure to be disastrous for society itself".
Judiciary is the guardian of rule of law. If the judiciary is to perform its duties and functions effectively,
the dignity and authority of the court have to be respected and protected at all costs. It is for this
purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in
act s, whether inside or outside the courts, which tends to undermine their authority and bring them in
disrepute by scandalising them and obstructing them from discharging their duties without fear or
favour.44
The cornerstone of the contempt law is the accommodation of two constitutional values - The right to
free speech and the right to independent justice. The ignition of contempt action should be substantial
and mala fide interference with the fearless judicial act ion, not fair comment or trivial reflection on the
judicial process and personnel.45
Although criminal contempts of court may take a variety of forms, they all share a common
characteristic. They involve an interference with due administration of justice either in a particular case
or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not
the individual court or judge who is attempting to administer it. 46
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The law on this subject is and must be founded entirely on public policy. It is not there to prevent but to
protect private rights of parties to litigation or prosecution. It is there to prevent interference with the
administration of justice and it should be limited to what is reasonably necessary for that purpose.
Public policy generally requires a balancing of interest which may conflict. Freedom of speech should
not be limited to any greater extent than is necessary, but it cannot be allowed where there would be
real prejudice in the administration of justice.47 Thus, though one of the objects of the law of contempt
is to protect the right of an individual suitor to have his case fairly tried, the primary object is to prevent
interference with the administration of justice.
In S. Mulgaokar, In re,48it was observed that judiciary is not immune from criticism, but when that
criticism is based on obvious distortion or gross misstatement and made in a manner which is
designed to lower the respect of the judiciary and destroy public confidence in it, it cannot be ignored.
In the same case, another learned Judge observed: "Contempt power is a wise economy of use by
the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where
justice is jeopardised by a gross and/or unfounded attack of the Judges, where the attack is calculated
to obstruct or destroy the judicial process. It was further observed that Court should harmonize the
constitutional values of free criticism and the need for a fearless trial process and its presiding
functionary, the Judge. A happy balance has to be struck, the benefit of the doubt being given
generously against the Judge, slurring over marginal deviations, but severely proving supremacy of
the law over pugnacious, vicious, unrepentant and malignant consumers, be they are powerful press,
gang up of vested interests, veteran columnists of Olympian establishmentarians".
"The law relating to contempt of Courts has been designed to protect the function independence of the
Courts, so that they are able to maintain rule of law, which is the very basis of the democratic system
of Government. However, this does not make the Judges and their Courts absolute, arbitrary; or
completely immune from criticism. Their doings and their decisions are admittedly open to public
scrutiny through the powerful medium of press. Though both the press and the judiciary are
independent and have their respective functional autonomy, yet both are required to fulfil the same
constitutional objective, namely, to secure to all citizens "Justice" in its full comprehensive sense,
including social, economic and political."
"But where the authority and position of an individual judge or due administration of justice is
concerned, no wrong is committed by any member of the public who exercises the ordinary right of
criticising in good faith in private or public, the public act done in the seat of justice. A path of criticism
is a public way : the wrongheaded are permitted to err therein : provided that members of the public
abstain from imputing improper motives to those taking part in the administration of justice and are
generally exercising a right of criticism and not acting in malice or attempting to impair administration
of justice, they are immune. Justice is not cloistered virtue. She must be allowed to suffer the scrutiny
and respectful even though outspoken comments of ordinary men". 49In an earlier case, it was held:
"Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered
against any judicial act as contrary to law or public good, no court would treat this as contempt of
court".50
In Barada Kanta Mishra v. Registrar, Orissa High Court ,51 the Supreme Court said: "Vilificatory
criticism of a Judge functioning as a judge even in purely administrative or non-adjudicatory matters
amounts to criminal contempt. There is no warrant for the narrow view that the offence of
scandalisation of the court takes place only when the imputation has reference to the adjudicatory
functions of a judge in the seat of justice".52
Scurrilous abuse of a judge or court or attack on the personal character of a judge is punishable as
contempt. Punishment is inflicted to prevent mischief which undermines or impairs the authority of the
court. That is why the court regards with particular seriousness allegations of partiality or bias on the
part of a judge or a court.53
Seemingly, criticism of the conduct of the Judges counteracts the contribution of the Courts.
Nevertheless, such a conflict is sought to be resolved by emphasising that so long as the criticism is
constructive, i.e., directed to protect and promote public interest, the same criticism however vigorous
it may be, should not be construed as contempt of Court, or destruction of the institution of the
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judiciary. But then, here is a question that still remains to be answered: How to determine and decide
what is "just" or "public good"?
Obviously, the answer to this question cannot be given in absolute terms, because the notion of "just"
or "public good" is not static, it is relative--relative to "desh" and "kal"--relative to "space" and "time".
One must, therefore, keep on exploring "justice" and its nuances by using the functional strategy of
"thesis, anti-thesis and synthesis".
In the academic world, where it is both right and the responsibility of academic lawyers to keep on
reviewing the judicial decisions critically, where one is taught and trained to create a potential judge
"within" ourselves--the Judge whose judgment is subject to criticism, the Judge who is unable to
defend his judgment publicly. This instantly creates a constructive constraint in the thought process,
enabling the critic to have multi-dimensional view of the issue in hand. Such a strategy reduces the
possibility of ignoring the viewpoint of the judge on the one hand and increases the chance to have a
more dispassionate and balanced view of the problem in which critical appraisal on the other. Rest is
only a matter of form, observing the norms of a civil society. In the free market place of ideas, for
avoiding the sad spectacle of conflict, confusion and controversy, giving rise to the issue of contempt
of court, one needs to follow the traditional mantra--the Mantra of "Satyam, Shivam, Sundaram". That
is, so long as the criticism remains truly objective, directed to secure 'public good' and marked by rules
of decency, one need not tread with the fear of contempt. 54
In his book "Judicial Activism in India" by S.P. SATHE55 the learned author says thus:
"It is one thing to criticise the decisions of the court and quite another to criticize the judges. It seems
the court is even now rather too sensitive to criticism of the judges. There are a number of
contradictions in the law of contempt. First, there is no defence of the truth in a contempt case, as
there is available in a defamation case. Further, the law of contempt holds even the media liable for
reporting the contempt committed by another person. The media is caught as the horns of a dilemma.
If it is its duty to give information to people, and such right to give information is a concomitant of the
right to the freedom of the press, why should it be guilty of contempt merely because, it reports the
contempt committed by another person? In fact these questions should be raised before the courts.
The law that truth is no defence in a prosecution for contempt of court is an excessive restriction on
freedom of speech and expression. Similarly, the law that the media is also liable for contempt of court
when it reports a speech made by another person against which contempt proceedings are started is
a restriction on the people's right to information and the media right to give information. These
provisions ought to be struck down.
Does the judiciary need such protection? On the contrary, these provisions rob the judiciary of its
legitimacy. Ultimately a court of law does not sustain its legitimacy through it power to punish for
contempt. Legitimacy is sustained by a feeling among people that it is independent, objective,
principled and fearless. While scurrilous criticisms that will result in mud-slinging must be avoided, and
violent behaviour towards the court must be punished, a free and frank discussion about the judiciary
ought to take place."
Since the general principles of English common law are followed by Indian Courts in determining what
constitutes contempt of court these principles may be analysed broadly:
In relation to the freedom of speech and expression, there are three sorts of contempts of a Court: 56(a)
one kind of contempt is scandalising the Court itself; (b) there may be likewise a contempt of the Court
in abusing parties who are concerned in causes in the Court; (c) there may also be a contempt in
prejudicing mankind against persons before the cause is heard. But the above classification is by no
means exhaustive. Broadly speaking, it consists of any conduct that tends to bring the administration
of justice into disrespect or to obstruct or interfere with the due course of justice. 57
These three kinds of contempt are known as 'criminal contempt' as distinguished from 'contempt in
procedure', or 'civil contempt' consisting in disobedience to a Court's order or process involving a
private Injury.58
(I) Scandalising the Court.--At common law, any act done or writing published calculated to bring a
Court or a Judge of the Court into contempt, or lower his authority, is a contempt of Court, 59e.g.,
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imputing corruption,60 misconduct or incapacity in the discharge of his public duties. 61 Hence, any
criticism which tends to bring into ridicule and contempt the administration of justice is contempt. 62
Thus, it is a gross contempt to impute that Judges of the highest Court of Justice acted on extraneous
considerations in deciding a case.63"Whilst the courts themselves put great emphasis on freedom of
speech nevertheless, there have always existed laws which prevent publications that have the effect
of ridiculing and undermining the authority of court. Whilst the freedom of speech should be protected
at all costs, the judges are in the unenviable position of not being able to reply to verbal attacks made
on them through publication in the media, except perhaps through the courts themselves. Such
attacks are commonly referred to as "scandalising the court". 64 In R v. Commr. of Police of the
Metropolis exparte Blackburn (No.2) ,65an article was published criticising the decision of Court of
Appeal on the Gaming Act, the court held that criticisms of a court's decision do not amount to
contempt of court, even though they are in bad taste and contain inaccuracies of fact, provided they
are in good faith and do impute improper motives to those taking part in the administration of justice.
In R v. Editor of New Statesman exparte DPP ,66 it was held to be contempt to say that "it was
impossible for certain people to hope for trial from a named Judge. To commit this type of contempt,
the words have to be directed at a judge in his judicial capacity". 67 In Ambard v. AG for Trinidad and
Tobago ,68 reasoned criticism of certain sentences was held by Privy Council not to constitute
contempt on the basis that "Justice is not cloistered virtue : she must be allowed to suffer the scrutiny
and respectful even though outspoken, comments of ordinary men". 69
A fair criticism of the conduct of a Judge, the institution of the Judiciary and its functioning may not
amount to contempt if made in good faith and in public interest. To ascertain the good faith and public
interest, the Courts have to see all the surrounding circumstances including the persons responsible
for comments, his knowledge in the field regarding which the comments are made and the intended
purpose sought to be achieved. All citizens cannot be permitted to comment upon the conduct of the
institution itself. Litigant losing in the Court would be the first to impute motives to the judges and the
institution in the name of fair criticism, which cannot be allowed for preserving public faith in an
important pillar of a democratic set up, i.e., Judiciary. In R v. Almon ,70 the Court explains the necessity
for the branch of contempt in the following words: "The arraignment of the justice of the Judges is
arraigning the King's justice; it is an impeachment of his wisdom and goodness of his choice of his
Judges and excites in the minds of his people a general dissatisfaction with all judicial determination
and indisposes their minds to obey them; and whenever man's allegiance to the law is so
fundamentally shaken, it is most fatal and most dangerous obstruction to justice, and in my opinion
(JUSTICE WILMOT) calls out for a more rapid and immediate redress than any other obstruction
whatsoever".
In Chokalingo v. Att. G of Trinidad and Tobago ,71 LORD DIPLOCK said: "Scandalising of court is a
convenient way of describing a publication which, although it does not relate to any specific case
either post or pending or any specific judge, is scurrilous attack on the judiciary as a whole which is
calculated to undermine the authority of the courts and public confidence in the administration of
justice".
Under the Constitution, there is no separate freedom of the press and it is the same freedom of
expression, which is conferred on all citizens under Art. 19(1). Any expression of opinion would,
therefore, be not immune from the liability for exceeding the limits, either under the law of defamation
or contempt of Court or other Constitutional limitations under Art. 19(2). If a citizen, therefore, in the
garb of exercising the right of free expression under Art. 19(1) tries to scandalise the Court or
undermines the dignity of the Court, then the Court would be entitled to exercise power under Art. 129
or Art. 215, as the case may be. In relation to a pending proceeding before the Court, while showing
cause to the notice issued, when it is stated that the Court displays a disturbing willingness to issue
notice on an absurd, despicable entirely unsubstantiated petition, it amounts to destructive attack on
the reputation and the credibility of the institution and it undermines the public confidence in the
judiciary as a whole and by no stretch of imagination can it be held to be a fair criticism of Court's
proceedings. When a scurrilous attack is made in relation to a pending proceeding and the notice
states that the issuance of the notice to show cause was intended to silence criticism and muzzle
dissent, to harass and intimidate those who disagree with it, is a direct attack on the institution itself,
rather than the conduct of an individual Judge.72
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It was held in Arundhati Roy's case, that the scandalisation within the meaning of s. 2(c)(i) of the Act
of 1971 must be in respect of the court or the Judge with reference to administration of justice. It was
held to be a species of contempt which may take several forms. The dilemma of the law of contempt
arises because of the constitutional need to balance two great but occasionally conflicting principles--
Freedom of expression and fair and fearless justice.
"Scandalising" is an expression of scurrilous attack on the majesty of justice, which is calculated to
undermine the authority of the Courts and public confidence in the administration of justice. The
malicious or slanderous publication inculcates in the mind of the people a general disaffection and
dissatisfaction on the judicial determination and indisposes their delegiance to obey them. If the
peoples' allegiance to the law is so fundamentally shaken, it is the most vital and most dangerous
obstruction of justice calling for urgent act ion.73 It was held therein that "Scandalising the Court, would
mean hostile criticism of Judges as Judges or Judiciary. Any personal attack upon a Judge in
connection with the office he holds is dealt with under law of libel or slander. Yet defamatory
publication concerning the Judge as a Judge brings the Court or Judges into contempt, a serious
impediment to justice and an inroad on the majesty of justice. Any caricature of a judge calculated to
lower the dignity of the Court would destroy, undermine or tend to undermine public confidence in the
administration of justice or the majesty of justice. It would, therefore, be scandalising the judge as a
judge, in other words, imputing partiality, corruption, bias, improper motive to a judge is scandalisation
of the Court and would amount to Contempt of Court. Even imputation of lack of impartiality or fairness
to a Judge in the discharge of his official duties amounts to contempt. The gravamen of the offence is
that of lowering his dignity or authority or an affront to the majesty of justice".
Scandalising in substance is an attack on individual judges or the court as a whole with or without
referring to particular cases, casting unwarranted and defamatory aspersion upon the character or the
ability of the Judges. "Scandalising the Court" is a convenient way of describing a publication which
although it does not relate to any specific case either past or pending or any specific judge, is a
scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the court
and public confidence in the administration of justice. 74
Criticism of judges in relation to something done by them which has no relevance to their position as
Judges or criticism of the executive acts of a judicial officer do not amount to contempt. 75
The above rule is subject to important qualifications:

24i)  The object of the punishment is not protection of the Judges personally from
imputations to which they may be exposed as individuals, 76 but protection of the public
themselves from the mischief they will incur if the authority of the tribunal is impaired. 77
The rationale for punishment looks at the nature of the behaviour carried out by the
defendant as well as to its act ual or potential effect; criminal contempt are punishable
because the conduct involved poses a serious threat to the administration of justice and
is reprehensible. A deterrent effect may also be sought when the contempt is alleged;
the defendant may avoid or reduce his punishment by apologising and others may be
dissuaded from similar conduct if they are shown that even imprisonment may result. 78
The object of the power to punish contempt of court is to prevent interference with the
administration of justice and it is also a power in the courts to preserve their
independence".79 The purpose of imposing punishment for contempt of court is to ensure
faith, trust and confidence of public in the administration of justice. 80Punishing a person
for contempt of court is indeed a drastic step and normally such action should not be
taken. At the same time, however, it is not only the power, but the duty of the court to
uphold and maintain the dignity of the court and majesty of law which may call for such
extreme step. If for proper administration of justice and to ensure due compliance with
the order passed by court, it is required to take strict view under the Act, it should not
hesitate in wielding the potent weapon of contempt. 81 The power to punish for contempt
is not intended to be invoked or exercised routinely or mechanically, but with
circumspection and restraint. Court should not readily infer an intention to scandalise
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courts unless such intention is clearly established. Nor should they exercise power to
punish for contempt where mere question of propriety is involved. 82
Law of Contempt of Court does not exist to protect the personal dignity of the judiciary
nor does it exist to protect the right of parties or litigants though such individuals
undoubtedly benefit form the protection that the law of contempt provides. 83 Hence, the
summary power of punishing for contempt has been given to the courts - "to keep a
blaze of glory around them and to deter people from attempting to render them
contemptible in the eyes of the public".84 This is made clear in India, by s. 2(c)(i) of the
Act of 1971. It makes no mention of scandalising a Judge. Any imputation against a
Judge will constitute a contempt of court only if it lowers or tends to lower the authority of
the Court.85
It was held in Namboodripad v. Narayan ,86 that the guaranteed right on which the
functioning of our democracy rests, is intended to give protection to expression of free
opinion to change political and social conditions and to advance human knowledge.
While right is essential to a free society, the Constitution has itself imposed restrictions in
relation to Contempt of Court and it cannot, therefore, be said that the right abolishes the
law of contempt or that attacks upon Judges and Courts will be condoned. The
contention that 'scandalising' the Court had fallen in desuetude and, therefore, not be
enforced, was rejected.
The "scandalising" might manifest itself in various ways, but in substance it is an attack
on individual judge or the court as a whole with or without reference to particular case
casting unwarranted and defamatory aspirations upon the character and ability of the
judges.87
23ii)  It follows that the power to punish for scandalising the Court is a weapon to
be used sparingly and always with reference to the administration of justice 88 and not for
vindicating personal insult to a judge, not affecting the administration of justice:
"No doubt it is galling for any judicial personage to be criticised publicly as having done something
outside his judicial proceedings which was ill-advised or indiscreet. But if a Judge is defamed in such
a way as not to affect the administration of justice, he has the ordinary remedies for defamation if he
should feel impelled to use them."89
There are two primary considerations which should weigh with the Court in such cases, viz.,--(a)
whether the reflection on the conduct or character of the Judge is within the limits of fair, and
reasonable criticism, and (b) whether it is a mere libel or defamation of the Judge or amounts to a
contempt of the court.90
Where the question arises whether a defamatory statement directed against a Judge is calculated to
undermine the confidence of the public in the competency or integrity of the Judge or is likely to
deflect the court itself from a strict and unhesitant performance of its duties; all the surrounding
circumstances under which the statement was made and the degree of publicity that was given to it
would be relevant circumstances. A distinction must be made between a mere libel or defamation of a
judge and what amounts to contempt of court. The test in each case would be whether the impugned
publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the
due course of justice or the proper administration of law by the Court. It is only in this latter case that it
would be punishable as a contempt of Court. Alternatively, the test will be whether the wrong is done
to the judge personally or it is done to the public. It will be the injury to the public if it tends to create an
apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to
deter act ual and prospective litigants from placing complete reliance upon the court's administration
of justice, or if it is likely to cause embarrassment in the mind of judge himself in the discharge of his
judicial duties.91 The question is not to be determined solely with reference to the language or contents
of the statement made. Mere publication to a third party which would be sufficient to establish an
ordinary libel may not be conclusive for establishing contempt. That would depend upon the nature
and extent of the publication and whether or not it was likely to have an injurious effect on the minds of
the public and thereby lead to an interference with the administration of justice. 92
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An attack on personal or private capacity of a judge constitutes "libel" and not "contempt". 93 It was held
in that case that official capacity cannot be differentiated into judicial and administrative capacity. They
are intertwined. Any aspersion on the administrative capacity of a judge or the Court, which
undermines, lowers, or tends to undermine or lower the authority and dignity by imparting motive so
as to create a distrust in the minds of the public as to the capacity of the Judges to meet out
evenhanded justice is scandalising the Court. The image and personality of the High Court is an
integrated one. The law recognises a distinction between a mere libel or defamation of a judge and
whether that amounts to contempt of court.94 Court observed: "A distinction must be made between a
mere libel or defamation of a Judge and what amounts to contempt of court. The test in each case
would be whether the impugned publication is a mere defamatory attack on the Judge or whether it is
calculated to interfere with due course of justice or the proper administration of law by his court. It is
only in the latter case that it is punishable as contempt.
It will be an injury to the public if it tends to create an apprehension in the minds of the people
regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from
placing complete reliance upon the court's administration of justice or if it is likely to cause
embarrassment in the mind of Judge himself in the discharge of his official duties. It is well established
that it is not necessary to prove affirmatively that there has been act ual interference with the
administration of justice by reason of defamatory statement. It is enough if it is likely to tend in any
way to interfere with the proper administration of law. 95'Libel statements' do not necessarily amount to
criminal contempt. It has to be shown to the court that the publication obstructs or tends to obstruct
the administration of justice and unless the publications are shown to be interfering or obstructing the
administration of justice, the contempt jurisdiction is not attracted. 96
In B. Mishra v. Registrar of Orissa High Court ,97 it was pointed out that scandalisation of Court is a
species of contempt and may take several forms. A common form is the vilification of the Judge. When
proceedings in contempt are taken for such vilification, the question which the Court has to ask is,
"whether the vilification is of the judge "as a judge" or it is the vilification of the Judge as an individual.
In that case, court said that law of Contempt of Court is to protect the traditional confidence that in
courts justice will be administered if contempt proceedings are constituted. The object is not to
vindicate the judge personally but to protect the public against any undermining of their accustomed
confidence in the judge's authority. If the attack on the Judge functioning as a Judge substantially
affects the administration of justice, it becomes a public mischief punishable for contempt and it
matters not whether such an attack is based on what a Judge is alleged to have done in the exercise
of his administrative responsibilities. A judge's function may be divisible, but his integrity and authority
are not divisible in the context of administration of justice. An unwarranted attack on him for corrupt
administration is as potent in doing public harm as an attack on his adjudicatory function. Judicial
capacity is an ambivalent term which means "capacity of or proper to a judge and is capable of taking
in all functional capacities of a judge whether administrative, adjudicatory or any other necessary for
the administration of justice. Court concluded by saying that vilificatory criticism of a judge functioning
as a judge even in purely administrative or non-adjudicatory matters amounts to criminal contempt.
There is no such thing as denigrating a judge functionwise.
The emphasis under the Contempt of Courts Act is interference with the course of justice or
obstruction of the administration of justice or scandalising or lowering the authority of Court - "not the
judge" - highlights the judicial area as entitled to inviolability and suggests a functional rather than a
personal or "institutional immunity". The unique power to punish for contempt of itself inheres in a
"court qua court" in its essential role of dispenser of public justice. The key word is "justice" and not
"judge" - the key note thought is unobstructed public justice, not self-defence of a judge; the corner
stone of the contempt law is the accommodation of the two constitutional values - the right to free
speech and the right to independent justice. The ignition of contempt action should be substantial and
mala fideinterference with fearless judicial act ion, not fair comment or trivial reflection on the judicial
process and personnel.98
Contempt is a public wrong having adverse effect "on the due administration of justice" by
undermining the confidence of the public in judiciary, whereas "libel", which is an illegal act of writing
things about someone that are not true, is a personal injury. The test, if an act of criticism is simply
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'libel' or constitutes contempt is whether the impugned publication is a mere defamatory attack on the
judge or whether it is calculated to interfere with the due course of justice or the proper administration
of law by Court. It is only in the latter case, it will be punishable as contempt. In other words, that is,
'alternatively' the test is whether the wrong is done to the judge personally or is it done to the public. 99
The right to freedom of speech and expression guaranteed under Article 19(1)(a) does not embrace
the freedom to commit contempt of court. This is evident from the language of Article 19(2) which
excepts the existing law of contempt and all laws where reasonable restrictions are effected in relation
to contempt of court.100 Commission of contempt of court is not permissible while exercising
guaranteed right of freedom of speech and expression. 101
In Surendranath v. CJ and Judges of the High Court ,102 the Court said that contempt may include
defamation, yet an offence of contempt is something more than mere defamation. When the act of
defaming a judge is calculated to obstruct or interfere with due course of justice, it does amount to
contempt. But, under the Indian Penal Code , defamation is punishable as defamation and not as
contempt.103

A party to a pending appeal in the Supreme Court against the State of U.P. distributed in the Court premises a
leaflet stating that Government act s with partiality in the matter of appointment of those Judges of the
Supreme Court as Ambassadors, etc., who give judgments against the Government. Held, the object of the
publication was only to try to influence the Judges in favour of the Petitioner and others, who were in the same
position as the Petitioners, and that it was a clear contempt of the Court. 1

(iii) Fair and reasonable criticism of a judicial act in the interest of the public good does not amount to
contempt. Ordinarily, the court would not use the power to punish for contempt for curbing the right to
freedom of speech and expression, which is guaranteed under Art. 19(1)(a) of the Constitution. Only
when the criticism of judicial institution transgresses all limits of decency and fairness or there is total
lack of objectivity or there is deliberate attempt to denigrate the institution, then the court would use its
powers.2

"Judges and Courts are alike open to criticism, and if reasonable, argument or expostulation offered against a
judicial act is contrary to law or the public good, no Court could or would treat that as contempt of Court. The
law ought not to be astute in such cases to criticise adversely what under such circumstances and with such
an object is published; but is to be remembered that in this matter the liberty of the press is no greater than the
liberty of every subject."3Fair criticism of the system of administration of justice or functioning of institutions or
authorities entrusted with the task of deciding the rights of parties gives an opportunity to the operators of the
system or institution to remedy the wrong and also about improvements. Such criticism cannot be castigated
as an attempt to scandalise or lower the authority of court or other judicial institution or as an attempt to
interfere with the administration of justice except when such criticism is ill-motivated or is construed as a
deliberate attempt to run down the institution or an individual judge is targeted for extraneous reasons. 4We are
not subject to a King, but citizens of a republic and a blanket ban through contempt power, stifling criticism of a
strategic institution, namely, administration of justice, thus forbidding the right to argue for reforms of the
judicial process and to comment on the performance of the judicial personnel through outspoken or marginally
excessive criticism of the instrumentalities of law and justice may be a tall order, for, change through free
speech is basic to our democracy and preserve change through criticism is to petrify the organs of democratic
Government. The judicial instrument is no exception. The Court further said:"... to cite vintage rulings of
English courts and to bow to decisions of British Indian days as absolute is to ignore the law of all laws that
rule of law must keep pace with the rule of life". Court further said that "it is necessary to remember the legal
transformation in our value system on the inauguration of the Constitution and dogmas of the quiet past must
change with the challenges of the stormy present".5Freedom of expression as contemplated by Art. 19(1)(a) of
the Constitution is available to the press and to criticise a judgment fairly albeit fiercely is no crime, but a
necessary right. A fair and reasonable criticism of a judgment which is a public document or which is a public
act of a judge concerned with administration of justice would not constitute contempt. In fact, such fair and
reasonable criticism must be encouraged because, after all no one much less judges can claim infallibility.
Judges are also accountable to the society and their accountability must be judged by their conscience and
oath to their office.6 In that case, court further held that any criticism about the judicial system or the judges
which hampers the administration of justice or brings administration of justice into ridicule must be prevented.
The contempt of court proceedings arise out of that attempt. National interest requires that all criticisms of the
judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by
any partisan spirit or tactics.7"Whether the authority and position of an individual Judge or the due
administration of justice is concerned, no wrong is committed by any member of the public who exercises
ordinary right of criticisms in good faith in private or Public, the public act done in the seat of justice. The path
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of criticism is a public way: the wrong-headed are permitted to err therein : provided that members of the public
abstain from imputing improper motives to administration those taking part in the of justice, and the genuinely
exercising right of criticism and not acting in malice in attempting to impair the administration of justice, they
are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even
though outspoken comments of ordinary men."8

Under the cover of freedom of speech and expression, no party can be given licence to misrepresent
the proceedings and orders of the Court and deliberately paint an absolutely wrong and incomplete
picture which has the tendency to scandalise the Court and bring it into disrepute or ridicule. The right
of criticising, in good faith in private or public, a judgment of a Court cannot be exercised with malice
or by attempting to impair the administration of justice. Indeed, freedom of speech and expression is
the "lifeblood of democracy" but this freedom is subject to certain qualifications. An offence of
scandalising the Court per se is one such qualification, since that offence exists to protect the
administration of justice and is reasonably justified and necessary in a democratic society. It is not
only an offence under the contempt of Courts Act, but is sui generis. Courts are not unduly sensitive to
fair comment or even outspoken comments being made regarding their judgments and orders made
objectively, fairly and without any malice, but no one can be permitted to distort orders of the Court
and deliberately give a slant to its proceedings, which have a tendency to scandalise the court or bring
it to ridicule, in the larger interest of protecting administration of justice. 9
Fair and reasonable criticism of a judgment which is a public document or which is a public act of a
judge concerned with the administration of justice would not amount to contempt. 10 Though certain
imputations against the judge may be only libellous against that particular individual, they may at times
amount to contempt also depending upon the gravity of the allegation. Therefore, apart from the fact
that a particular statement is libellous, it can also constitute criminal contempt if the imputation is such
that the same is capable of lowering the authority of court. The gravity of the statement must be such
as would scandalise the court.11
"It is truly said that a judge who has not committed any mistake is yet to be born. Our legal system in
fact acknowledges the fallibility of the courts and provides for both internal and external checks to
correct the errors. The law, the jurisprudence and the precedents, the open public hearings, reasoned
judgments, appeals, revisions, references and reviews constitute the internal checks, while objective
critiques, debates, and discussions of judgments outside the courts and legislative corrections provide
the external checks. Together they go a long way to correct judicial errors. 12 Attributing impropriety or
lack of integrity, partiality, or extraneous consideration to a court exceeds the bounds of fair criticism. 13
Allegations of corruption against judiciary;14 or allegation in a newspaper against a sitting High Court
Judge that he has made false statement in a judgment; 15 News item appearing in the newspaper
saying that two sons of two senior Judges of the Supreme Court and two sons of Chief Justice of India
were favoured with allotment of petrol retail outlets from the discretionary quota of the ministry; 16
describing the conduct of Supreme Judge as "Goondaism"; 17 a representation made to the President
of India by a litigant who had lost before the Supreme Court alleging that he had been made to suffer
heavy damages by the Supreme Court by its deliberate, fraudulent, conspired and willfully pronounced
wrong judgment against all existing provisions of law;18 grounds in memorandum of appeal couched in
an intemperate language like "strained order" or 'absurd' or 'fraud', etc. have been considered as
scandalous amounting to criminal contempt.19
In the free market place of ideas, criticism about the judicial system or judges should be welcome, so
long as such criticism does not impair or hamper the administration of justice. In a democracy, judges
and courts alike are, therefore, subject to criticism and if reasonable agreement or criticism in
respectful language and tempered with moderation is offered against any judicial act or the conduct of
the judge, the institution of the judiciary and its functioning as contrary to law or public good, no court
will treat such criticisms as contempt of court. Undoubtedly the judgments are open to criticism. No
criticism of a judgment, however, vigorous, can amount to contempt of court, provided it is kept within
the limits of reasonable courtesy and good faith. Fair and reasonable criticism of a judgment which is
a public document or which is a public act of a judge concerned with the administration of justice
would constitute contempt. Such a criticism may fairly assert that the judgment is incorrect or an error
has been committed both regard to law or established facts. However, if the criticism is likely to
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interfere with due administration of justice, i.e., undermines the confidence which the public reposes in
the courts of law, as courts of justice, the criticism would cease to be fair and reasonable criticism, but
would scandalise courts and substantially interfere with the administration of justice. 20
The liberty of free expression cannot be equated or confused with a licence to make unfounded and
irresponsible allegations against the judiciary. 21
But the limits of bona fide criticism are transgressed when improper motives are attributed to judges
and this cannot be viewed with placid equanimity by a Court in a proceeding for contempt. 22
Imputations made against judicial officers without reasonable care and caution cannot be said to be
bona fide.23
A speech or publication alleging that the judge had a predisposition to acquit the accused because he
had already resolved to acquit them or has a bias or has been bribed or attributing such motives, lack
of dispassionate and lack of objective approach and analysis and pre-judging the issues, that
comments that the judge is about to retire is available for sale that an enquiry will be conducted as
regards the conduct of the judge who delivered the judgment as he is to retire within a month and a
wild allegation that judiciary has no guts, no honesty and is not powerful enough to punish wealthy
people would bring the administration of justice into ridicule and disrepute. The speech that the
judgment is rubbish and deserves to be thrown in a dustbin is not a fair criticism of the judgment and
transgresses the limits of fair and bona fide criticism.24
Thus, it is a gross contempt to impute that Judges of the highest Court of Justice acted on extraneous
considerations in deciding a case."
(II) Obstruction of or interference with the due course of justice.--Any speech or conduct which
tends to influence the result of a pending trial, civil or criminal, or otherwise tends to interfere with the
proper course of justice, amounts to contempt of Court. 25 In AG v. Butterworth ,26 a witness who gave
evidence was afterwards victimised by a trade union to which he was a member and honorary
treasurer and soon after was relieved of his appointment. It seemed that some members wanted to
punish the witness for giving evidence. LORD DENNING MR found this type of act ion to be
reprehensible, unacceptable and would wholly discourage witnesses from testifying for fear of
retribution being taken against them once the trial or hearing was over. Learned Judge said that
victimisation is as great an interference with justice and when it is done after the witness gets home as
before, he gets there. In another case, namely, Moore v. Clerk of Assize, Bristol ,27 the very same
Judge had to deal with a case where the witness was threatened by the offender after the witness
gave evidence. Learned Judge said: "Court will always preserve the freedom and integrity of
witnesses and not allow them to be intimidated in any way either before trial pending it or after it. Any
interference with jurors through intimidation, threats, etc. will constitute obstruction with administration
of justice. In AG v. Judd ,28 a jury member was harassed by a man whom she, as part of a jury,
unanimously convicted. He tried to persuade her to write to the judge saying that she had made a
mistake. She immediately went to the police.29
A contempt of court which occurs outside the court-room, even in the street, need not necessarily
appertain to a particular case or court.30 It is a contempt for a newspaper to disregard a judge's
direction that the name of prosecution witness in blackmail cases should not be disclosed or
published.31

25i)  Anything which prejudices the Court against any party before the cause is
heard, is contempt, whether the Court is actually influenced by the act or statement is
not material.32 The gist of the offence is conduct calculated to produce, so to speak, an
atmosphere of prejudice in the midst of which the proceeding must go on. 33 Thus,
discussion in a newspaper of the merits of a pending case or of the evidence to be
adduced at the trial constitutes contempt.34 The reasonable tendency of the writing to
prejudice the Court constitutes the contempt.35 The intention of the writer is also
immaterial.36
Speeches or writings misrepresenting the proceedings of the Court or prejudicing the
public for or against a party or involving reflections on parties to a proceeding amount to
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contempt. To make a speech, tending to influence the result of pending trial, whether
civil or criminal, is a grave contempt. Comments on pending proceedings, if emanating
from parties or their lawyers are generally a more serious contempt than those coming
from independent sources. The question in all cases of comment on pending proceeding
is not whether the publication does interfere with the due course of justice, but whether it
tends to interfere with the due course of justice. The question is not so much of the
intention of the contemner or whether it is calculated to interfere with the administration
of justice.37 The above decision was followed by Andhra Pradesh High Court which held
that the law is the same even after the 1971 Act came into force. It was observed: "It
must also be remembered that our law of contempt does not prevent comment before
the litigation is started or before it has ended. So long as the commentators get their
facts right and keep their comments fair, they are without reproach. They do not offend
against the law as to contempt of court unless there is real and substantial prejudice to
pending litigation before the Court. Matters of public interest, particularly academic
questions which have no relevance to a pending litigation but are general educative
character, no person can stop such comment by serving a writ. 38It was further observed
in that case thus: "When litigation is pending before a Court, no one shall comment on it
in such a way that there is real and substantial danger or prejudice to the trial of the act
ion, as for instance by influence on the judge, the witnesses or by prejudicing mankind in
general against a party to the cause. Even if the person making the comment honestly
believed to be true still it is a contempt of court if he prejudices the truth before it is
ascertained in the proceedings. To this general, there is a further rule and that is, that
none shall by misrepresentation or otherwise bring unfair measure to bear on one of the
parties to a cause so as to force him to drop his complaint or defence . ...We must bear
in mind that there must appear to be a real and substantial danger of prejudice". The
question whether there is substantial risk that the course of justice in particular legal
proceedings will be seriously impeded or prejudiced is ultimately one of fact; this will
depend on whether the publication will bring influence to bear which is likely to direct the
proceedings in some way from the course which they would otherwise have followed. 39
AG v. Times Newspapers Ltd ,40 was concerned with reports carried by newspapers
about a man who had intruded into the Queen's bedroom at Buckingham Palace. The
man in question was awaiting trial on a number of counts, including theft of a bottle of
wine. It was held that the newspaper report that he had admitted the theft was a
contempt since it was difficult to see how an assertion that an accused person had
admitted the very fact which was in issue could do otherwise than cause a very
substantial risk that the trial might be prejudiced.41 But it was held that there was no
scope for influence by the newspaper publication where the trial is not likely to take
place in near future.42
According to S.P. SATHE, a different approach is required in regard to pending matters.
The learned author says, "Regarding matters pertaining to question of law that are
pending in court, the law of contempt should not be invoked. This power is to be used
only when comments made as a pending matter are likely to prejudice the court either
way. This happens in criminal cases where comments about the creditability of a witness
or the character of the accused might influence the court. But comments on matters of
law need not prejudice a judge. Why should we presuppose that the judges can be
swayed by opinions of media writers or jurists on legal questions pending before the
court? The contempt of court arising from expressions of opinions on matter pending
before a court arose out of the jury trial held in common law countries. The jury
consisted by lay persons whose minds could be swayed by expression or opinions. Such
restraints may be desirable in respect of trial proceedings, where evidence is taken on
facts. But when the court has started entertaining matters involving question of
principles, should be contempt law be applied in its original rigidity? The Supreme Court
asks the parties to such litigation to retrain from speaking to the media as pending
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matters. Is it necessary? Does such restraint not impose unreasonable restriction on

freedom of speech?43
24ii)  Similarly, it is contempt to prejudice a party to a Pending proceeding.
"The publication of injurious misrepresentations concerning parties to proceedings in
relation to those proceedings may amount to contempt of Court, because it may those
parties to discontinue or to compromise, and because it may deter persons with good
causes of action from coming to the Court, and is thus likely to affect the course of
justice.44
Thus, it is a contempt to publish in a newspaper a photograph of a person charged, with
an offence when a question of identity may arise at the trial. 45 No editor has a right to
assume the role of an investigator, 46 and to publish statements of facts, during the
investigation of a crime, suggesting that the accused was guilty of the crime. 47 The
publication of the statement of a witness recorded under s. 164 of the CrPC . before
the commencement of the trial is likely to create in impression that the accused was
guilty and thus to prejudice him at the trial.48 A misrepresentation of the evidence in a
pending case, even though unintentional, constitutes contempt if it is likely to prejudice
the minds of the public against the accused before the case is finally heard. 49 It is
contempt to prejudice a party to a pending judicial proceeding, e.g., by holding a parallel
inquiry on a matter which is sub judice, provided the scope of the inquiry is the same. 50
Publication of a news item which is a clear distortion of the order passed by the court is
contempt of court.51 In Sadhvi Ritumbhara's case,52 the contemner caused a news to be
published which had the effect of conveying to the public that order of High Court had
been reversed, when in fact the Supreme Court had not done so. The defence of the
contemner was that he was acquainted with legal terminology and had misunderstood
the word "leave granted" as accepting the case of appellant before the Supreme Court
on merit. The court found that the contemner had deliberately misled the public by
making misstatement about the contents of the order and committed contempt of court. 53
16iii)  Any threat to a party to a pending litigation which would force him to
withdraw his act ion or to abandon it, amounts to contempt. 54 The threat may be offered
by issuing a circular that disciplinary action would be taken against a Government
servant if he seeks redress to a court in matters arising out of his employment without
first exhausting the official channels of redress.55
12iv)  It is contempt on the part of any party to a prohibition order issued by the
Court to commit a breach of it after (a) service of such order upon him, or (b) otherwise
acquiring definite knowledge that such an order had been made. 56
Under Sections 3 of the Contempt of Courts Act , 1971, no proceedings for contempt
can be initiated "if the publisher had no reasonable grounds for believing that the
proceeding was pending" which is a departure of earlier law. In Saibel Kumar v. B.K.
Sen ,57 it was observed: "If the conduct of a particular party amounts to contempt of
court, usually lack of knowledge of pending proceeding may not be available to him by
way of defence".
In Aligarh Municipality v. E. T. Mazdoor Union ,58 the Municipality and its officers were
convicted by the High Court for contempt of lower court's order prohibiting them from
realising any fees for the use of stand of tongawalas during pendency of the suit. The
Supreme Court confirmed the sentence on the Municipal Board and the Domain
Inspector. A Corporation is liable for contempt. A command to it is a command to its
officers. Disobedience by the officers amounts to disobedience by the Corporation.
Knowledge of the order is sufficient and it need not be served to justify contempt act
ion.59
11v)  It is contempt on the part of a subordinate Court to intentionally and60willfully
disobey the order of a superior Court.61 But there cannot be an intentional disobedience,
unless the subordinate Court had knowledge of the orders of the superior Court. 62
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Though a telegram from the advocate before the superior Court may not be sufficient for
communicating a stay order issued by the superior Court, an affidavit filed by the party
cannot be overlooked by the subordinate Court.63
It was held in B.K. Kar's case that before a subordinate court can be found guilty of
disobeying the order of the superior court, and thus have committed contempt of court, it
is necessary to show "that the disobedience was intentional". There is no room for
inferring an intention to disobey an order unless the person charged had knowledge of
the order. If what a subordinate court has done is in utter ignorance of an order of a
superior court, it would not amount to "intentional disobedience" of the court's order". 64.
When allegations are made by a contemner (an advocate) in his affidavit that he was
saying in good faith that he came to know from other members of the bar that some
corrections were made in the judgment by a High Court Judge after pronouncing the
final order, court rejected the plea of good faith since there was no mention in the
affidavit that he made enquiry about what happened in court while the final order was
pronounced.65
9vi)  Any direction given by an administrative officer to a Magistrate to ignore the
decision of a superior Court constitutes flagrant interference with the administration. 66

1III)  Contempt in the Face of the Court.--"In the face of the court" here means
that the offender does an act which the judge is fully aware of which result in the court
proceedings being disrupted, interfered with, delayed, etc. such that the judge has no
option but to bring the offender before the court and if the offensive conduct warrants to
fine and/or to sentence him to the immediate imprisonment or indeed by other action
which would remedy the contempt.67
All superior courts have power to punish summarily by fine or imprisonment violence committed or
threats uttered in the face of the court. Thus the judge may punish an attack on any one in court or
restrain the use of threatening words or scurrilous abuse. The issue whether an act constitutes a
contempt is for the judge alone to decide. If the act is committed in court, the judge in a sense is
prosecutor, chief witness, judge and jury. 68
Contempt in the face of the court includes insulting behaviour; 69 disregard of a judge's ruling and
refusal by a witness to give evidence or to answer question which he or she is required to answer. 70
Typical example of 'contempt in the face of court' includes "shouting, severe disruption, refusing to
answer question in court, wolf-whistles, protest in court, disobeying the judge, throwing objects at the
judge, threatening persons in court, witnesses refusing to testify, jurors refusing to reach a verdict". 71
Such is the sanctity of the court-room that very little leeway is granted to those who show disrespect
towards the proceedings. The proper, uninterrupted proceedings in a court of law take precedence
over any unauthorised disruption, however justified and principled that disturbance may be. 72
The guidelines for a judge to determine what specific act ion he should take regarding a contempt of
court in these circumstances were set out in R v. Hill .73 In that case, the offender shouted from the
public gallery that the judge was biased and a racial. She was arrested and after hearing the argument
by counsel, was sentenced to seven days imprisonment. On appeal, the Court of Appeal stated that
the authority must be upheld and all necessary steps must be taken to achieve this. These included --
(1) the judge ordering the offender to be arrested and detained; (2) allowing the offender the
opportunity to apologise ; (3) allowing the counsel to give advice; (4) granting an adjournment, if
necessary; (5) listening to counsel's submission; (6) fining or sentencing the offender, if warranted. 74
The alleged contempt does not have to be committed in the court-room itself, so long as it is closely
connected with the case in progress, for example, threatening a witness outside the court-room or
putting a cylinder of laughing gas on the roof of the court building with the object of introducing gas
into a particular room.75 But it was also held that a mere attempt to commit contempt is not contempt of
court.
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In Balogh's case, LORD DENNING MR, defined what is meant by "contempt in the face of the court".
Learned Judge said: "But I find nothing to tell us what is meant by "committed in the face of the court".
It has never been defined. It means thus ; I think, to be ascertained from the practice of the Judges
over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covers all
contempt for which a judge on his own motion could punish a man on the spot. So, "contempt in the
face of the court" is the same thing as "contempt which the court can punish of its own motion". It
really means "contempt in the cognizance of the court".
The "actus reus" need not necessarily occur in the presence of the court. Courts have treated
offensive conduct having close nexus with the affairs or business of the court as having taken place
constructively in the presence of the court although the actual situs of the conduct was outside the
physical precincts of the court. It was held: "...those who have duties to discharge in a court of justice
are protected by the law, and shielded on their way to the discharge of their duties, while discharging
them, and on their return therefrom, in order that such persons may safely have resort to the court of
justice".76 The uttering of words or an act ion in the face of the Court or in the Course of proceedings
may be a contempt, provided they interfere with the course of justice,77e.g., persisting in a line of
conduct or use of a language in spite of the ruling of the presiding Judge, 78 or threatening or
attempting violence on the opponent or using language so outrageous and provocative as to be likely
to lead to a brawl in Court. But a mere insult to counsel or the opposing litigant is very different from
an insult to the Court itself.79'The power to punish for contempt should not be used to suppress merely
offensive methods of advocacy,80 or mere discourteous conduct of a counsel.81 But an Advocate who
signs an application or pleading containing matter scandalising the Court which tends to prevent or
delay the course of justice is himself guilty of contempt of Court unless he reasonably satisfies himself
about the prima facie existence of adequate grounds therefor.82 A witness may render himself liable to
contempt if he wilfuly refuses to answer a question83 or to leave the Court when so ordered.84
Counsel raising pitch of his voice to an unusual level and using derogatory language before the
Court,85 abusing the Judge in the Court and threatening to get him transferred and impeached, 86
advocate leaving the Court room without listening to the order being dictated without leave of Court,, 87
counsel shouting slogans in open court and hurling shoe towards the Bench,, 88 failure to maintain
dignity, decorum and order in the court proceedings, 89 are some of the instances where contempt
action is taken "being contempt on the face of the Court". Where a lawyer dissatisfied with the order
and attitude of a subordinate judge hurls a shoe which hit the dais of the Judge, it is a criminal
contempt,,90 advocate drafting a notice sent to a Magistrate who refused to grant bail containing
scandalous remarks relating to judicial function is contempt. 91 Scandalous allegation in a contemption
petition also amounts to contempt.92 Interfering with due conduct of court proceedings by aggressively
exchanging heated words and creating unpleasant scenes forcing the judge to rise (in Sessions Court)
is contempt in the face of the court whereby people's faith in the administration of justice receives a
severe jolt and precious judicial time is wasted.93
India
(B) India.--Since the publication of the 5th Edition of this Commentary, the law relating to contempt of
courts has been comprehensively codified, by the Contempt of Courts Act , 1971. 94
Contempt of Courts Act , 1971
This Act, however, is not intended to be an exhaustive Code on the subject for, s. 22 of this Act says--
Not a complete Code
"The provisions of this Act shall be in addition to, and not in derogation of, the provision of any other
law relating to contempt of court."
This means that the existing law relating to contempt of Courts is not intended to be superseded by
the Act of 1971 but only to be supplemented by certain additional provisions both substantive and
procedural.95 In Ahmed Ali v. Superintendent of District Jail, Tejpur ,96 the court held: "It is essential to
safeguard the dignity of court and protect it from any attack from any one which would undermine this
dignity and lower the court's prestige in the eyes of common man. So, what would offend this dignity
and lower the court's prestige is a matter for the court to determine. A fortiori, what is contumacious, it
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is for the court to decide. Its discretion cannot be confined within the four corners of the definition. This
does not mean that the court shall not be guided by the definition given in the Act, but the categories
of contempt may not be closed by definition". It would not thus affect the jurisdiction of the Supreme
Court and a High Court to proceed under Art. 129 or 215 of the Constitution 97 or of other Courts under
s s. 345-352 of the CrPC , 1973 (corresponding to s s. 460-7) of the old Code, or the substantive law
contained in ss. 175, 178, 179, 180, 228 of the IPC .
Under the Code of Civil Procedure , Order 16 Rule 10 provides for consequences for failure to attend
court in spite of receipt of summons either to produce documents or to give evidence. Order 39 Rule
2, 2A provides for the grant of injustice and consequences to disobediences. Order 40 Rule 1 provides
for appointment of receiver. Section 151 saves the inherent powers of court to prevent abuse of
process of court. A party to a litigation or even a stranger can be guilty of abuse of process of court by
acting in contempt of authority of court.98 The inherent powers of High Court and Supreme Court are
specifically recognised under Arts. 215 and 129 of the Constitution and, therefore, they can punish for
contempt of court.99 Sections 17 of the Administrative Tribunals Act empowers the Tribunal to punish
the person guilty of contempt of the Tribunal.
Abuse of process calculated to hamper the due course of judicial proceedings or orderly
administration of justice is contempt.100
A person to whom a writ has been directed is bound to obey and comply with it. An act ion by way of a
writ proceeding is an action "in personam" and intentional disobedience of the writ, direction or order,
constitutes contempt and is punishable with fine, attachment of property or even imprisonment. 101
There are, however, provisions in this Act of 1971 itself which seek to supersede the existing law on
certain points, e. g., ss. 12(2), 13 by use of the expression 'notwithstanding anything contained in any
law for the time being in force'.
Be that as it may, for the substantive law as to what constitutes or does not Constitute it contempt of
court in a particular instance, one has still to fall back upon the English common law which was
applied by the Court (see ante), as the existing law, under Art. 372(1) of the Constitution, for s. 9 of the
Act of 1971 explicity provides--
"Nothing contained in this Act shall be construed as implying that any disobedience, breach,
publication or other Act is punishable as contempt of court which would not be so punishable apart
from this Act ."
Section 8 similarly says that the defences available in a contempt proceeding under the existing law
would still be available under the new Act:
"Nothing continued in this Act shall be construed is implying that any other defence which would have
been a valid defence in any proceeding for contempt of court has ceased to be available merely by
reason of the provisions of this Act."
Civil and Criminal Contempt of Court
The expression 'contempt of court', in its generic sense, comprises two kinds of contempt--civil and
criminal; and this proposition is codified in s. 2 (b)-(c) of the Act of 1971:

21a)  "Civil contempt means wilful102 disobedience to any judgment, decree,

direction, order,103 writ or other process of a court or wilful breach of undertaking 104 given
to a court."
22b)  "Criminal contempt means the publication (whether by words, spoken or
written or by signs, or by visible representations or otherwise of any matter or the doing
of any other act whatsoever which--
4. scandalises or tends to scandalise, or lowers or tends to lower the authority
of, any court of; or
4. prejudices, or interferes or tends to interfere with, the due course of any
judicial proceeding; or
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3. interferes or tends to interfere with, or obstruct or tends to obstruct, the

administration of justice in any other manner."

Since Art. 19(2) of our Constitution lays down a limitation on the freedom of speech, it is obvious that
Art. 19(2) refers to 'criminal' contempt only. 'Civil' contempt consists of a breach or violation of the
Court's order by a party, with notice of the order. 1
Civil contempt has no necessary connection with the freedom of speech and expression. In India, the
power to punish for civil contempt is conferred by Order 39, Rules 1(2) and 2(3) of the Code of Civil
Procedure .
The Supreme Court, after discussing the Law of Contempt in England, Wales and Scotland 2has said:
"Under the Indian Law, the conduct of the parties, the act of disobedience and the attendant
circumstances are relevant to consider whether the case would fall under civil or criminal contempt.
For example, disobedience of an order of court 'simpliciter' would be civil contempt; but when it is
coupled with the conduct of parties which is contemptuous, prejudicial and is in flagrant violation of the
law of the land, it may be treated as a criminal contempt". 3
In H.G. Rangangoud v. STC ,4 after referring to s. 2(c) of the Act, the Court said: "From a plain reading
of the above said provision, it is evident that an act which prejudices or interferes or tends to interfere
with due course of judicial proceeding comes within the mischief of criminal contempt. The power to
punish for contempt is inherent in the court of record and described as a necessary incidence of every
court of justice. The power is inalienable attribute of the court and inheres in every court of record.
This power though inherent to the High Court is given a constitutional status by Art. 215 of the
Constitution. It is to secure public respect and confidence in the judicial process". The Court further
said: "Rule of law is the basic rule of governance of any civilised democratic polity. It is only through
the courts that rule of law unfolds its contours and establishes its concept. For the judiciary to carry
out its obligation effectively and true to the spirit with which it is sacredly entrusted the task,
constitutional courts have been given the power to punish for contempt, but greater the power, higher
the responsibility".
Discretion of Court
'The jurisdiction to commit for contempt of Court is not to be invoked unless there is real prejudice
which can be regarded is a substantial interference5 with the due course of justice. The purport of the
Court's action is a practical purpose and the Court will not exercise its jurisdiction upon a mere
question of propriety.6 Thus, a superior officer who receives an application containing allegations
against the trying Magistrate is not guilty of contempt if he transmits that application to the trying
Magistrate and calls for a report.7
This is explicitly laid down in Sections 13 of the Contempt of Courts Act , 1971:
"Notwithstanding anything contained in law for the time being in force, no court shall impose a
sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a
nature that it substantially interferes, or tends substantially to interfere with the due course of justice."
Normally, actions for contempt may not be taken by the court where the disobedience of the order is
unintentional and accidental,8 or where the order was made with consent of parties Babu Ram Gupta
v. Sudhir Bhasin .9 Where it is impossible to comply with the order, contempt proceedings may not be
initiated.10 It was held that in such cases, respect should always be shown to the Court. If any party is
aggrieved by the order, which is in its opinion is wrong or against rules or implementation is neither
practicable nor feasible, the remedy is that it should approach the court. 11 Even in respect of consent
decrees or orders, though the same are executable under the Code of Civil Procedure , it cannot be
said that no contempt proceedings can be initiated. Merely because an order or decree is executable,
that would not take away the court's jurisdiction to deal with a matter under the Act provided the court
is satisfied that the violation of the order or decree is such that if proved, it would warrant punishment
under Section 13 of the Act on the ground that the contempt substantially interferes or lends
substantially to interfere with due course of justice. 12 But normally action for contempt may not be
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taken by the court where the disobedience of the order is unintentional and accidental. Where the
allegation made against the contemnor also constitutes an offence under the Indian Penal Code 13 or
the complainant has the option to availing execution proceedings, 14 it may not be desirable to exercise
contempt jurisdiction.
The court has a solemn duty to exercise its powers to proceed for contempt only in case of real and
serious moment, where there has been really a serious interference with the course of justice. Once it
is established that such was the case, the fact that the publication also constitutes a libel may not
deter the High Court from interfering and punishing the contemner. In that case, the alleged histories
of the prisoners and of complainant were published.15 They could not be evidence in the pending case.
In commenting on the untrustworthiness of the evidence, which may be led in the criminal case, the
contemners were held to have committed gross and serious contempt. It became the duty of the High
Court to intervene in such case and punish the contemners. In that case, an article in a newspaper
(Blitz) was published commenting upon a criminal case, in order to prejudice the public mind against
the accused before it was taken up for trial by the court concerned, irrespective of the fact as to
whether any act ual damage was done to the case.
The amplitude of the words "due course of justice" used in Section 13 is wider than the words "due
course of any judicial proceedings" or "administration of justice" used in sub-clauses (ii) or (iii) of
Section 2(c). If the Act complained scandalises the judicial officer in regard to discharge of his judicial
functions, if thereby substantially interferes or tends to interfere with the "due course of justice" which
is a facet of the broad concept of the administration of justice, it is punishable under Section 13. 16
Jurisdiction to punish for contempt

5.  So far as the Supreme Court and the High Court are concerned, the
Constitution itself has conferred upon them the power to punish for contempt of
themselves (Arts. 129 and 215, respectively), as 'courts of record'. Since this jurisdiction
is conferred by the Constitution itself, this jurisdiction cannot be taken away by
legislation and conferred afresh by virtue of the authority of the Legislature. 17
Maintenance of the dignity of the Courts is one of the cardinal principles of the rule of
law. Where any criticism of judicial institution couched in language that apparently
appears to be mere criticism, but ultimately results in undermining the dignity of the
Courts cannot be permitted. Undermining the dignity of the Supreme Court or the High
Court would attract Art. 129 or Art. 215 of the Constitution and also the provisions of the
Contempt of Courts Act 1971. If a citizen, in the garb of exercising the right of free
expression under Art. 19(1) tries to scandalise the court or undermines the dignity of the
court, the court would be justified in exercising power under Art. 129 of the Constitution.
When a scurrilous attack is made in relation to a pending proceeding and notice states
that the issuance of the notice to show cause was intended to silence criticism and
muzzle dissent, to harass and intimidate those who disagree with it, it is a direct attack
on the institution itself, rather the attack is on the individual judge. The contemner was
found guilty of committing criminal contempt of Supreme Court for scandalising its
authority with mala fide intention and was, therefore, guilty of contempt punishable under
Sections 12 of the Contempt of Courts Act 1971. 18
Power to punish for contempt is a rare species of judicial power which by its very nature
calls for exercise with great care and caution. Such power ought to be exercised only
where silence is no longer an option.19
But, subject to this limitation, Parliament has been given the power to regulate the
exercise of this power by Entry 77 of List I (as regards the Supreme Court), and Entry 14
of List III (as regards Courts other than the Supreme Court). In exercise of this power,
the quantum of the punishment which could be awarded by the Supreme Court or a High
Court for contempt of itself has been limited by Sections 12(1)(2) of the Contempt of
Courts Act , 1971, to 6 months' imprisonment or a fine of Rs. 2000 or both, and the
 166

procedureto be followed has been laid down in ss. 14-20 of that Act . Section 20 sets a
limitation of one year in all cases.
6I.  As regards contempts of courts subordinate to the High Court, the
jurisdiction is conferred by the Contempt of Courts Act , 1971 20 (which replaces the
Contempt of Courts Act , 1952), exclusively on the High Court to which the inferior court
is subordinate (s s. 10-12).
5II.  The Act of 197121 also lays down, for the first time, the broad principles of
substantive law relating to contempt of court,--its two branches, civil and criminal
contempt, and the different species falling under each, as well as the exemptions
granted by the Legislature. But the inherent jurisdiction of the Supreme Court and a High
Court, as 'court of record', which is safeguarded by Arts. 129 and 215 of the Constitution,
to take steps in case of any contempt falling outside the cases mentioned in this Act, is
saved by s. 22.22
This section would also save the specific provisions of the I.P.C. (s. 228), and the Cr.
P.C. (s s. 345-46), relating to 'ex facie' contempts.
3V.  As to ex faciecontempt--(a) So far as the Supreme Court and a High Court
are concerned, the Act of 1971, for the first time, regulates this power, by s. 14. Under
Sections 14 of the Contempt of Courts Act , suo moto cognizance can be taken for
initiating contempt proceedings by the High Court or Supreme Court, when it appears to
the court that the contemner has been guilty of contempt committed in the presence of
hearing, the court may draw up proceedings as prescribed. When third party makes
allegation of such conduct against anybody, even then the court may adopt the
procedure prescribed by s. 14 only if the conduct has been indulged in close proximity of
the court-room, namely, in its presence or hearing unnoticed by the court itself. 23
(b) As regards 'Courts Other than the Supreme Court and a High Court, the jurisdiction of an inferior
Court, to proceed summarily, under s s. 345-52 of the Criminal Procedure Code, 1973 (corresponding
to s s. 480-87 of the old Code) is saved by the Proviso to s. 10 and s. 22 of the Act of 1971.
Can the Court take cognizance of contemptsuo motu?

4.  It is now established that the provision for motion in sub-sec. (1) being
exhaustive, a private citizen cannot move the High Court for proceeding in contempt
against another person, without the consent of the Advocate-General in writing. 24 But in
C.K. Daphthary v. O.P. Gupta ,25Supreme Court recognised the right of the Supreme
Court Bar Association and advocates to move the Court for taking act ion in contempt.
Similar view was held in Shri Lachoo Mal v. Shri Radhyeshyam ,26 wherein it was pointed
out that there is nothing in law which prevents the Court from entertaining a petition at
the instance of the President of the Supreme Court Bar Association and other
advocates. The Bar is vitally concerned in the maintenance of the dignity of the Court
and the proper administration of justice.
Jurisdiction to initiate proceedings as also the jurisdiction to punish for contempt are discretionary with
the court. Contempt generally and criminal contempt certainly is a matter between the court and
alleged contemner. No one can compel or demand as of right initiation of proceedings for contempt.
The person filing an application or petition before the court does not become a complainant or
petitioner in the proceedings. He is just an informer or relator. His duty ends with facts being brought
to the notice of court. It is thereafter for the court to act on such information or not. 27
In contempt proceedings, the right of a party is only to alert the court that a contempt has been
committed. He has no separate and greater rights. 28
If consent is withheld without reasons or without consideration of that right granted to any other person
under s. 15 of the Act, that could be investigated in an application made to the Court. In Conscientious
Group v. Mohammed Yunus ,29 it was observed that reasons given by the Advocate-General or
Solicitor-General in giving or not giving his consent is justiciable. 30 On a contempt petition filed by a
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private person without obtaining consent of the Advocate-General, issuance of notice to the
contemner by the High Court amounts to suo motu action by the Court.31

5.  But, approving of the view of the Allahabad High Court, 32 the Supreme Court
has also held33 that s. 15 does not bar the inherent jurisdiction of the High Court or
Supreme Court to proceed suo moto34 for contempt of itself, on information contained in
an application made to it by a private party, But such jurisdiction would not be exercised
except in a very clear case.35
VII. Defamation.--Defamation is an injury to a man's reputation. The freedom of speech or expression
does not entitle the person to injure another in his trade or to lower him in the esteem of his fellow-
beings, or to expose him to hatred, ridicule or contempt, by publishing a false statement regarding that
other person, without lawful justification. Defamation is the generic term of which 'libel' and 'slander'
are species, known to English law.
Defamatory matter is a matter which exposes the person about whom it is published to hatred, ridicule
or contempt or which causes him to be shunned or avoided. 36 Such matter in writing, printing or some
other permanent medium is a libel, if in spoken words or significant gesture, is a slander. 37
The public interest that the law should provide an effective means whereby a man vindicates his
reputation against columny, has nevertheless to be accommodated to the competing public interest in
permitting men to communicate frankly and freely with one another about matters with respect to
which the law recognises that they have a duty to perform or an interest to protect in doing so. 38
U. S. A.
(A) U.S.A.--In the exercise of its police power, the State is competent to punish libels not only against
individuals39 but also against well-defined groups or classes,40 with whose position and esteem in
society the affiliated individual may be inextricably involved.41
Under the existing law (as in England) a civil action for damages42 lies for libel and slander, and where
the utterance causes a breach of the peace, the offender is also liable to criminal prosecution.
The American law of damages for libel, it should be noted, offers great latitude to criticism of the act
ion and conduct of public officials and even candidates for public offices, and 'public figures', 43 in view
of the public interest in getting proper information regarding public affairs and the holders of public
offices. Generally speaking, little liability in this sphere exists, in the absence of actual malice.44 The
effect of the Supreme Court decision on the freedom of press particularly in New York Times v.
Sullivan 45 has been to create a new law of libel concerning matters of public or general interest under
which the press has much greater freedom of public information and comment than under the English
law. Thus in an action brought by a public figure, the plaintiff must prove that the publication was false
and that it was published either with knowledge of its falsity or with serious doubts as to its truth. It has
been said in the High Court of Australia that the great virtue of American approach is that "it offers
some protection to the individual who is defamed and at the same time offers a large measure of
protection to the publisher".46The same principle has been applied to criminal act ion for libel aimed at
public officials, including judges, ensuring immunity in many cases that would be punishable as
contempt of court in England or in India.47
The principle enunciated in Sullivan48 was applied to public figures. In Curtis Publishing Co. v. Butts
and Associated Press v. Walker , the two cases were decided together. 49 In both cases, Butts was a
well-known football player and Walker was a retired General. In that case, court said: "Public figures
like public officials often play an influential role in ordering society and have a ready access as "public
officials" to mass media, both to influence policy and counter criticism of them. Our citizen has a
legitimate and substantial interest in the conduct of such persons, uninhibited debate about their
involvement in public issues and events is as with public officials". But who is a public figure? The
court in Butts and Walker50 suggested that public figures were those people who are intimately
involved in the resolution of important public question or who, by reason of their fame, shape, events
in areas of concern to society at large". In Gertz v. Robert Welch ,51 the court said that a public figure is
a person who has assumed special prominence in the affairs of society. Some occupy positions of
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such persuasive power and influence that they are deemed public figures for all purposes. More
commonly those classed as public figures have thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues involved.
The guarantees for speech and press are not the preserve of political expression or comment upon
public affairs, essentials those are to healthy Government. One need only to pick up any newspaper
or magazine to comprehend the vast range of published matter which exposes persons to public view,
both private citizens and public officials. Exposure of the self to others in varying degrees is a
concomitant of life in a civilised community. The risk of this exposure is an essential incident of life in a
society which places a primary value on freedom of speech and of press. Freedom of discussion, if it
would fulfil its historic function in this nation, must embrace all issues about which information is
needed or appropriate. to enable the members of society to cope up with the exigencies of their
period.52"Some degree of abuse is inseparable from the proper use of everything and in no instance is
the more true than in that of the press.53 It was further said: "We create a grave risk of serious
impairment of the indispensable service of a free press in a free society, if we saddle the Press with
the impossible burden to verify to a certainty the facts associated in news articles with a person's
name, picture or portrait, particularly as related to non-defamatory matter. Even negligence would be a
most elusive standard, especially when the content of the speech itself affords no warning of
prospective harm to another through falsity. A negligence test would place on the press the intolerable
burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the
accuracy of every reference to a name, picture or portrait".
But the requirement of malice would not extend to the defamation of a private person who was not a
'public figure'.54 Proof of negligence would suffice for recovering damages. 55
U.K.
(B) England.--Libel is an actionable wrong56 as well as an indictable offence (Libel Act, 1983) when
there is a danger to the public peace.57
Libel committed in the course of a dramatic performance is punishable under the Theatres Act, 1968. 58
The Defamation Act, 1996, has introduced certain new defences to a civil action for libel.
The policies and act s of politicians are clearly in public interest. Silkin v. Beaver-brook Newspapers
Ltd .59 is an important case since it concerned "the right to discuss and criticise the utterances and
actions of public men". In that case, a former cabinet minister sued Sunday Express over remarks by
a political columnist which pointed to the inconsistencies between the ex-minister's speeches in
Parliament and his business interests; the jury decided that defence of fair comment has been
established. In Slim v. Daily Telegraph ,60 fair comment was a defence to an act ion brought
concerning two letters which criticised a company and its legal adviser over the use of cars on a river
side footpath. LORD DENNING said: "When a citizen is troubled by things going wrong, he should be
free to write to the newspaper and newspaper should be free to publish the letter. It is often the only
way to get things put right".
The House of Lords rejected the approach made by American Supreme Court in New York Times v.
Sullivan 61 in Reynolds v. Times Newspapewrs Ltd ..62 In that case, the newspaper sought the
incremental development of the common law by the recognition of a new category of qualified
privilege. This was the category of 'political information' broadly defined to mean "information, opinion
and arguments concerning Government and political matters that affect the people of the UK. It was
argued that malice apart, the publication of such information should be privileged, regardless of the
status and source of the material and circumstances of publication. Although very sensitive of the
need to protect the freedom of expression in a persuasive judgment, it was also thought to be
"unsound in principle" to distinguish political discussions from discussions of the matters of serious
public concern. The House of Lords preferred a solution that enables freedom of speech to be
confined to what is necessary in the circumstances of the case, and one in which having regard to the
admitted or proved facts, the question whether the publication was subject to qualified privilege, is a
matter for the judge". It has since been held that there is no qualified privilege in a newspaper report
alleging corruption by a sports personality.63
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India
(C) India.--Just as every person possesses the freedom of speech and expression, every person also
possesses a right to his reputation which is regarded a property. Hence, nobody can so use his
freedom of speech or expression as to injure another's reputation. 'Laws penalising defamation do not,
therefore, constitute infringement of the freedom of speech, because of Cl. (2) of Art. 19."
The criminal law of defamation as contained in s.. 499 of the Indian Penal Code recognizes no
distinction between defamation in the spoken and the written forms, or between defamatory
statements addressed to the ear or to the eye. Even as regards the civil remedy of damages, so far as
the mofussil is concerned, the artificial distinction of English common law is not applicable and action
lies for spoken defamation without special damages. 64
The expression 'in the interests of defamation' seems to be wide enough to cover 'blackmailing' which
consists in a 'threat' to publish defamatory matter65with the object of inducing the person so
threatened, to deliver any property or valuable security or to do anything which he is not legally bound
to do or to omit to do any act which he is legally entitled to do. 66
Existing Indian Law.--The criminal law relating to defamation is contained in s. 499 of the Indian
Penal Code .67 The civil law relating to defamation is still uncodified in India and follows the English
common law subject to differences noted above. Under Sections 3(a) of the Dramatic Performances
Act (XIX of 1876), a dramatic performance may be prohibited if it is of a defamatory nature.
Legislation by Parliament.--The Prevention of Publication of Objectionable Matter Act, 1976, which
provided against the printing and publication of 'objectionable matter', has been repealed in 1977.
Invasion of privacy by publication
U. K.
In the U.K., since there is no constitutional right, and the common law does not recognise any right to
privacy, "newspapers are free to obtain' and publish details of private lives without any public interest
justification."68 The victim has no legal remedy unless the case can be brought under any of the
causes of action acknowledged by the law of torts.69 Though there is no general right to privacy as
such in English common law, privacy has been described judicially as "fundamental". 70 But right to
privacy is to be found in ECHR at article 8. This article provides (1) Everyone has the right to respect
for his private and family life, his home and his correspondence; (2) There shall be no interference by
the public authority with the exercise of the right except such as is in accordance with the law and is
necessary in a democratic society in the interest of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedom of others. English law had no separate right to privacy,
regarding privacy as a value that influences specific causes of act ion, most importantly "breach of
confidence".71 Breach of confidence means disclosure of secrets and personal information. An
injunction can be obtained from breach of confidence where the following three conditions are
satisfied.72(1) The information is confidential in character. In Campbell v. MGN Ltd .,73 the House of
Lords held that privacy lay at the breach of confidence. It was suggested that information is
confidential whose disclosure violates "a reasonable expectation of privacy". (2) The information must
have been imparted in circumstances imposing an obligation of confidence, for example, it was
imparted for a limited purpose. Confidentiality is now more linked with privacy and the courts have
acknowledged the influence of ECHR. The claimant must, however, establish that the relevant
information was acquired in circumstances where a reasonable person would have realised that it was
confidential.74(3) There must be an unauthorised use of relevant information by the confident to a third
party with the knowledge of confidence and for a purpose other than that for which it was imparted. 75
There is a defence that disclosure of the relevant material was (a) in the public interest, and (b) that
this outweighs the interest in preserving confidentiality. In case involving press intrusion, privacy is
currently given a high level protection.76 Privacy must also be balanced against freedom of
expression.77
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In England, the civil law (Law of Torts) requires that a person who receives some information from
another, 'in confidence' shall not misuse such confidential information to the detriment of the person
who had confided the information to him. The sanction against wrongful disclosure of confidential
information is an action for breach of confidence in which damages and injunction may be awarded in
proper cases. It is in the public interest that confidence should be respected. 78 In common law, this
limitation to a person's freedom of expression depends upon the existence of a "confidential
relationship" between the person who has received the information and the person who has given it
e.g., lawyer and his client, employer and employee as to trade secrets, between husband and wife,
doctor and patient, banker and customer.79 But courts have refused to acknowledge such confidential
relationship between a newsman and his source of information - on the ground that the press has no
special privilege and stands in the same position as any other private person under ordinary law. 80
As regards the Government or a public official obtaining information confidentially, principle of
Constitutional Law has been imported to hold that right to know or to obtain information flowing from
the Fundamental Right to Freedom of expression, shall not entitle an individual or the Press to compel
Government or its officials who have obtained confidential information from a third party--whether it
relates to national security or not. (e.g., relating to cabinet deliberations)81 to disclose that confidential
information. Thus, in England, no court can ask the Government or any public official to produce
cabinet papers until a considerable period of time has lapsed owing to which they may be presumed
to have lost their confidentiality.
This principle has been extended to all official papers containing information which has been obtained
by a public official on the assurance of confidentiality. But, outside the category of cabinet papers, it is
for the court to weigh the balance between two interests, viz., the need to maintain the confidentiality
e.g., it relates to national security82 or protection of public service83 and a countervailing public interest
demands production of the paper e.g., due administration of justice;84 prevention or detection of crime85
or in the case of Government secrets, the public interest in a free society, that the working of
Government should be open to public scrutiny and criticism.
The court will not restrain the publication of confidential information, when it has ceased to be
confidential, for instance, where such information has been already made public by the confider
himself86 or some other person87 because in such a case, the publication of such information would no
longer be prejudicial to the public interest or in the interest of parties to the confidential information.
Briefly speaking, an information ceases to be confidential when it has become public property and
public knowledge. Nor would confidence be protected when to do so would be to cover up some sort
of wrongdoing or "inequity".
In the law of torts, of course, there is no justification on the ground of 'public interest' in the publication.
But, of late, the Courts have introduced this justification where the information published is
confidential, i.e., obtained in breach of confidence.88
It is to be noted that if Lord Dennings's dissenting opinion, 89 that in view of Art. 8 of the European
Convention on Human Rights, a common law right to privacy should be acknowledged in England, be
established, 'in certain circumstances' it may take 'priority over the freedom of the press', e.g., in the
case of confidential information.90
U.S.A.
In the U.S.A., a right of privacy has come to be recognised as a constitutional right, 91 so that the
question arises as to what weight should be given to it when confronted with the freedom of the Press
to pub-publish news or information relating to public affairs.
From the few Supreme Court decisions so far, it appears that the Court applies in this sphere,
principles similar to that in cases of defamation, even though the invasion of privacy by the Press, in
the given case, may not amount to defamation. That standard is that because of the public interest in
free information through the Press.92 It should be treated as 'an essential incident of life' 93 in modern
society, so that the Press should not be liable for invasion of the private, right of privacy, except where
the information published was knowing or reckless falsehood.94
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Where the information published is from court records, the Press need not bother to further inquire
whether the information was reportable or not.
It seems that in this sphere, the protection given to the Press 95 in the U.S.A., is greater, than that to an
individual under the law of torts.
"Public men are, as it were, public property" and "discussion cannot be denied and the right as well as
duty of criticism must not be stifled".96
It was held that "any criticism of this manner in which a public official performs his duties will tend to
affect his private as well as public reputation. The New York Times rule i.e., The New York Times Co.
v. Sullivan ,97 is not rendered inapplicable merely because an official's reputation as well as public
reputation, is harmed. Anything which might touch on an official's fitness for office is relevant. In that
case (New York Times v. Sullivan ), the Court said that the First Amendment abolished the crime of
sedition, libel and permits even vehement, caustic and unpleasant sharp attacks on the Government
and public officials. Because, erroneous statements are unavoidable in the heat of public debate "a
rule of compelling the critic of official conduct to guarantee the truth of his factual assertion would
unjustifiably inhibit discussion of public affairs. Even false statements about official conduct, therefore,
enjoy constitutional protection unless they are made with "actual malice", that is, with knowledge that
they were false or with reckless disregard of whether or not they were false". At the same time, courts
continued to distinguish between public figures and private individuals. In Huskler Magazine v. Falwell
,98 the case involved a parody of an advertisement depicting Jerry Falwell, a prominent religious
leader, as having had sexual relationship with his mother. Supreme Court unanimously ruled that
Falwell as a public figure could not collect damages for infliction of emotional distress because the
parody did not pretend to be factual and hence did not involve "actual malice" as required in Sullivan's
case. In Florida Star v. BJF ,99 the court held that Florida could not make a newspaper liable for
publishing the name of a rape victim (though law prohibits the same) that the newspaper had obtained
from a public police report. Court did not find favour with the finding that because of State's
negligence, the victim is entitled to compensation. Court said: "I do not accept this result. By holding
the protecting a rape victim's right to privacy is not a state interest of the highest order; the court
obliterates the tort of the publication of private facts. There is no public interest in publishing the
names, addresses and phone number of persons who are victims of crime - and no public interest in
immunizing the press from liability in the rare cases where the State's effort to protect a victim's
privacy have failed".
In the USA, Press cannot be restrained from or penalized for publishing confidential information which
has been lawfully obtained e.g., to judicial proceedings1 or other records open to public.2 For personal
attributes are more germane to fitness for office than dishonesty, malfeasance or improper motivation,
even though these characteristics may also affect the official's private character". 3 The case related to
a press conference by District Attorney at which he attributed a large backlog of pending criminal
cases to the inefficiency, laziness and excessive vacation of judges and accused the judges of various
shortcomings. Though the lower court found the District Attorney guilty of defamation, the US
Supreme Court set aside the conviction.4
Another point to be noted is that when a conflict arises between the exercise of one person's right to
make demonstrations (in exercise of his freedom of expression) and the right of another person to
protect his privacy from interference by the former, the Court has to balance the two interests. 5
In the process of such balancing, the Court has made a distinction between intrusion into privacy by
commercial6 and non-commercial7 activities in exercise of the freedom of expression.
India
In India, the position was similar to that in England, so long as there was no right to privacy as such.
"It is almost too obvious to need stating that those who hold office in Government and who are
responsible for public administration must always be open to criticism. Any attempt to stifle or fetter
such criticism amounts to political censorship by the most insidious and objectionable kind. At the
same time, it is no less obvious that the very purpose of criticism leveled at those who have the
conduct of public affairs by their political opponents is to undermine public confidence in their
 172

stewardship and to persuade the electorate that the opponents would make a better job of it than
those presently holding office. In the light of these considerations, their Lordships cannot help viewing
a statutory provision which criminalizes statements likely to undermine public confidence in the
conduct of public affairs with the utmost suspicion.8
In England, there is no such thing as a constitutional guarantee of freedom of speech and press. The
law is contained in the Defamation Act, 1996, which gave effect to the recommendations of the
Supreme Court Procedure Committee 1991, chaired by NEILL LJ. (Neill Committee). The Neill
Committee was opposed to the introduction of a defence similar to the public figure defence
enunciated by the Supreme Court in The New York Times Co. v. Sullivan .9 See Reynolds v. Times
Newspaper ,10 wherein it was held: "Protection of reputation is conducive to the public good. It is in the
public interest that the reputation of public figures should not be debased falsely. In the political field,
in order to make an informed choice the electorate needs to be able to identify the good as well as the
bad. Consistently with these considerations, human rights convention recognise the freedom of
expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed
by law and are necessary in a democratic society for the protection of the reputation of others.
The principle laid down in the Sullivan's case11 applies equally to criminal sanction for criticism of the
official conduct of public officers; it has also been applied to public figures including judges. 12
The Human Rights Act, 1998 (s.12) which came into force in October 2000, Article 10 of the European
Convention for the Protection of Human Rights and Fundamental Freedom which among others
assure freedom of expression and press have now become part of law of England.
But once a fundamental right to privacy is deduced from Art. 19(1)(d) 13 or Art. 21,14 we may have to
turn to American decisions (above) for guidance to reconcile it with the freedom of the press.
Supreme Court has declared and summarised the law thus: "(1) The right to privacy is implicit in the
right to life and liberty guaranteed to citizens of the country by Article 21. It is a "right to be let alone". A
citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood,
child-bearing and education among other matters. None can publish anything concerning the above
matters without his consent - whether truthful or otherwise and whether landatory or critical. If he does
so, he would be violating the right to privacy of the person concerned and would be liable in an act ion
for damages. Position may, however, be different if a person voluntarily thrusts himself into
controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to an
exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such
publication is based upon public records including court records. This is for the reason that once a
matter becomes a matter of public record, the right to privacy no longer subsists and it becomes
legitimate subject for comment by press and media among others. We are, however, of the opinion
that in the interest of the decency [Art. 19(2)] an exception must be carved out to this rule, viz., a
female who is a victim of sexual assault, kidnap, abduction or a like offence should not further be
subjected to the indignity of her name and the incident being published in press or media. (3) There is
yet another exception to the rule in (1) above - indeed this is not an exception but an independent rule.
In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for
damages is simply not available with respect to their act s and conduct relevant to the discharge of
their official duties. This is so even when the publication is based upon facts and statements which are
not true, unless the official establishes that the publication was made (by the defendant) with reckless
disregard for truth. In such a case, it would be enough for the defendant (member of press or media)
to prove that he acted after a reasonable verification of the facts. It is not necessary for him to prove
that what he has written is true. Of course, where the publication is proved to be false and act uated
by malice or personal animosity, the defendant would have no defence and would be liable for
damages. At the same time, court also ruled that as regards their private life, a proper balancing of
freedom of press as well as right to privacy and defamation have to be done in terms of the
democratic way of life laid down in the Constitution. Court also ruled that neither the State nor its
officers have any authority to impose any prior restraint on publication of any matters in the press on
the ground that it is defamatory of State or its officers. Their remedy lies only after publication by way
of suit for damages for defamation. It is equally obvious that in matters not relevant to the discharge of
his duties, the public official enjoys the same protection as any other citizen as explained in (1) and (2)
 173

above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of
court and Parliament and legislatures protected as their privileges are by Arts. 105 and 104
respectively of the Constitution of India represent, exception to the rule. (4) So far as the
Government, local authority and other organs and institution exercising Governmental power are
concerned, they cannot maintain a suit for damages for defaming them. (5) Rules 3 and 4 do not,
however, mean that Official Secrets Act 1923 or any similar provision having the force of law does
not bind press or media. (6) There is no law empowering the State or its officials to prohibit or to
impose a prior restraint upon the press or media.15
Court also held: "So far as freedom of Press is concerned, it flows from the freedom of speech and
expression guaranteed by Art. 19(1)(a). But the said right is subject to reasonable restriction placed
thereon by an existing law or a law made after the commencement of the Constitution in the interests
of or in relation to the several matters set out therein. Decency and defamation are two of the grounds
mentioned in Art. 19(2). Law of Torts providing for damages for invasion of the right to privacy and
defamation under s. 499 /500 of IPC are existing laws saved by clause (2). But what is called for
today - in the present times - is a proper balancing of the freedom of the Press and said laws
consistent with the democratic way of life ordained by the Constitution. Over the last few decades,
Press and electronic media have emerged as major factors in our nation's life. They are still expanding
and in the process becoming more inquisitive. Our system of Government demands - as do the
system of Govt. of United States and United Kingdom--constant vigilance over exercise of
Governmental power by the Press and media among others. It is essential for a good overnment. At
the same time, we must remember that our society may not share the degree of public awareness
obtaining in the UK or USA. The sweep of First Amendment to US Constitution and freedom of speech
and expression under Constitution is not identical, though similar in their major premises. All this may
call for some modification of the principle emerging from the English and United States decisions in
their application to our legal system".
In Derbyshire County Council v. Times Newspaper Limited ,16it was held by the House of Lords that
under Common Law, a local authority did not have the right to maintain an act ion for damages for
defamation as it would be contrary to the public interest for the organs of the Government whether
central or local, to have that right. Not only was there no public interest favouring the right of
Government organs to sue libel, but it was of the highest public importance that a Government body
should be open to uninhibited public criticism and a right to sue for defamation would place an
undesirable fetter on freedom of speech.
In Kartar Singh v. State of Punjab ,17 it was observed: "So far as these individuals were concerned,
they did not take any notice of these vulgar abuses and appeared to have considered the whole thing
as beneath their notice. Their conduct in this behalf was consistent with the best traditions of
democracy. Those who occupy a public position must not be too thin-skinned in reference to
comments made upon them. It would often happen that observations would be made upon public men
which they know from the bottom of their hearts were undeserved and unjust; yet they must bear with
them and submit to be misunderstood for a time. COCKBURN CJ in Scymour v. Butterworth ,18
followed whoever holds a public position renders himself open thereto. He must accept appendage to
this office.19 Public men in such position may well think in worth their while to ignore such vulgar
criticism and abuses hurled against them rather than give importance to the same by prosecuting the
persons responsible thereto.
The Madras High Court discussed the entire law on this issue in R. Rajagopal @ R.R. Gopal @
Nakkeran Gopal v. J. Jayalalitha ,20 wherein it was observed: "In a free democratic society those who
hold office in Government and who are responsible for public administration must always be open to
criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most
insidious and objectionable kind". In that case, the Court agreed that scrutiny of public figures by
media should not reach a stage where it amounts to harassment to public figures and their family
members and they must be permitted to live and lead their life in peace. But at the same time, the
public gaze cannot be avoided which is necessary corollary of their holding public office. The Court
said that if an article purely relates to personal life of public figure, it would be necessary for the
member of the Press or media to publish such article only after a reasonable verification of facts.
 174

Under Section 499 of the Indian Penal Code , only such imputations as are malicious and reckless
and not for public good, tranquillity or peace or public security or as are not made in good faith have
been brought within 'defamation' which is but abuse of freedom of speech and expression punishable
under Section 500 IPC . Hence the provision is not violative of Art. 19. The Constitution does not
grant immunity from all punishments for abuse of freedom of speech and the accused can be put to
answer criminally for breach of reasonable restrictions on his freedom of speech or for his abuse of
the freedom of speech. Punishment is not a restriction in itself, but is indeed a consequence of the
breach of restriction which the defaulter cannot escape. 21
Just as every person possesses the freedom of speech and expression, every person also possesses
a right to reputation which is regarded as property. Hence nobody can so use his freedom as to injure
another's reputation.22 Reputation is a sort of right to enjoy the good opinion of others and is a
personal right and an injury to reputation is a personal injury. It is protected under Art. 21 included in
right to life. Right to freedom of expression under Art. 19(1)(a) is subject to right to reputation of
others. A good reputation is an element of personal security and is protected by the Constitution
equally with the right to enjoyment of life, liberty and property. Reputation is "not only the salt of life but
the purest treasure and most precious perfumer of life". 23
Of course, so long as no legislation is undertaken, we shall have to depend upon the law of Torts to
found an action for trespass to privacy.
U. K.
VIII. Incitement to an offence.--This is another ground of restriction, added by the Constitution (First)
Amendment Act, 1951.
(A) England.--To solicit or incite another to commit a felony or misdemeanour is indictable at common
law, even though the solicitation or incitement has no effect, 24e.g., where the addressee does not even
read the letter, containing the incitement. Even an attempt to incite the commission of such offence is
indictable.25 Thus, it is not only illegal to send a challenge to fight, but even to attempt to provoke
another to send such a challenge is an offence.26 Provoking another to acts of violence by mischievous
libels, including even libels reflecting on the memory of the dead, burning effigies etc., are offences on
the same ground. Incitements to commit certain crimes is also punishable by statute, 27e.g., incitement
to mutiny, murder, offences against Post Office laws, Prison Act. It is a misdemeanour to incite
commitment of murder even though it is contained in a newspaper article which is not addressed to
any particular person. Under s. 12 of the Race Relations Act 1968, inciting another person to do any of
the acts prohibited by the Act, is an offence.28
U.S.A.
(B) U.S.A.--Incitement to commit a crime, e.g., murder, is punishable.29
The Supreme Court has said--
".. neither Hamilton, nor Madison, nor any other competent person, then or later, ever supposed that
to make criminal the counselling to murder ...... would be an unconstitutional interference with free
speech."30
"If the act (speaking, or circulating a paper), in tendency and the intent with which it is done, are the
same, we perceive no ground for saying that success alone warrants making the act a crime." 31
Similarly, it is permissible to penalise the incitement to violate a law against indecent exposure. 32
But--

22a)  the Court has refused to uphold a statute which made it an offence to punish
or distribute any publication principally made up of 'criminal news, police reports or
accounts of criminal deeds or pictures or stories of deeds of bloodshed, lust or crime', on
the ground that it did not furnish a definite standard of guilt. 33 It would follow from the
decision, however, that, the Court would have upheld the validity of the statute if it had
defined criminal deeds', 'deeds of bloodshed, lust or crime' and the like.
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23b)  Mere advocacy or abstract teaching of the use of force is to be distinguished

from incitement to produce imminent violent action. The latter is punishable but not the
former because it would be covered by the guarantee of freedom of expression. 34
India
(C) India.--The use of the word 'offence' gives a very wide scope to the exception. An attempt to
substitute 'crimes of violence' failed.
In the absence of any definition of offence in the Constitution, the definition contained in Sections
3(38) of the General Clauses Act shall apply:
" 'Offence' shall mean any act or omission made punishable by any law for the time being in force."
The word "offence" generally implies infringement of 'public duty' as distinguished from mere private
rights punishable under Criminal Law.35 Contempt of Court is not an offence within the meaning of s. 4
of CrPC .36
The Newspapers (Incitement to Offences) Act, 1908 is an Act to prevent murder and other offences.
Under s. 3 of that Act, a Magistrate is empowered, if he is of opinion that a newspaper printed or
published within the Province contains any incitement to murder or to any offence under Explosive
Substance Act 1988 or to commit any act of violence, to make a conditional order declaring the
printing press used, or intended to be used for the purpose of printing or publishing such newspaper is
or at the time of printing of the matter complained of was, printed and call copies of such newspaper,
wherever found be forfeited to His Majesty.
Hence, under the present exception, our Legislature shall be competent to enact that incitement to
commit any offence punishable under any law,--Central or State, general, special or local--shall be
itself an offence. In short, the incitement of whatever is prohibited (mala prohibita) may be made an
offence. Thus, the withholding of services by a Police-officer being an offence under the Bombay
Police Act , 1951; inciting a Police officer to withhold his services, would be punishable under the
present ground.37 The expression "incitement to offence" was added by First Amendment and refers to
offence and not violence. Words, signs, visible representation which incited or tend to incite persons to
commit murder or any cognizable offence were made punishable by a Bihar Law, and when
challenged, was upheld as a reasonable restriction.38 What would amount to an incitement would be a
question of fact and will have to be decided in each and every case by court. The court, it is expected,
will always take into consideration the condition of contemporary society. The following observations
of LORD SUMNERare appropriate in this context: "The words as well as the act s which tend to
endanger society differ from time to time in proportion as society is stable or insecure in fact, or is
believed by its reasonable members to be open to assault. After all, the question is whether a given
opinion is a danger to society is a question of time and is a question of fact. 39 In Bowman's case,40 the
Court also held that an attack on or denial of the truth of Christianity unaccompanied by vilification,
ridicule or irrelevance was not contrary to law, it came to be assumed that the gist of the offence of
blasphemy lay in a tendency to cause a breach of the peace and prosecutions were rare.
It is imperative that if any individual or group of persons by their action or caustic and inflammatory
speech are bent upon sowing the seed of mutual hatred and their proposed act ivities are likely to
create disharmony and disturb the equilibrium, sacrificing public peace and tranquility, strong action
and more so, preventive act ion are essentially and vitally needed to be taken. Any speech or action
which would result in ostracisation of communal harmony would destroy all those high values which
the Constitution aims at. Therefore, whenever the authorities concerned in charge of law and order
finds that a person's speeches or act ions are likely to trigger communal antagonism and hatred
resulting in fissiparous tendencies gaining foothold, undermining and affecting communal harmony,
prohibitory orders need necessarily be passed to effectively avert such untoward happenings. No
person, however big he may assume or claim to be, should be allowed, irrespective of the position he
may assume or claim to hold in public life, to either act in a manner or make speeches which would
destroy secularism recognised by the Constitution. Communal harmony should not be made to suffer
and be made dependent upon the will of an individual or group of individuals, whatever be their
 176

religion, be it of a minority or that of the majority. Persons belonging to different religion must feel
assured that they can live in peace with persons belonging to other religion. 41
In R v. Chief Metropolitan Stipendary Magistrate exparte Choudbury ,42 the case concerned an attempt
to bring criminal charges against Mr Salman Rushdie, author of The Satanic Verses. It was alleged
that the publication constituted seditious libel on the ground that it raised widespread discontent and
disaffection among Her Majesty's subjects, contrary to common law. When the Magistrate refused to
issue the summons, the applicant sought judicial review of his decision, thereby providing an
opportunity for reconsideration of the scope of seditious libel. Agreeing with the Magistrate, the
Divisional Court while following the decision of Supreme Court of Canada in Boucher v. R 43 wherein it
was held that "the seditious intention on which a prosecution for seditious libel must be founded is an
intention to incite violence or to create public disturbance or disorder against His Majesty or the
institution of Government. Apart from thus reinforcing the requirement of an intention to promote
violence, this indicates a further qualification, namely, that sedition can be no longer constituted by an
intention to promote feelings of ill-will and hostility between different classes of subjects. It was
observed: "...not only must there be proof of incitement to violence in such cases, but it must be
violence or resistance or defiance for the purpose of disturbing constituted authority. In this case,
given the absence of any element of attacking, obstructing or undermining public authority, the court
held that the Magistrate was bound not to issue the summons".
'Incitement to an offence' as a ground for reasonable restriction was added in 1951. Obviously
freedom of speech cannot confer a licence to incite people to commit offences. During the debate on
this clause, in Parliament, it was suggested that the phrase should be "incitement to violence" as the
word "offence" is a very wide expression and includes any act which is punishable under Indian Penal
Code . The suggestion was rejected.44
If a speech or a writing incites people to violence, it would come within the definition of sedition in s.
124A of IPC . The gist of the offence of sedition is incitement to violence. The operative of the section
is limited to activities involving incitement to violence or intention or tendency to create public disorder
or cause disturbance to public peace. So construed, s. 124A of IPC is saved by Art. 19(2) and is not
unconstitutional. Each one of the constituent elements of provisions of s. 505 IPC has reference to
and direct effect on the security of State or public order. The restrictions imposed by the section are
reasonable and are saved by Art. 19(2) of the Constitution. Legitimate ventilation of grievances and
strong and vigorous criticism of the measures or acts of Government which do not incite violence or
the tendency to create public disorder are permissible and outside s. 124A and 505 of IPC . 45
The applicability of this ground is, however, Governed by the following conditions:
Firstly, the impugned law imposing restriction upon advocacy or incitement must relate to a pre-
existing offence; in other words, the incitement, in order to be punishable, must be of an act which is,
at the time of the offence, already an offence under any law for the time being in force. Hence, an
incitement cannot be restricted under the present ground if the act or omission which is incited does
not constitute an offence, e.g., non-payment of land revenue or other similar dues of the
Government.46 It is to be noted that incitement to refuse or defer payment of any Government dues
was made an offence punishable under the Defence and Internal Security, Rules, 1971, which have
since expired.
Secondly, in order to be saved by the present clause, the legislation must be levelled against a
'definite offence'. It would not be a valid restriction of the freedom if it is vague. Thus, in State of
Bombay v. Balsara ,47 the Supreme Court held that the prohibition of incitement or encouragement of
any member of the public to commit any act 'which frustrates or defeats the provisions of this Act or
any rule, regulation or order made thereunder' is too wide and vague, to be justified by Cl. (2) of Art.
19.
What constitutes 'incitement' will have to be determined by the Court with reference to the facts and
circumstances of each case. "To incite" is defined by Webster as "to move to action; to stir up ; to
arouse; to spur on". Thus, an instruction containing the words "requested, advised and incited, was
held equivalent to the statutory words "aid, abet or procure".
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'Incitement' is the act or an instance of provoking, urging on, stirring up - the act of persuading another
person to commit a crime.48
An inciter is one who counsels, commands or advises the commission of a crime. It will be observed
that this definition is much the same as that of an accessory before the fact. What, then is the
difference between the two? It is, that in incitement, the crime has not (or has not necessarily) been
committed, whereas a party cannot be an accessory in crime unless it has been committed. An
accessory before the fact is party to consummated mischief; an inciter is guilty of an inchoate crime. 49
The distinction made, in the U.S.A., between mere advocacy of and incitement to violence has just be
noted above. Again, the mere portrayal of existing evils cannot be construed as criminal incitement to
disobey the existing law, however mistaken may be the assumptions of the writer or speaker, however
unsound his reasoning or however intemperate his language. 50
The words as well as act s which tend to endanger society, differ from time to time in proportion as
society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In
the present day, meetings and processions are held lawful which 150 years ago would have been
deemed to be seditious and this is not because the law is weaker or has changed, but because the
times have changed, society is stronger than before.51
In India, too, it has been held52that mere approval or admiration of an act of murder or of violence, say,
in a literary or historical work, shall not come within the scope of the present clause, unless such
writing itself has a present tendency to incite or encourage the commission of such offence. It cannot
be held as a general proposition that in all cases of admiration or approval of an offence or offender
there must be a tendency to encourage violent offences. The Court has to look to the circumstances in
each case in judging such a tendency, viz., the purpose of the work, the time at which it was
published, the class of the people who would read it, the effect it would produce on their minds, the
context in which the objected words appear and the interval of time between the incidents narrated
and the publication of the work. Thus,
An article in a newspaper expressing approval or admiration of the conduct of certain women in
defending themselves against the high-handedness of the police, in exercise of their right of private
defence, was held not to constitute incitement of an offence. 53
The biography of a living person containing the narrative of a revolutionary movement which took
place 35 years ago and which has now passed into history, would not come within the mischief of the
present clause.54
Subject to the above, 'incitement' may be committed by giving advice, encouragement, persuasion, or
threat or brining pressure to bear on a person. 55
New York criminal anarchy law punishes advocacy of the doctrine that organised Government should
be thrown by force or violence or by assassination or by unlawful means "advocating, advising or
teaching" duty, necessity or propriety of overturning organised Government by force or violence and
printing, publishing or distributing written or printed matter in any form, containing the doctrine that
organised Government should be overthrown by force, violence or any unlawful means. In Gitlow v.
New York ,56Gitlow is a member of Left Wing section of Socialist Party. A manifesto was published in
their newspaper "Revolutionary Age". In that publication, there was Left Wing Manifesto and also
Communist Programme. There was no evidence of any effect from the publication and circulation of
the manifesto. Extract of Manifesto said that Revolutionary Socialism insists that it is necessary to
destroy the parliamentary State, and construct a State of the organised producers which will deprive
the bourgeoisie of political power and function as a revolutionary dictatorship of proletariat. The
question was when there was no effect on such publication, the statute cannot be used to penalise
mere utterances of doctrine "having no quality of incitement". Thus, it violates free speech clause of
the First Amendment.
The Court said that freedom of speech does not confer an absolute right to speak or publish without
responsibility, whatever one may choose. A State may punish utterances endangering the foundation
of organised Government and threatening its overthrow by unlawful means. Free speech does not
deprive a State of the primary and essential right of self-preservation. Such utterances were sufficient
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to punish the publisher and the law does not violate First Amendment. Niharendu v. Emperor 57 was a
case where a meeting was held to commemorate an incident which took place 23 years before the
date, which occasion was made use of by the speaker to launch an attack upon the Ministry and
Governor of Bengal for their act s and omissions in the matter of Dacca Riots. The speech was
interpreted by the trial Magistrate and the High Court as suggesting or to encourage communal
disturbances. Federal Court set aside the conviction and held: "Abusive language even when used
about a Government is not necessarily seditious, and there are certain words and phrases which have
so long become the stock-in-trade of the demagogue as almost to have lost all real meaning...That the
appellant expressed his opinion about that system of Government is true, but he was entitled to do so;
and his references to it were, we might almost say, both common-place and in common form and
unlikely to cause any Government in India a moment's uneasiness". 58
In Romesh Thapper v. State of Madras ,59 the Supreme Court considered the effect of deletion of the
word "Sedition" in Art. 13(2) of the draft Constitution and observed: "Deletion of the word shows that
criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a
justifying ground for restricting freedom of expression and of the press unless it is such as to
undermine the security of or tend to overthrow the State. It is also significant that the corresponding
Irish formula of 'Undermining the public order or the authority of the State' (Art. 40(b)(i) of the
Constitution of Eire, 1937) did not apparently find favour with the framers of the Indian Constitution.
Thus, very narrow and stringent limits have been set to permissible legislation abridgement of the right
to free speech and of the press lay at the foundation of all democratic organisation, 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 invoke risks of abuse. Therefore,
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 of Art.
19(2), although the restriction which it seeks to impose may have been conceived generally in the
interests of public order". It was held that the expression "public order" is of wide connotation and
signifies state of tranquillity which prevails among the members of a political society as a result of
internal regulations enforced by the Government which they have established.
Articles 25 and 26 in terms contemplate that restrictions may be imposed on the rights guaranteed by
them in the interests of public order. If a thing disturbs the current life of the community and does not
merely affect an individual, it would amount to disturbance of the public order. Thus, if an attempt is
made to raise communal passions e.g., on the ground that someone has been "forcibly" converted to
another religion, it would in all probability, give rise to an apprehension of a breach of public order,
affecting community at large.60
Constitutionality of Section 153A of IPC was considered by various High Courts wherein it was held
that what is contained in sub-clause (a) of Clause (1) of Art. 19 of the Constitution is subject to what is
contained in sub-clause (2). Consequently, if any piece of legislation is made in the interest of public
order or in relation to incitement to an offence would be valid. It was held that the restriction imposed
under Section 153A is a reasonable restriction. It is not necessary to prove that as a result of the
objectionable matter, enmity or hatred was in fact caused between different classes. Intention to
promote enmity or hatred apart from writing itself is not a necessary ingredient of the offence. It is
enough to show that the language of the writing is of a nature calculated to promote feeling of enmity
or hatred. (Section 153A of IPC prohibits any attempts and any act spoken or written or by signs
which are likely to promote enmity between different groups on grounds of religion, race, place of
birth.61 The legislature contemplates that the words spoken or written which also promote hatred would
create sufficient mischief so as to fall within the scope of s. 153A of IPC and it is not necessary for
the State further to establish that the writer had the intention to promote hatred. Even if a question of
intention were to arise, such intention must be gathered from the written words and they themselves
would be conclusive and it would not be necessary for the State to further prove that such an intention
was obtained by the use of such words.62
Similarly, s s. 124A and 505 of IPC which deal with offences as to sedition and statements conducive
to public mischief respectively were held to be valid and reasonable restriction on the freedom of
speech and expression in Kedar Nath Singh v. State of Bihar .63
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As per the said law, "it is only when the words written or spoken, etc. which have the pernicious
tendency or intention of creating public disorder or disturbances of law and order that the law steps in
to prevent such activities in the interest of public order". It was further observed that "the act ion, in our
opinion strikes the correct balance between individual's fundamental right and the interest of public
order".
Learned Judge Fazal Karim in his book Judicial Review of Public Action has observed that even the
liberal approach in Kedarnath's case by our Supreme Court will not stand scrutiny in the light of the
law developed in America, subsequent to Schenck v. U.S .64 In Brandenbury v. Ohio ,65it was held that
for a conviction for incitement three ingredients must be proved known as "Brandenbury Test". (1) The
speaker subjectively intended incitement, (2) In context, the words used were likely to produce
imminent lawless act ion. (3) The words used by the speaker objectively encouraged and urged and
proved "imminent action". The State may not forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent lawless action and
is likely to incite or produce such act ion. Mere teaching of abstract doctrines, the Court noted, was not
like leading a group in a violent action. Moreover, the statute must be narrowly drawn and if it failed to
distinguish between advocacy of a theory and advocacy of act ion, it abridged First Amendment
freedom".66
On the other hand, 'violence'67 is not an essential element of the present ground of restriction,--the
incitement of any 'offence', as defined by Sections 3(38) of the General Clauses Act , may be
legitimately restricted by the legislature, under the present Clause.
In short,--
This ground will permit legislation not only to punish or prevent incitement to commit serious offences,
like murder which lead to breach of public order, but also to commit any 'offence' 68 which according to
the General Clauses Act , means 'any act or omission made punishable by any law for the time being
in force'. Hence, it is not permissible to instigate another to do any act which is prohibited and
penalised by any law. But mere instigation not to pay a tax may not necessarily constitute 'incitement
to an offence.'69
Existing Central Law.--Chapter V of the Indian Penal Code , 1860, provides for the punishment of
'abetment' of an offence and s s. 107-8 lay down that a person abets the commission of an offence if
he instigates70 any person to commit it.
Section 505(1) of the Code provides--
"Whoever makes, publishes or circulates any statement, rumour or report,--

23a)  with intent to cause, or which is likely to cause, any officer, soldier, sailor or
airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in
his duty as such; or

24b)  with intent to cause, or which is likely to cause, fear or alarm to the police or
to any section of the public whereby any person may be induced to commit an offence
against the State or against the public tranquillity; or

16c)  with intent to incite,71 or which is likely to incite any class or community of
persons to commit any offence against any other class or community, shall be punished
with imprisonment which may extend to three years, or with fine, or with both.
Exception.--It does not amount to an offence, within the meaning of this section, when the person
making, publishing or circulating any such statement, rumour or report, has reasonable grounds for
believing that such statement, rumour or report is true and makes, publishes or circulates it in good
faith and without any such intent as aforesaid."
Legislation by Parliament.--The Young Person (Harmful Publications) Act (93 of 1956) [see ante].
Reasonableness of restrictions upon freedom of expression
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I. Substantive aspect
The general principles relating to reasonableness have been explained at see ante. Now we are
examining their applicability to the freedom of expression.
The question whether a restriction is a reasonable restriction cannot be resolved by a 'Litmus paper
test' that will separate valid from invalid restrictions. Instead, the Court must resolve such a challenge
by an analytical process that parallels its work in ordinary litigation. It must first consider the character
and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward
by the State as justification for the burden imposed by its rule. In passing judgment, the Court must
not only determine the legitimacy and strength of each of these interests, it must also consider the
extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all
those factors, the reviewing court in a position to decide whether the challenged provision is
unconstitutional. The results of this evaluation will not be automatic, as we have recognised, there is
no substitute for the hard judgments that must be made. 72
U.S.A.
(A) U.S.A.--I. We have already explained, what is meant in the United States by the expression 'clear
and present danger'. By the application of this test, the American Supreme Court has held that though
incitement to overthrow the State by violence may be punished the propagation of political or
economic theories by a fanatic73 or the circulation of anti-war literature among all sections of the public
generally,74 as distinguished from the armed forces specifically, cannot be punished as acts tending to
overthrow the State. In Schenck v. US ,75 Court said that in every case the question is whether the
words are used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about substantive evils that Congress has a right to prevent. The test
resembles the bad tendency test permitting punishment of speech that produces harmful effect, but it
imposes more exacting criteria for determining harm. The clear and present danger test requires the
Government to demonstrate that the specific speech, in the context in which it occurred, created a
danger to the achievement of permissible Governmental objective and the likelihood of harm are both
substantial (clear) and (proximate) present.
To consider the reasonableness of a legislation, the following three tests are followed: (1) Where the
legislation directly abridges a preferred freedom, the usual presumption of constitutionality is reversed;
that is, the statute or other enactment is assumed to be unconstitutional and this presumption can be
overcome only when the Government successfully discharges the burden of proof. (2) The
Government must show that the exercise of the fundamental right in question constitutes "a clear and
present danger" or advances a compelling interest. (3) The legislature must be drawn in such a way
as to present a precisely tailored response to the problem and not burden basic liberties by its
overbreadth; that means, the policy adopted by the Government must constitute the least restrictive
alternative.
It is by the application of this doctrine that the Court has refused to impose censorship upon a
newspaper, on the ground that it circulates scandal against public officers, though admitting the
validity of providing subsequent punishment for such offence:76

"Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which
tends to disturb the public peace and to provoke assaults and the commission of crime. Charges of
reprehensible conduct, and in particular official malfeasance, unquestionably create a public reandal, but the
theory of the constitutional guarantee is that even a more serious public evil would he called by authority to
prevent publication.77

In Thomas v. Collins ,78 the Court reiterated that so far as free speech is concerned, there can be ban
or restriction or burden placed on the use of such a word except on showing of exceptional
circumstances where the public safety, morality or health is involved or some other substantial interest
of the community is at stake. When the legislation or its application can confine labour leaders on such
occasions to innocuous and obstruct discussion of the virtues of trade union and so be cloud even this
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with doubt, uncertainty and risk of penalty, freedom of speech for them will be at an end. A restriction
so destructive of the right of public discussion without greater or more imminent danger to the public
interest than existed is incompatible with the freedom secured by First Amendment. The Court
concluded that "Free trade ideas" means "free trade in the opportunity to persuade to the act ion, not
merely to declare facts". The court also said in that case that it is basic that no showing merely of a
rational relationship to some colourable State interest would suffice in this highly sensitive
constitutional area, "only the gravest abuses endangering paramount interest give occasion for
permissible limitation".
In Terminiello v. Chicago ,79 the Court said: "...a function of free speech under our system of
Government is to invite dispute. It may indeed best serve its high purpose when it induces a condition
of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is
often provocative and challenging. It may strike at prejudices and preconceptions and has profound
unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not
absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce
a clear and present danger of a serious substantive evil that rises far above public inconvenience,
annoyance or unrest. There is no room under our Constitution, for a more restrictive view. For, the
alternative would lead to standardisation of ideas either by legislation, courts or dominant political or
community groups.
In Forsyth County v. Nationalist Movement ,80 the country adopted an ordinance that required public
demonstrators to pay a fee to be determined by county administrator (but no more than $ 1000 per
day) to cover the cost of added police service necessitated by demonstrators. Court ruled that the
ordinance was facially invalid because it vested standardless discretion in the administrator. Court
said: "There is no articulated standard in the law or established practice. The fee will depend on the
amount of hostility likely to be created by the speech based on its content. But the speech cannot be
financially burdened, any more than it can be punished or banned simply because it might offend a
hostile mob".
II. It may be stated as a general rule (subject to the exceptions to be introduced hereafter) that any
previous restraint imposed upon the exercise of the freedom of speech offends against the First
Amendment.81 Thus, a requirement of registration before making a public speech to enlist support for a
lawful movement is incompatible with the freedom of speech guaranteed by the Constitution. 82 In the
exercise of its power to regulate trade unions for the prevention of fraud and other abuses, the State
cannot trespass upon the domain of free speech and require previous registration for a public speech
merely because the object of the speech is to enlist members for a labour union, 83 if it has no right to
do so where the object of the speech is to rally support for any social, religious or political cause. 84
Conditions like registration or identification may, however, be imposed, if the speaker goes beyond
merely exercising his right of speech, as when he undertakes the collection of funds85 or securing
subscriptions.86 Similarly, even though fraudulent appeals may be issued in the name of charity and
religion, a Municipality may not require that nobody shall disseminate ideas or information to the
homes of citizens without prior approval of the Police. 87
Even taxation, where it is used as a form of censorship of the freedom of speech (e.g., in the form of a
license fee), is unconstitutional,1 even though a speaker or a religious preacher is not exempt from
non-discriminatory taxation.2
III. Neither 'inherent tendency' nor a 'reasonable tendency' to cause a substantive evil is enough to
justify a restriction of the freedom of expression3 and the mere rational connection between the
remedy provided and the evil to be curbed, which in other contexts might support legislation against
attack on grounds of due process, will not suffice in the case of freedom of speech. 4 There must be
reasonable ground to fear that serious evil will result if free speech is not restricted and the danger
apprehended must be imminent.5 Speakers may not be prohibited from speaking on the ground that
they may say something which will lead to disorder,6 nor can the right of free speech in the future be
forfeited because of dissociated acts of past violence; 7but the speaker loses the constitutional
protection if he act ually "passes the bounds of argument and persuasion" and undertakes incitement
to riot.8 But in Edwards v. South Carolina 9 and in Cox v. Louisiana ,10 the court overturned the breach-
of-the peace conviction of civil rights activitist whose demonstration had also stirred crowd unrest. In
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Villagle of Skokie v. National Socialist Party ,11 The Court upheld the right of American Nazi party to
demonstrate in Skokie, a predominantly Jewish suburb in which many Holocaust survivors resided.
Although the intention of the demonstration was clearly to provocate, the Illinois court concluded that
US Supreme Court's decision required it to overturn an injunction that would have prevented the
demonstration and display of 'Swastika'.
For the same reason, the State cannot, in the United States, penalise a person for distributing
pamphlets urging unemployment and emergency relief, though the person may have in his possession
Communistic literature;12 make it a crime to publish 'pictures or stories of deeds of bloodshed, lust or
crime'13(on account of the vagueness of the penal statute); 14 forbid the dissemination of information
concerning the facts of a labour dispute15 or picketing, without resort to violence, disorder or coercion, 16
convict persons for displaying the red flag "as a symbol of opposition to organised Government." 17 But
in Dennis v. US ,18 the Supreme Court upheld a conviction of several Communist party leaders for
conspiring to advocate the overthrow of Governent. In that case, the court said: "In each case, the
court must ask whether the gravity of evil, discounted by its improbabilities, justifies such invasion of
free speech as is to avoid danger". To this extent, the doctrine of clear and present danger was
modified.
IV. Advocacy of the abstract doctrine of forcible overthow of the Government cannot be punished,
unless there is an advocacy of 'action', i.e., where "such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such act ion". 19
V. Another ground of unconstitutionality of a restriction on the freedom of expression would be the
vagueness or overbreadth of the restriction which demands a greater scrutiny from the Court when
freedom of expression is at stake.20
But in determining whether a restriction is vague or wide, the Court would allow a greater latitude
when it applies to military personnel.21
India
(B) India.--We have already said that by reason of the word 'reasonable', it will be open to the Courts
to say not only whether the particular activity which is sought to be prevented has got a real,
proximate and reasonable connection with the maintenance of public order 22 and the like, but also
whether the degree of restriction imposed is more than what is necessary to meet the evil 23 or whether
the means adopted is unreasonable or arbitrary.24
(a) Remoteness.
As has been the already seen a restriction cannot be said to be reasonable where its connection with
the ground of restriction is only remote.
Remoteness
This proposition, asserted in Art. 19(2), since finds support from the observations of SUBBA RAO J.,
speaking for the Court in Supdt. v. Ram Manohar,25 where it has been reiterated that "in order to be
reasonable, restrictions must have a reasonable relation 26 to the object which the legislation seeks to
achieve and must not go in excess of that object," and that accordingly, a restriction which has no
"proximate relationship" to the achievement of public order cannot be said to be a reasonable
restriction "in the interests of public order". It was laid down in the pre-Constitution case of R. v.
Basudeva 27 that blackmarketing did not come within the ambit of the statutory expression "reasons
connected with the maintenance of public order". The position was somewhat blurred by certain
observations in Virendra v. State of Punjab ,28which laid more emphasis upon the words 'in the
interests of' in the same clause (2) of Art. 19. But as has been seen the expression 'in the interests of'
does not dispense with test of proximity with the constitutionally permissible ground of restriction; it
merely suggests that once such proximity exists, a threatened; as distinguished from act ual, injury
would be a sufficient ground for reasonable restriction. This has been clarified by the decision in
Supdt. v. Ram Manohar.29
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The true test is whether the effect of the impugned action is to take away or abridge fundamental
rights. If it is assumed that the direct object of the law or act ion has to be direct abridgement of the
right to speech by the impugned law or action, it is to be related to the directness of effect and not to
the directness of the subject matter of the impeached law or act ion. The action may have a direct
effect on a fundamental right although its direct subject matter may be different. 30
In Bennett Coleman & Co. v. Union of India ,31 the Supreme Court, by a majority, reiterated that the
test of 'pith and substance' of the subject matter and of object of legislation were irrelevant to the
question of infringement of fundamental rights and the true test was the 'direct effect' of the impugned
State act ion on a particular fundamental right. The word "direct" goes to the quality or character of the
effect and not the subject matter. In Maneka Gandhi v. UOI ,32 the Supreme Court again emphasised
the relevance of direct effect of the impugned action in adjudging infringement of a particular
fundamental right. JUSTICE BHAGAWATI, after reexamining all earlier cases, added the word
"inevitable" to direct. Learned Judge said: "If the test were merely of 'direct or indirect effect', it would
be an open-minded concept, and the criterion of "inevitable" consequence of effect to quantify the
extent of directness of effect necessary to constitute infringement of a fundamental right. If the effect
of State act ion is direct and inevitable, then a fortiorari, it must be presumed to have been intended by
the authority taking the action and hence this doctrine of direct and inevitable effect has been
described as the doctrine of intended or real effect". For a reasonable restriction, there should be a
direct and proximate connection between the restriction and the object in the interests of which the
restriction is imposed.33 In S. Rangarajan v. P. Jagjivan Ram ,34 which deals with right of censorship of
film, court said: "There does indeed have to be a compromise between the interest of freedom of
expression and special interests. But we cannot simply balance the two interests as if they are of
equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless
the situations created by allowing the freedom are pressing and community interest is endangered.
The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and
direct nexus with the expression. The expression of thought should be intrinsically dangerous to the
public interest. In other words, the expression should be inseparably locked up with the act ion
contemplated like the equivalent of a "spark in a power keg". 35 Where the court applies the test of
'proximate and direct nexus' with the expression, the court also has to keep in mind that the restriction
should be founded on the principle of least invasiveness i.e., the restriction should be imposed in a
manner and to the extent which is unavoidable in a given situation. The court would also take into
consideration whether the anticipated event would or would not be intrinsically dangerous to public
interest.36
Once a film is certified for public exhibition, no further restriction can be imposed by Government and
direct the producer to cut certain portion before public exhibition. The Government has no power to
curtail that freedom after certification by Censor Board. 37
A restriction imposed in any form has to be reasonable and to that extent it must stand the scrutiny of
judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with
the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right of
freedom of speech and expression, it must be within the framework of the prescribed law, as
subscribed by Art. 19(2) of the Constitution. The restriction must be provided by law in a manner
somewhat distinct to the term "due process of law" as contained in Art. 21 of the Constitution. If the
orders passed by the executive are backed by a valid and effective law, the restriction imposed
thereby is likely to withstand the test of reasonableness which requires it to be free from arbitrariness,
to have a direct nexus to the object and to be proportionate to the right restricted as well as
requirements of the society, for example, an order passed under s. 144 of CrPC . For adjudging the
reasonableness of a restriction, factors such as the duration and extent of restriction, the
circumstances under which and the manner in which that imposition has been authorised, the nature
of right infringed, the underlying purpose in the restriction imposed, the extent and urgency of the evil
sought to be remedied, thereby the disproportion of the imposition the prevailing conditions at the
time, amongst others enter into the judicial verdict. 38
It is clear that a restriction cannot he 'reasonable' unless it is rationally or proximately connected with
one or more of the grounds of restriction enumerated in cl. (2). It follows, therefore, that--
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6.  In the 'interests of public order', the State cannot impose restriction upon
utterances of the following kinds merely because they cause some "public
inconvenience, annoyance or unrest", e. g.:39
10. Criticism of a party Government.40
10. Criticism41 of, or defamatory slogan42 against a Minister.
6. Scurrilous attacks upon a Judge,43however gross it might be, could not be
restricted by a law of preventive detention 'in the interests of public order'. If such
attacks imputed gross partiality in the matter of recruiting judicial officers, the
offenders might be hauled up under the ordinary law but they could not be
detained under the Preventive Detention Act which was a special law made for
the maintenance of security of the State and public order. The statements in
question "could not have any rational connection" with the maintenance of public
order, MUKHERJEE J., observed:
16. "The utmost that can be said is that the allegations in the pamphlets are
calculated to undermine the confidence of the people in the proper administration
of justice in the State. But it is too remote a thing to say, therefore, that the
security of a State or the maintenance of law and order in it would be endangered
hereby...After all, we must judge facts by the ordinary standards of common
sense and probability, and it is no answer to say that strange and unexpected
things do sometimes happen in this world."44
4. A mere instigation, without incitement to violence, not to pay the dues of the
Government or any local authority cannot be penalised 'in the interests of public
order'. In striking down s. 3 of the U.P. Special Powers Act, 1932, which had
penalised such inoccous speeches or communications, the Supreme Court
observed:
17. "There is no proximate or even foreseeable connection between such
instigation and the public order sought to be protected under this section. We
cannot accept the argument ..... that instigation of a single individual not to pay
tax or dues is a spark which may in the long run ignite a revolutionary movement
destroying public order. We can only say that fundamental rights cannot be
controlled on such hypothetical and imaginary considerations. It is said that in a
democratic set-up there is no scope for agitational approach and that if a law is
bad the only course is to get it modified by democratic process and that any
instigation to break the law is in itself a disturbance of the public order. If this
argument without obvious limitations be accepted, it would destroy the right to
freedom of speech which is the very foundation of democratic way of life."45

7I.  Similarly, the interests of 'friendly relations with foreign States' would not
justify the suppression of fair criticism, of foreign policy whether of India or that of any
foreign State, or of other matters of public interest.46 National defence and international
relations are related areas and as in the case of national defence, so in the case of
international relations, the Executive is endowed with enormous powers. This power is
largely unchecked by the legislature and judicial branches has been pressed to the very
hilt since the advent of the nuclear age. ... It is for this reason that it is perhaps here that
a press that is alert, aware and free must vitally serve the basic purpose of the First
Amendment and that without an informed and free press, there cannot be enlightened
people".47
6II.  In the interests of decency of morality, likewise, the State cannot penalise
the mere use of abusive language, which has no suggestion of obscenity to the persons
in whose presence they are uttered.48 The scope of the expression "morality" is not very
clear. The conception of morality differs from place to place and from time to time. Thus,
birth control and contraceptives were considered immoral at one time and there have
been convictions for publishing literature dealing with contraceptives. 49 But now the view
has changed and it is no offence to discuss such matters. Rather, use of contraceptive is
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encouraged and subsidized by State. Merely expressing an opinion about pre-marital

sex and the sentiment that society must recognise the same is an exercise of
fundamental right of speech and expression. It may be morally provocative statement,
but not an offence. Morality and criminality cannot be treated coextensive. 50 In S.
Khushboo v. Kanniammal ,51 the Supreme Court said: "Even though the constitutional
freedom of speech and expression is not absolute, and can be subjected to reasonable
restriction, on ground such as "decency and morality" among others, we must lay stress
on the need to tolerate unpopular views in the sociocultural space. The Framers of our
Constitution recognised the importance of safeguarding this right since the free flow of
opinion and ideas is essential to sustain the collective life of the citizenry. While an
informed citizenry is a pre-condition for meaningful governance in the political sense, we
must also promote a culture of open dialogue when it comes to societal attitudes". The
court also said that an expression of opinion in favour of non-dogmatic and non-
conventional morality has to be tolerated as the same cannot be a ground to penalise
the author.
The word "morality" is a wide expression, its dictionary meaning being "the generally
accepted standards of goodness or rightness in conduct". (WEBSTER). A material may
be indecent, for being repulsive, filthy or loathsome though not lewd. 52 Material which is
merely vulgar may not be obscene, but it may be indecent.
4V.  Again, though the Legislature would be competent to create a new offence
and to provide that incitement to that offence will be punishable, the word 'reasonable'
would enable the Court to interfere if the Legislature seeks to make that illegal which
was never illegal, by some ad hoc legislation, only to impose an arbitrary restriction upon
the freedom of speech and expression, e.g., if the Legislature prohibits the mere
criticism of the administrative policy of the Government,--for, opposition is the very soul
of 'democracy'. This statement, now finds support from the decision in Ram Manohar's
case. [See Art. 19(2)]53
2.  But, as has been stated earlier, once the connection between the restrictive
legislation and the permissible grounds is rational, the Legislature has the discretion as
to the expediency of the stage at which the restriction is to be applied. Thus, it is not
prevented from providing against threatened or apprehended 54 injury as distinguished
from an actual injury.
Section 295A of the Indian Penal Code penalises the offering of words "with deliberate and malicious
intention of outraging the religious feelings of any class of citizens of India." Holding this provision
valid, the Supreme Court said that the excitement of such religious disaffection has a proximate
tendency to cause public disorder if perpetrated with a deliberate and malicious intention of outraging
the religious feelings of a class of people.55
(b) Excessiveness
Excessiveness
A restriction may also be unreasonable if it sweeps within its ambit act ivities which constitute a
legitimate exercise of the freedom of speech and expression, 56 or the restriction is in excess of what
was necessary to suppress or prevent the social mischief aimed it. 57 The doctrine of "proportionality" or
perhaps more accurately "disproportionality" is described in Halsbury's Laws of England as follows:
"The Courts will quash exercise of discretionary powers in which there is not a reasonable relationship
between the objective, which is sought to be achieved and the means used to that end or where the
punishment imposed by administrative bodies or inferior Courts are wholly out of proportion to the
relevant misconduct...". It is regarded as one indication of manifest unreasonableness. 58
In R v. Goldsmith ,59 LORD DIPLOCK said: "...proportionality prohibits the use of a steam hammer to
crack a nut if a nutcracker would do". The requirement of proportionality set out by Privy Council in De
Frestar v. Ministry of Agriculture, Fisheries and Housing 60 is widely adopted. These are whether - (1)
The legislative objective is sufficiently important to justify limiting a fundamental right. It is difficult
question as to whether the court or an elected body should decide this, but under the Human Rights
 186

Act, unless the language of the statute makes it impossible to interpret it other than as violating the
right, the court has the last word; (2) The measures designed to meet the legislative object are
rationally connected with it; and (3) The means used to impair the right or freedom are no more than is
necessary to accomplish the objective. An important matter would be, for example, whether there are
alternative safeguards for the right in question.
In essence, proportionality means "a measure which interferes with a community or human right must
not only be authorised by law, but must correspond to a pressing social need and go no further than
strictly necessary in a pluralistic society to achieve its permitted purpose, or more shortly, must be
appropriate and necessary to its legitimate aim".61
Proportionality might require restricting the right, but not destroying it completely. For example, an
important aspect of freedom of expression is whether there are alternative outlets for what claimant
wishes to communicate.62 The social need might also be compromised. For example, in RJR
McDonald v. Canada ,63 the Canadian Supreme Court was divided over the extent to which tobacco
advertising should be restricted in order to meet public in health. 64 Less restrictive means could have
been employed in particular whether there are safeguards to protect the individual. 65 In McVeigh v. UK
,66 the European Court held that an emergency restriction on personal freedom, while necessary to
meet a pressing social demand, did not justify a refusal to the claimants to contact their wives.
Proportionality also requires that restriction must not be discriminatory in the sense that like case must
be treated alike.67
Article 10 of the European Convention to Freedom of Expression reads thus:- "(1) Everyone has the
right to freedom of expression. This right shall include freedom to hold opinion and receive and impart
information and ideas without interference by public authority and regardless of frontiers. The article
shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with duties and responsibilities may be subject to
formalities, restrictions or penalties as are prescribed by law and "are necessary in a democratic
society", in the interest of national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of reputation or right of
others, for preventing the disclosure of information received in confidence or maintaining the authority
and impartiality of the judiciary". The concept of "necessary" in clause (2) of Article 10 implies that
"interference corresponds to a pressing social need and in particular that it is "proportionate" to the
legitimate aim pursued".68 In Sunday Times v. UK ,69 it was held that "despite the word "necessary" not
possessing such a confined meaning as "indispensable" or even wide meaning as "desirable", useful
or 'ordinary', it does imply the existence of a pressing social need".
By "proportionality", we mean the question whether while regulating exercise of fundamental rights,
the appropriate or least restrictive choice of measures has been made by the legislature or the
administrator so as to achieve the object of the legislation or the purpose of the administrative order,
as the case may be. Under the principle, the Court will see that the legislature and the administrative
authority "maintain a proper balance" between the adverse effects which the legislation or the
administrative order may have on the rights, liberties or interests of persons keeping in mind the
purpose which they intended to serve. The legislature and the administrative authority are however
given an area of discretion or a range of choices, but as to whether the choice infringes the rights
"excessively" or not, is for the Court to decide. That is what is meant by proportionality". 70 The
restrictions made "in the interests of public order" must have reasonable relation to the object to be
achieved and must not go "in excess" of that object. 71 Freedom of speech is guaranteed under Art.
19(1)(a) subject to reasonable restrictions. It must be so imposed by a duly enacted law and must not
be excessive, i.e., they must not go beyond what is necessary to achieve the object of the law under
which they are sought to be imposed.72
In State of Madras v. V.G. Row ,73 it was held that the test of reasonableness should be determined
after taking into consideration the nature of right alleged to have been infringed, the underlying
purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby,
"the disproportion of the imposition" the prevailing condition at the time should all enter the judicial
verdict.
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In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh ,74 Supreme Court followed the earlier decision in Om
Kumar's case75 (supra) and observed: "Ever since 1952, the principle of proportionality has been
applied vigorously to legislative and administrative action in India. While dealing with the validity of
legislation infringing fundamental freedom enumerated in Art. 19[(]1[)] , of the Constitution of India ,
the Court had occasion to consider whether the restrictions imposed by legislation were
"disproportionate to the situation" and were the least restrictive of the choices. In cases where such
legislation is made and the restrictions are reasonable, yet, if the statute concerned permitted
administrative authorities to exercise power of discretion, while imposing restriction in individual
situations, question frequently arises whether a wrong choice is made by the administrator for
imposing the restriction or whether the administrator has not properly balanced the fundamental right
and the need for the restriction or whether he has imposed the least of the restrictions or the
reasonable quantum of restrictions etc. In such cases, the administrative action in our country has to
be listed on the principle of proportionality, just as in the case of Iran's legislation. This, in fact, is being
done by the Courts. Administrative act ion in India affecting fundamental freedom has always been
tested on the anvil of proportionality". In that, the Union Territory of Chandigarh had leased certain
lands to the petitioner on certain conditions, which if violated, enabled the lessor to resume the land
and also forfeit the amount paid. Taking into consideration the relevant facts especially due to the fact
that the default committed was due to reasons beyond the control of lessee, Supreme Court gave
relief against resumption on certain conditions.
While considering the validity of Sections 73 of the Indian Stamp Act (as amended in A.P.) which
empowers the Collector to order search and seizure of documents, it was held that the provisions
existing before the Amendment effectively protect the interests of revenue and the power to search
and seizure is an invasion on the freedom of privacy, which is part of 'personal liberty' read alongwith
the fundamental rights guaranteed under Art. 19 which deprives the quality of reasonableness. It was
held that the power was disproportionate and excessive in nature and that too without any
guidelines.76
JUSTICE MURTAZA FAZAL ALI in Pathumma v. State of Kerala ,77 laid down the following guidelines
to determine the reasonableness of a restriction. (1) The court has to bear in mind the Directive
Principles of State Policy; (2) The restriction must not be arbitrary or of an excessive nature so as to
go beyond the requirement of the interest of the general public; (3) No abstract or general pattern can
be laid down since the pattern will vary from case to case; (4) A just balance has to be struck between
restriction imposed and the social control envisaged by the relevant clause; (5) There must be a direct
and proximate nexus or reasonable connection between the restriction imposed and the object sought
to be achieved; (6) The court must see the prevailing social values whose needs are satisfied by the
restriction meant to protect social welfare; (7) So far as the reasonableness is concerned, it has to be
viewed not only from the point of view of the citizen, but also the problem before the legislature and
the object which is sought to be achieved.78
The burden to show that the restriction is reasonable lies on the State. The restrictions are imposed by
law on the Fundamental Rights contained in Art. 19(1)(a) to (g) and the courts are entitled to consider
the proportionality of these restrictions which means that the restriction should not be arbitrary or of an
"excessive" nature, beyond what is required for achieving the objects of the legislation. Legislation
which arbitrarily or excessively invades the Fundamental Rights cannot be said to contain the quality
of reasonableness unless it strikes a balance between Fundamental Rights guaranteed and the
restriction imposed thereon.79
In the Bombay Police Act , 1951 and rules framed thereunder regulations have been framed which
authorise the authorities to safeguard any perceived violation of dignity of women through obscene
dances. All activities can be controlled under the existing regulation. It also applies to dance bars,
permit-room and eating houses. Without making any attempt to regulate the working of such
establishments and controlling the act ivities as per law, State of Maharashtra amended the Act by
introducing a new provision completely prohibiting dance performance in certain category of hotels.
The court struck down the new legislation as excessive holding that the mischief alleged by the State
can be controlled by the existing legislation and prohibition is in violation of fundamental rights. 80
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'Proportionality' requires the Court to judge whether the act ion taken was really needed as well as
whether it was within the range of causes of action that could reasonably be followed. 'Proportionality'
is, therefore, a more exacting test in some situations and is to be rejected as requiring the Court to
substitute its own judgment for that of the proper authority. 81
In Council of Civil Service Union v. Minister for Civils Service ,82 LORD DIPLOCKsaid: "....The doctrine
of proportionality seems to be increasingly accepted in English law as a last of lawfulness of official
act requiring simply that excessive means should not be employed to achieve given ends. To be
unlawful for want of proportionality, a decision must not be "unreasonably disproportionate" or perhaps
proportionately disproportionate.
Under the European Convention of Human Rights, the jurisprudential basis for the principle of
proportionality is the requirement that the interference with a convention right "must be necessary" in a
democratic society. On that basis, the European Court of Human Rights has applied the principle of
proportionality in a number of cases, to determine the validity of primary legislation. 83 In A. v. Secretary
of State for Home Department ,84 it was held that the provision in anti-terrorism law which gave power
of indefinite detention without trial was a disproportionate interference with the right to liberty under
Art. 5 of ECHR.
After the enforcement of Human Rights Act 1998, there has been a shift in the approach of English
Courts. It was held that when anxiously scrutinising an executive decision that interferes with human
rights, the Court will ask the question, applying an objective test, whether the decision maker could
reasonably have concluded that the interference was necessary to achieve one or more of the
legitimate aims recognised by the Convention.85 In Smith and Grady v. UK ,86 the European Court held
that orthodox domestic approach of English court had not given the application an effective remedy for
the breach of their rights under article 8 of the Convention because the threshold of review had been
too high. Now, following the incorporation of the Convention by the Human Rights Act, 1998, and
bringing of that Act fully in force, domestic courts must themselves form a judgment whether a
Convention right has been breached (conducting such inquiry as is necessary to form the judgment)
and, so far as permissible under the Act, grant an effective remedy. In De Freitas v. Permanent
Secretary ,87 Privy Council said that in determining whether a limitation by an act, rule or decision is
arbitrary or excessive the court should ask itself whether (1) the legislative objective is sufficiently
important to justify limiting a fundamental right; (2) the measures designed to meet the legislative
objective are rationally connected to it; and (3) the means used to impair the right or freedom are no
more than is necessary to accomplish the objective.
'Proportionality' is tested under (a) balancing test, (b) the necessity test, and (c) the suitability test.

5)  The 'balancing test' requires a balancing of the ends which are official
attempts to achieve against the means applied to achieve them. This exercise requires
an identification of the ends or purposes sought by the official decision. In addition, it
requires an identification of the means employed to achieve these ends; a task which
frequently involves an assessment of the impact of the decision upon the affected
person. Different ends or purposes and different means will be accorded different
weights. For example, in the context of European Community Law, it would appear that
where the purpose of infringement of the fundamental norms, such as Art. 30 of the E. C.
Treaty is the protection of consumers or the health of animals, then these purposes may
be accorded less weight than a purpose such as the protection of human health.
Similarly, if the means pursued to achieve a measure involve a breach of human right or
the deprivation of a person's livelihood, these factors are likely to be weighed more
heavily than one affects individuals in a more trivial manner. The application of the
balancing test is wells illustrated by the case of Bela - Mutile Joseph Bergmman v.
Grows Farm ,88 where the Court of Justice held unlawful a Council Regulation which
made compulsory the use of skimmed milk powder in the feeding of livestock. The
purpose of the regulation was to diminish the surpluses of skimmed milk powder, but its
effect which was to make the cost to users three times that of the equivalent amount of
vegetable feeding stuffs, was held disproportionate.
 189

6)  The 'necessity list' requires that where a particular objective can be
achieved by more than one available means, the least harmful of these means should be
adopted to achieve a particular purpose. Like the United States principle of the "least
restrictive alternative", this aspect of proportionality requires public bodies to adopt those
regulatory measures which cause the minimum injury to an individual or community. It
only applies where there are more than one means is available to implement the law's
objective.

4)  The 'suitability test' requires authorities to employ means which are
appropriate to the accomplishment of a given law, and which are not themselves
incapable of implementation or unlawful.89
The court asks first whether the measure which is being challenged is suitable to attaining the
identified ends. Suitability here includes the notion of "rational connection" between the means and
end. The next step asks whether the measure is necessary and whether a less restrictive or onerous
method could have been adopted (the test of necessity requiring minimum impairment of the right or
interest in question). If the measure passes both the tests, the court may go on to ask whether it
attains a fair balance of means and end. It is important to note here that the burden of justification in
such cases falls on the public authority which has apparently infringed the right of the claimant or
offended a norm of European Community Law.90

In para 79 of the same book (at Chapter XI) after referring to articles 8-12 of the European Convention
of Human Rights which deal with the expression "necessary in democratic society", learned author dE
SMITH says that this requirement engages the courts in an exercise of constitutional review. This is
because it seeks not merely a "fair balance" between measure and the social end, but because it
requires the court to assess the measures by the standards of constitutional democracy. This point is
well-illustrated by the difference of approach between the Court of Appeal and the ECHR in R v.
Ministry of Defence exparte Smith 91 where despite applying the test of 'anxious scrutiny', the Court of
Appeal upheld the ban on homosexuals in the Armed Forces. The European Court of Human Rights
(ECHR) not only required more convincing justification for the ban, but also tested it by the democratic
requirement of "pluralism, tolerance and broadmindedness". 92
"If we recognise certain interests as being of particular importance and categorise as fundamental
rights, then this renders the application of proportionality necessary or natural and easier.
Proportionality is 'necessary' or 'natural' because the very denomination of the interests as
fundamental rights means that any invasion of them would be kept a minimum. Society may well
accept that these rights cannot be regarded as absolute and that some limitations may be warranted
in certain circumstances. Nonetheless, there is a presumption that any inroad should interfere with the
right "as little as possible" and "no more than" is merited by the occasion. In this sense, the
recognition of some idea of proportionality is a natural and necessary adjunct to the recognition of
fundamental rights.
Proportionality is also "easier" to apply in such cases. The reason why this is so is that a different
aspect of proportionality calculus has already been resolved; one of the interests, such as freedom of
speech has been identified and it has been weighed and valued. We do not have to fathom out this
matter afresh on each and every occasion; precisely because the fundamental nature of the right has
been acknowledged.
It is natural in cases concerning rights to apply proportionality in the sense of asking whether the
interference with these fundamental rights was the least restrictive possible in the circumstances". 93
The High Court of Australia explained in Lange v. Australian Broadcasting Corpn . (decision dated
8.7.1997) held that when a law operates to burden the freedom, it is valid only if it is reasonably
 190

appropriate and adopted to serve a legitimate and the fulfillment of which is compatible with the
system of Government prescribed by Constitution. This was said to be exempted by an earlier case in
Australian Capital Televiion Pty. Ltd. v. Commonwealth of Australia 94 where a law seriously impeding
discussion during the course of federal election was invalid because there were other less drastic
means by which the objectives of the law could be achieved. 95
U.S.A.

3A)  U.S.A.--The American Supreme Court annulled a law regulating the

distribution of circulars on the ground that it was not limited to literature "that is obscene
or offensive to public morals or that advocates unlawful conduct", but "in its broad sweep
prohibits the distribution of...literature of any kind"; secondly, it "is comprehensive with
respect to the method of distribution. It covers every sort of circulation, 'either by hand or
otherwise'. There is thus no restriction in its application with respect to time or place. It is
not limited to ways which might be regarded as inconsistent with the maintenance of
public order, or as involving disorderly conduct, the molestation of the inhabitants or the
misuse or littering of the streets. The ordinance prohibits the distribution of literature of
any kind at any time, at any place, and in any manner without a permit from the city
manager."96 In that case, the court overturned a conviction for distributing religious tracts
in violation of a city ordinance that prohibited the distribution of literature of 'any kind'
within the city without first obtaining written permission from the City Manager. The court
found that the ordinance was void on its 'face' because of broad discretion vested in the
City Manager to curb speech of any kind and for any reason. The ordinance struck "at
the very foundation of the freedom of the press by subjecting it to licence and
censorship".97

3B)  In India, similarly,--

India

26i)  The supreme Court annulled98s. 3(1) of the Punjab Special Powers (Press)
Act, 1956, on the ground that it was substantively unreasonable because no limitation
was imposed either so to the duration of the ban on importation authorised by the
provision nor as to the subject-matter of the publication. It extended to any publication,
and might be of an indefinite or unlimited duration.
Section 3(1) of the Act provided as follows:
"The State Government or any authority authorised by it in this behalf, if satisfied that
such act ion is necessary for the purpose of preventing or combating any activity
prejudicial to the maintenance of communal harmony affecting or likely to affect public
order, may by notification, prohibit the bringing into Punjab of any newspaper, periodical
leaflet or other publication."
The decision of the Supreme Court was that though the restriction imposed by the
section was in the interest of public order, it was in excess of the requirement. 99
On the other hand, the Court upheld the reasonableness of s. 2(1)(a) of the same Act
which had limited the nature of the publication as well as the duration of the ban
imposed by the Act, as follows:
"2(l) The State Government or any authority so authorised in this behalf if satisfied that
such action is necessary for the purpose of preventing or combating any act ivity
prejudicial to the maintenance of communal harmony affecting or likely to affect public
order, may, by order in writing addressed to a printer, publisher or editor.--
(a) prohibit the printing or publication in any document or any class of documents of any
matter relating to a particular subject or class of subjects for a specified period or in a
particular issue or issues of a newspaper or periodical:
 191

Provided that no such order shall remain in force for more than two months from the
making thereof:
Provided further that the person against whom the order has been made may within ten
days of the passing of this order make a representation to the State Government which
may on consideration thereof modify, confirm or rescind the order." 100
In Chintamanrao v. State of M.P .,101 Court observed that "reasonable restriction" which
the State could impose on the fundamental rights "should not be arbitrary or of an
excessive nature beyond what is required" in the interests of public. 102
In Om Kumaris case (supra), the entire law on proportionality has been discussed and it
is observed that in England, administrative action affecting freedom of speech and
expression has been declared invalid applying the principles of "strict scrutiny" and in
those cases "Wednesbury Principles" are no longer applied. As observed by de SMITH,
the principle of proportionality cannot be equated with the principle of achieving the right
balance. However, in some contracts, the application of proportionality, in particular by
the use of the test of "necessity" or "least restrictive alternative" as outlined above, might
involve the Courts, in some type of cases, in a "more intense evaluation" of the merits of
a case than they now exercise.103
25ii)  In Ram Manohar's case1similarly, the Court was influenced by the
consideration that the impugned Act did not confine itself to violent investigations, but
included within its ambit any instigation, or advice even though it were given by a friend
or a legal adviser, not to pay the Government dues, without resorting to violence. 2
17iii)  Another type of excessiveness takes place where the Legislature confers
unfettered power upon the Executive to impose restriction upon the exercise of the
fundamental right without offering a guide or standard for canalising such power.
The phrase 'reasonable restriction' connotes that the limitation imposed upon a person in
the enjoyment of a right should not be arbitrary or of an excessive nature. Legislation
which arbitrarily or excessively invades any of the six freedoms cannot be said to contain
the quality of reasonableness and unless it strikes a proper balance between freedom
guaranteed under Art. 19(1) and the social control permitted by clauses (2) to (6) of Art.
19, it must be held to be wanting in reasonableness. 3
The Punjab Excise Act , 1914 prohibited women from being employed in liquor shops. It
was challenged on various grounds under Arts.14 & 19, etc. State of Punjab was
following a practice based on traditional cultural norm as also the state of general
ambience in the society which women had to face while going on employment which is
otherwise completely innocuous for the male counterpart. Court said that the State
legislation is far in excess of requirement. Instead of prohibiting women employment in
the bar altogether, the State should focus on factoring ways through which unequal
consequences of sex differences can be eliminated. The doctrine of "protective
discrimination" as contended by State, the court held serves as a double edged weapon.
Strict scrutiny should be employed while assessing the implication of this variety of
legislation. Court said legislation should not only be assessed on its proposed aim, but
rather on the implication and the effect. Court said that the impugned legislation suffers
from incurable fixation of stereotype morality and conception of sexual role. No law in its
ultimate effect should end up perpetuating the oppression of women. Court further said
that a protective discrimination statute would entail a two-pronged scrutiny - (a) the
legislative interference should be justified in principle; (b) the same should be
proportionate in measure. The court's task is to determine whether the measures
furthered by the State in the form of legislative mandate, to augment the legitimate aim
of protecting the interest of women are proportionate to the other bulk of well-settled
gender norms such as autonomy, equality of opportunity, right to privacy, etc. The bottom
line in this behalf would be a functioning modern democratic society which ensures
freedom to pursue varied opportunities and option without discriminating on the basis of
 192

sex, race, caste or any other like basis. In fine, there should be a reasonable relationship
of proportionality between the means used and the aim pursued. Court concluded,
instead of putting curbs on women freedom, empowerment would be a more tenable and
socially wise approach. This empowerment should reflect in the law enforcement
strategies of the State as well as the modelling done in this behalf. Also with the advent
of modern State, new models of security must be developed. There can be a setting
where the cost of security in the establishment can be distributed between State and the
employer.4
While considering the meaning of "restriction", it was held that three propositions are
well settled: (1) restriction includes cases of prohibition, (2) the standard of judging
reasonability of restriction or restriction amounting to prohibition remains the same,
"excepting that a total prohibition must also satisfy the test that lesser alternative would
be inadequate, and (3) whether the restriction amounts to total prohibition have to be
determined with regard to facts and circumstances of the case. In that case, the majority
held that prohibition of cow slaughter in a particular local area satisfies the ground of
reasonableness.5 When the restriction reaches the stage of prohibition, special care has
to be taken by the Court to see that the test of reasonableness is satisfied and greater
the restriction the "more need for strict scrutiny" by the Court. 6
In cases where legislation is made and restrictions are reasonable, yet, if the Statute
concerned permitted the administrative authorities to exercise power or discretion while
imposing restriction in individual situations, question frequently arises whether a wrong
choice is made by the administrator for imposing restrictions or whether the
administrator has not properly balanced fundamental right and the need for the
restriction or whether he has imposed the least of the restrictions or the reasonable
quantum of the restrictions, etc. In such cases, the administrative action in our country
has to be tested on the principle of "proportionality" just as it is done in the case of Irani
legislation.7 For adjudging the reasonableness of a restriction, factors such as the
duration and extent of restriction, the circumstances under which and the manner in
which that imposition has been authorised, the nature of the right infringed, the
underlying purpose of the restriction imposed, the extent and urgency of the evil sought
to be remedied thereby, the disproportion of the imposition, the prevailing condition at
the time, amongst others enter into judicial verdict. 8In that case, court further held that
the term 'liberty' which is subject to reasonable restriction, needs to be examined with
reference to the other constitutional rights. Art. 21 is the foundation of the constitutional
scheme. The procedure established by law for deprivation of right conferred by this
article must be fair, just and reasonable. The rules of justice and fair play require that the
State act ion should neither be unjust nor unfair, lest it attracts the vice of
unreasonableness thereby vitiating the law which prescribed that procedure and
consequently the action taken thereunder. Any act ion taken by a public authority which
is entrusted with statutory power has, therefore, to be tested by the application of two
standards - (1) the action must be within the scope of the authority conferred by law, and
(2) it must be reasonable. If any act ion within the scope of the authority conferred by law
is found to be unreasonable, it means that the procedure established under which the
action is taken is itself unreasonable. The law itself has to be reasonable and
furthermore the act ion under that law has to be in accordance with law so established.
Non-observance of either of this can vitiate the action, but if the former is invalid, the
latter cannot withstand.
In the case of an ordinary administrative act ion, the well-established ground of
"unreasonableness" applies to determine the validity of the action, for "clearly a
decision ....... which suffers from a total lack of proportionality will quality for the
"Wednesbury unreasonable epithet", here the disproportionality and unreasonableness
are synonymous and the jurisprudential basis is that the power to make administrative
decisions is a delegated and limited power, and the courts proceed on the presumption
that the legislature does not authorise unreasonable act s. "While conferring discretion
 193

on an authority the statute does not intend to arm such authority with unfettered
discretion which may be beyond the limits of reason, and comprehension of a man of
ordinary intelligence.... it is to be read in such statute that the authority which exercising
discretion shall act reasonably.9 According to the learned author JUSTICE FAZAL
KARIM, while considering the reasonableness of any restriction on fundamental rights as
envisaged in Art. 19(2) to (6), the principle of proportionality could be applied as was
done by the European Court of Human Rights under the Strasbourg Jurisprudence and
has cited the followed decision.10 It was held in Compbell's case, that the expression
"necessary in a democratic society" in Art. 8(2) of the European Convention must
correspond to a "pressing social need" and proportionate to the legitimate aimpursued.
As an instance of this type may be mentioned in the Hamdard Dawakhana case,11 where
several provisions of the Drugs and Magic Remedies (Objectionable Advertisements)
Act, 1954 were held to constitute unreasonable restrictions upon the Petitioner's
fundamental right under Art. 19(1)(g), which included the right to advertise, on the
ground that the provisions conferred uncanalised power upon the executive to impose
the restrictions. Had such advertisement been held to be a mode of expression, the
principles applied would have been applicable to Art. 19(1)(a) as well. This Act was
enacted "to prohibit the advertisement for certain purposes of remedies alleged to
possess magic qualities and to provide for matters connected therewith."
Section 3(d) of the Act provided--
"...no person shall take part in any publication of any advertisement referring to any drug
which suggests.... the use of that drug for--
the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any
other disease or condition which may be specified in rules made under this Act."
The rule-making power under the Act was given to the Central Government. Held, that
the italicised conferred uncanalised and uncontrolled power to the Executive to include,
by specifying it in the Rules, any disease within the mischief of the Act, and thus
imposed an unreasonable restriction upon the freedom of expression. 12
Section 8 of the same Act provided--
1. may seize and detain any document, article or thing which such person has
reason to believe contains an advertisement which contravenes any of the
provisions of this Act....".
Held, that the above provision went far beyond the purposes of the Act as it offered
no guide to the person authorised by the State Government to form his opinion or belief
before seizing and forfeiting the documents referred to in the provision. 13
13iv)  Rule 4-A of the Bihar Government Servants Conduct Rules, 1956 which
prohibited Government servants from participating in any demonstration.... with any
matter pertaining to his conditions of service" has been struck down as an unreasonable
restriction on the ground that it is wide enough to include within its prohibition even the
demonstrations or expressions of ideas which are peaceful and orderly and may not,
accordingly, lead to a breach of public order.14 In Ramlila Maidan Incident, In re.,15 the
Supreme Court held that when the people assemble peacefully, the State has a duty to
make available safe environment for fruitful enjoyment of rights. It has to give utmost
regard to freedom of speech and expression which a citizen or group of citizens may
assert. The State has a duty to provide security and protection to persons who wish to
attend such assembly at the invitation of the person who is exercising his right to
freedom of speech or otherwise. The Court also said that when the public was
conducting itself in an orderly fashion, and agitating peacefully, the State cannot impose
an order under s. 144 CrPC and attempt to remove the citizens forcibly who were
sleeping in the midnight. The police act ion was held unreasonable.
 194

12v)  A person detained under the Defence of India Rules cannot be deprived of
his right to publish a book unless the publication itself is prejudicial to the objects of the
Defence of India Act .16
On the other hand,--
The validity of s. 144 of the Criminal Procedure Code which empowers the District
Magistrate to impose a pre-censorship on newspapers, has been upheld on the ground
that the restriction imposed by it was reasonable in view of the fact that it could be
imposed only in emergent circumstances and for a temporary period. 17 An order under s.
144 CrPC , though primarily empowers the executive authorities to pass prohibitory
orders vis--vis a particular facet, is intended to serve larger public interest. Restricted
dimensions of the provisions are to serve the larger public interest, which at relevant
time, has an imminent threat of being disturbed. The order can be passed when
immediate prevention of speedy remedy is desirable. The legislative intention to
preserve public place and tranquility without lapse of time, acting urgently, if warranted,
giving thereby paramount importance to the social need by even overriding temporarily
private rights keeping in view of public interest is patently in-built in the provision under
s. 144 CrPC . The provision under s. 144 CrPC was held as constitutionally valid. 18
Court also held that an order under s. 144 CrPC must be least intrusive and period of
operation should not be longer than necessary and a mere possibility of danger is not
sufficient to pass an order under s. 144 CrPC . Court said that restraint has to be
reasonable and must be minimal. Such restraint should not be allowed to exceed the
constraint of the particular situation either in nature or in duration.
10vi)  Nor can a restriction be said to be reasonable where it is discriminatory in its
application.19

8I.  Procedural Unreasonableness.

Procedural unreasonableness
A restriction becomes procedurally unreasonable where the law empowers the administrative authority
to impose the restriction upon his subjective satisfaction, without affording an opportunity of being
heard to the person to be affected. Thus,

27i)  In Virendra v. State of Punjab ,20s. 3(1) of the Punjab Special Powers (Press)
Act, 1956, was struck down not only on the ground of substantive unreasonableness but
also on the ground of procedural unreasonableness in that it empowered the State
Government to prohibit the circulation of a publication without making any provision for
any representation of the party affected. On the other hand, the reasonableness of the
restriction imposed by s. 21(1)(a) of the same Act was upheld on the ground that this
section provided for a right of representation against the order made by the State
Government.
Under s. 144 CrPC complete procedural mechanism is provided for examining the need
and merits of an order passed under the above provision. The above provision
enumerates the principles and declares the situation where exercise of rights recognised
by law, by one or few may conflict with other rights of the public or tend to endanger
public peace, tranquility and/or harmony. The provision provides for a complete
mechanism to be followed by Magistrate and also specify the limitation of time till when
such order shall remain in force.21
26ii)  But even the provision for an ex parte order would not be unreasonable in
emergent circumstances; nor can an administrative decision be challenged as subjective
where it is open to judicial review in revision or even in a collateral proceeding. 22
The reasonableness has got to be tested both from procedural and substantive aspects. It should not
be bound by procedural perniciousness or jurisprudence or remedies. 23 The requirement of
reasonableness applies even to the procedural part of the law and the court's power is not restricted
 195

only to the extent of substantive law.24 Procedural fairness usually requires the observance of natural
justice although it may be excluded expressly or by necessary implication. 25 The gist of
reasonableness is not so much in the label of the officer as in a judicial approach to the question to be
decided according to the procedure, which gave an adequate hearing. 26
While considering the validity of Sections 73 of Indian Stamp Act (as amended in A.P.), the
Supreme Court held that the authority given to the 'Collector' to authorise any person whomsoever to
inspect, to take notes or extracts from papers in the public office does not suffer from the vice of
excessive delegation, especially when the Section allows the facts relating to the customer's privacy
to reach non-governmental persons which amounts to an unreasonable encroachment into customer's
right.27 In Maneka Gandhi v. Union of India ,28 it was held that the expression "personal liberty" in Art.
21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty
of man and some of them have been raised to the status of distinct fundamental rights and given
"additional protection" under Art. 19. Any law interfering with personal liberty of a person must satisfy
the triple test - (1) it must prescribe a procedure, (2) the procedure must withstand the test of one or
more of the fundamental rights conferred by Art. 19 which may be applicable to a given situation, and
(3) it must also be liable to be tested with reference to Art. 14. As the test propounded by Art. 14
pervades Art. 231 as well, the law and procedure authorising interference with personal liberty and the
right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the
procedure prescribed does not satisfy the requirements of Art. 14, it would be no procedure at all
within the meaning of Art. 21.
In Canara Bank's case,29 it was held that the unbridled power available to be exercised by any person
whom the Collector may think proper to authorise, without laying any guidelines as to the persons who
may be authorised and without recording the availability of grounds which would give rise to the belief
(i.e., that an instrument is not properly stamped) on existence whereof only the power to search and
seizure to be exercised (which affects the right to privacy) deprives the provision of the quality of
reasonableness.30
Sedition
U. K.
(A) England.--Sedition, as understood in England, is a comprehensive term and includes much that
may be termed as "offence against the State" and something more.
The law of sedition relates to the uttering of seditious words, the publication of seditious libels and
comprises to do an act for the furtherance of a seditious intention. It consisted of speaking or writing
against the character and constitution of the Government or seeking to change it by any means except
those prescribed or are recognised as lawful. In R v. Aldred ,31 a journalist advocating independence
for India published articles which commended political assassination soon after an assassination by
an Indian nationalist had occurred in London; COLERIDGE J told the jury that sedition implied
violence of lawlessness in some form and said: "the test is this: was the language used calculated or
was it not; to promote public order or physical force or violence in a matter of State?". The journalist
was convicted.
The test of whether the words were calculated (that is, likely) to promote violence was not followed in
R v. Caunt (1947 - unreported) where JUSTICE BIRKETT directed the jury that proof of intention to
promote violence was an essential part of violence. There need not be actual violence. In R v. Chief
Metropolitan Stipendary Magistrate exparte Choudhari 32 which concerned a novel that was offensive
to Muslims; it was held that sedition applies only to incitement against the Government (including
however, any person exercising public function) and not to attack religious groups. Under ECHR, the
limits of permissible criticism are wider with regard to the Government than in relation to a private
citizen or even a politician.33
The Incitement to Disaffection Act, 1934 makes it an offence maliciously and advisedly to endeavour
to seduce the armed forces from his or her duty or to aid, counsel or prosecute him or her to do so.
The Police Act 1996 creates a similar offence in relation to the police and the Aliens Restriction
(Amendment) Act 1917 prohibits an alien from attempting to cause sedition or disaffection and also
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from promoting or interfering in an industrial dispute in an industry in which he or she is not employed
for atleast immediately before the offence.
Anti-terrorism legislation imposes wide restriction on political expression by virtue of its broad
definition of terrorism. In particular, the Terrorism Act, 2006 outlaws the publication or dissemination of
a statement which directly or indirectly encourages terrorism. 'Encouraging' includes 'glorifying' (which
includes praising or celebrating) the commission or preparation (whether in the past or in the future or
generally) of acts of terrorism in such a way that members of the public could be expected to infer that
they should emulate the conduct in question in existing circumstances. However, the accused must
intend or be reckless as to the consequences of publication and there is a defence that the statement
did not express his or her views and did not have his or her endorsement. The offence can be applied
to internet service provider.34
The Public Order Act, 1986 deals with 'racial hatred' taken to mean 'hatred against a group of persons
defined by reference to colour, race, nationality (including citizenship) or ethnic or national original". By
s. 18 of 1986 Act it is an offence for a person to use threatening, abusive or insulting words or
behaviour or to display any material which is threatening, abusive or insulting words or behaviour or to
display any material which is threatening, abusive or insulting if he does so with intent to stir up racial
hatred or if in the circumstances racial hatred is likely to be stirred up. The Football (Offences) Act,
1991, the Football (Disorder) Act, 2000 which amended the Football (Spectators) Act, 1988 make
indecent or racist chanting at football matches a criminal offence.
An agreement, communication or other preliminary activity aimed at inciting treason or some other
lesser commotion against public authority, advocacy aimed at inciting or producing and likely to incite
or produce - imminent lawless act ion. At common law, sedition included defaming a member of the
royal family or the Government. The difference between 'sedition' and 'treason' is that the former is
committed by preliminary steps, while the latter entails some overtact for carrying out the plan. But, of
course, if the plan is merely for some small commotion, even accomplishing the plan does not amount
to treason.35
According to EDWARD JENKS in his book The Book of English Law,36 "Sedition is perhaps the very
vaguest of all offences known to Criminal Law. It is defined as the speaking or writing of words
calculated to excite disaffection against constitution by law established, to procure the alleviation of it
by other than lawful means, or to incite any person to commit a crime to the disturbance of the peace,
or to raise discontent or disaffection or to promote ill-feeling between classes of the community. A
charge of sedition is historically, one of the chief means by which the Government especially at the
end of eighteenth and the beginning of nineteenth century, to strive put down hostile critics. It is
evident that the vagueness of the charge is a danger to the liberty of the subject, especially if the
Courts of Justice can be induced to take a view favourable to the Government.
It is the right of every citizen to discuss public affairs fully and freely, but such discussions must not be
directed to the incitement of unlawful acts or calculated to excite disaffection. In a twentieth century
prosecution for sedition, the judge told the jury that they could take into account the state of public
feeling.37
"Sedition embraces all those practices whether by word, deed or writing, which are calculated to
disturb the tranquillity of the State and lead ignorant persons to subvert the Government." 38
It thus covers--
"any attempt to bring into hatred or contempt the Crown, the Houses of Parliament, the Constitution,
to raise discontent among the people or promote hostility, between the various classes of the
people."39
Seditious intention is the essence of the offence. Thus, it is a seditious libel to publish a letter
asserting that unarmed persons present at public meeting had been 'inhumanly' cut down by the
King's troops,40 or to publish a pamphlet inciting people to use physical force in order to obtain
'justice'.41
On the other hand,--
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"An intention to show that Her Majesty has been misled or mistaken in her measures, or to point out
errors or defects in the government or constitution as by law established, with a view to their
reformation, or to excite Her Majesty's subjects to attempt by lawful means the alteration of any matter
in State by law established, or to point out, in order to their removal, matters which are producing, or
have a tendency to produce, feelings of hatred and ill-will between classes of Her Majesty's subjects,
is not a seditious intention."42
In modern practice, however, prosecution for seditious libel has become rare in England, unless it is
accompanied by an incitement of violence.43 Mere criticism of the Government is no offence.44 One
important reason why prosecutions for sedition are so rare in modern times in England is that a trial
for sedition must take place before a Jury and a modern Jury would hardly allow the Government to
use the law of sedition merely to restrain its political opponents, 45 where there is no incitement to
violence.46
U. S. A.
(B) U.S.A.--In the U.S.A., the individuals who carry on the Government have never been identified with
the State, except in 1798, when Congress passed the Sedition Act, a temporary Act, penalising
defamation of the President, members of the Government or of the Congress. But President Jefferson
discharged all the accused, and the Act itself expired after two years. Nonetheless, the Act has later
been declared unconstitutional.47
T. M. COOLEY ONA Treatise on the Constitutional Limitation has stated thus: "When it is among the
fundamental principles of the Government that the people frame their own constitution, and that in
doing so they reserve to themselves the power to amend it from time to time, as the public sentiment
may change, it is difficult to conceive any sound basis on which prosecutions for libel on the system of
Government can be based, except when their evident intent and purpose is to excite rebellion and civil
war. It is very easy to lay down a rule for the discussion of constitutional questions; that they are
privileged, if conducted with calmness and temperance, and that they are not indictable unless they go
beyond the bounds of fair discussion. But what is calmness and temperance, and what is fair in the
discussion of supposed evils in the Government? And if something is to be allowed "for a little feeling
in men's minds," how great shall be the allowance? The heat of the discussion will generally be in
proportion to the magnitude of the evil, as it appears to the party discussing it: must the question,
whether he has exceeded due bounds or not, be tried by judge and jury, who may sit under different
circumstances from those under which he has spoken, or at least after the heat of the occasion has
passed away, and who, feeling none of the excitement themselves, may think it unreasonable that any
one else should ever have felt it? The dangerous character of such prosecutions would be the more
glaring if aimed at those classes who, not being admitted to a share in the Government, attacked the
Constitution in the point which excluded them. Sharp criticism, ridicule and the exhibition of such
feeling as a sense of injustice engenders, is to be expected from any discussion in these cases; but
when the very classes who have established the exclusion as proper and reasonable are to try as
judges and jurors the assaults made upon it, they will be very likely to enter upon the examination with
a preconceived notion that such assaults upon their reasonable regulations must necessarily be
unreasonable. The great danger, however, of recognising any such principle in the common law of
America is that in times of high party excitement, it may lead to prosecutions by the party in power, to
bolster up wrongs and sustain abuses and oppressions by crushing adverse criticism and discussion.
The evil, indeed, could not be of long continuance; for, judging from experience, the reaction would be
speedy, thorough and effectual; but it would be no less a serious evil while it lasted, the direct
tendency of which would be to excite discontent and to breed a rebellious spirit. Repression of full and
free discussion is dangerous in any government resting upon the will of the people. The people cannot
fail to feel that they are deprived of rights, and will be certain to become discontented, when their
discussion of public measures is sought to be circumscribed by the judgment of others upon their
temperance or fairness. They must be left at liberty to speak with the freedom which the magnitude of
the supposed wrongs appears in their minds to demand; and if they exceed all the proper bounds of
moderation, the consolation must be, that the evil likely to spring from the violent discussion will
probably be less, and its correction by public sentiment more speedy than if the terrors of the law were
brought to bear to prevent the discussion".48
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In N.Y. Times v. Sullivan ,49 the Supreme Court asserted that the right to criticise official conduct was
'the central meaning of the First Amendment; hence, it would not tolerate prosecution 'in any form'. 50
Since then no such legislation in times of peace51 has been enacted in the United States, so that there
is no special protection of the administrators in times of peace, and they must seek protection for their
dignity and prestige, under the private law of defamation. 52
Again, mere advocacy53 to change the form of Government, short of the abolition of the republican
institutions, and without the use of force, is tolerated in the United States, for, the "right of the people
to change their institutions is expressly recognized by the Federal and State Constitution". 54 But, it is
within the police power of a State to declare it a felony to "teach, advocate, aid or abet the commission
of a crime, sabotage or unlawful acts of force and violence or unlawful methods of terrorism as a
means of accomplishing a change in industrial ownership or control or effecting any political change,
or knowingly to become a member of any organization that so teaches and advocates". 55 In Yates v.
US ,56 the Court ruled that act only proscribed advocacy of participation in overthrowing the
Government. Those in whom advocacy is addressed must be urged to do something now or in the
future, rather than "merely to believe something". In Scales v. US ,57 the Court concluded that mere
membership in an organisation advocating governmental overthrow was insufficient to sustain a
conviction. Noting that members might disagree with position taken by an organisation, court ruled
that the act applied only to "knowing" and "active" members who specifically intended to advance the
organisation's illegal aim. In short, while the American Court recognises the right of the State to
protect itself against sabotage and revolutionary act ivities, it refuses "to be swept into a hysterical
acceptance of political persecution of radicals."58 It would never forget that--
"The maintenance of the opportunity for free political discussion to the end that government may be
responsive to the will of the people and that changes may be obtained by lawful means, an
opportunity essential to the security of the Republic, is a fundamental principle of our constitutional
system.59
In De Jonge v. Oregon ,60 the Supreme Court observed--
"The greater the importance of safeguarding the community from incitements to the overthrow of our
institutions by force and violence, the more imperative is the need to preserve inviolate the
constitutional rights of free speech, free press and free assembly in order to maintain the opportunity
for free political discussion, to the end that government may be responsive to the will of the people
and that changes, if desired, may be obtained by peaceful means. There in lies the security of the
Republic, the very foundation of constitutional government."61
In this case,62 it was held that even though the Communist Party advocated a political change by
means of violence or other unlawful acts, members of the Party could not be penalised for addressing
a meeting, merely because of their membership of a Party having such aims or beliefs, if no violence
or crime was, in fact, urged at the particular meeting. 63 In another case,64 the Court similarly held that a
person could not be punished for 'inciting insurrection' merely because he induced others to become
members of the Communist Party.
In short, in the U.S.A., nobody can be penalised for spreading disaffection against the Government,
without advocating the use of violence.
Even when national security is not implicated, government's special interest in safeguarding the
effectiveness and fairness of its operation may justify some restriction on political expression by public
employees. Thus, in US Civil Services Commission v. National Assn. of Letter Carriers ,65Supreme
Court upheld restriction on partisan political act ivity by federal civil servants. Yet in a series of cases
dealing with government employees not protected by Civil Service System, the court made it clear that
public servants do not forfeit their right to express opinion on political matters. In Elrod v. Burns ,66
court struck a major blow at the spoils system by invalidating patronage dismissal of non-policy
making public employees. In the face of claims that patronage was necessary for strong political
parties, court held that removal based on political affiliation violates government workers' right of
freedom of association and freedom of political belief. 67
The Smith Act, 1940
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The provisions of the Aliens Registration (Smith Act ) of 194068 which proscribes the advocacy of the
violent overthrow of the government have already been noted.
Though this Act does not appear to have been repealed, prosecutions under this Act have ceased,
since, the Supreme Court has made it clear69 that advocacy of the abstract doctrine of violent
overthrow of the government is not punishable but advocacy of violent action to that end is. In New
York Times v. Sullivan ,70 JUSTICE WILLIAM BRENNAN observed that the nation was committed to
the principle that debate on public issues should be uninhibited, robust and wide open. Advocacy of
radical political change through violence or other non-democratic means, on the other hand, may
threaten the very foundation of government. In addition, restriction on political expression may be
deemed necessary to prevent corruption of the political process or to serve other important societal
purposes.
The right of a person to criticise the Government, in exercise of his freedom of expression, extends to
a criticism of the conduct and policies of the Armed Forces. 71 It also extends to dramatic performances
and is not lost because the act or wears a military uniform. 72
In short, the First Amendment would not tolerate any form of restraint upon criticism of government
and public officials:73
"...the presence or absence in the law of the concept of seditious libel defines society...If...it makes
seditious libel an offence, it is not a free society, no matter what its other characteristics".74
For a State conviction for sedition to be valid, the State must prove: (1) that speaker subjectively
intended incitement, (2) in context the words used were likely to produce imminent lawless action and
(3) the words used by the speaker objectively encouraged and urged and proved imminent act ion.
The State may not forbid or proscribe advocacy of the use of force or of law violation, except where
such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
produce such act ion. Mere teaching of abstract doctrines, was not like leading a group in a violent
action. Moreover, the Statute must be narrowly drawn and if it failed to distinguish between advocacy
of a theory and advocacy of act ion, it abridged First Amendment. 75 The mere abstract teaching of
moral propriety or even moral necessity for a resort to force and violence is not the same thing as
preparing a group for violent action and steeling into such act ion. A statute which fails to draw this
distinction impermissibly intrudes upon the freedom guaranteed by First and Fourteenth Amendment.
It sweeps within its condemnation speech which our Constitution has immunized from government
control.76 The Court in Brandenburg v. Ohio ,77approved the earlier decision which held that
constitutional guarantee of free speech and free press do not permit State to forbid or proscribe
advocacy of use of force or of law violation except when such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such act ion.
As regards criticism of officials, the only action open would be one for defamation brought by the
officials themselves, under the private law.78
"It was held in that cse Authoritative interpretation of the First Amendment guarantees have
consistently refused to recognise an exception for any test of truth - whether administered by judges,
juries or administrative officer - and especially one that puts the burden of proving the truth on the
speaker. .... A rule compelling the critic of official conduct to guarantee the truth of his official assertion
- and to do so on pain of libel judgment virtually unlimited in amounts - leads to "self-censorship".
Allowance of the defence of truth, with burden of proving it on the defendant does not mean that only
false speech will be deterred. Even courts accepting this defence as an adequate safeguard have
recognised the difficulties of adducing legal proof that the alleged libel was true in all its factual
particulars. ... Under such a rule, would be critics of official conduct may be deterred from voicing their
criticism, even though it is believed to be true and even though it is in fact true, because of doubt
whether it can be proved in court or fear of the expense of having to do so. They tend to make only
statements which 'steer far wider' of the unlawful zone'. ".....The rule thus dampens the vigor and limits
the variety of public debate. It is inconsistent with the First and Fourteenth Amendment".
The Constitutional guarantee requires, we think, a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to the official conduct unless he proves that
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the statement was made with act ual malice ... that is with knowledge that it was false or with reckless
disregard of whether it was false or not.
The principle laid down in Sullivan79 applies equally to criminal sanction for criticism of the official
conduct of public affairs; it has been applied to public figures generally including judges. 80
India
(C) India.--Section 124A of the Indian Penal Code , which deals with the offence of 'Sedition',
provides--
"Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise,
brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection
towards the Government established by law in India, shall be punished with transportation for life or
any shorter term, to which fine may be added, or with imprisonment which may extend to three years,
to which fine may be added, or with fine.
Explanation 1.--The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.--Comments expressing disapprobation of the measures of the Government with a view
to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.
Explanation 3.--Comments expressing disapprobation of the administrative or other action of the
Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute
an offence under this section."
What is understood is 'sedition' in India, is thus only one aspect of the English Law of Sedition, viz.,
seditious libel, or publication of matter calculated to bring the Government into hatred or contempt or
to excite disaffection towards them (see ante).
S. 124A, I.P.C.--Pre-Constitution interpretation
Of course. Expl. 3 to s. 124A of the Indian Penal Code also provides that comment expressing
disapprobation is no offence if it does not excite or attempt to excite, 'disaffection' towards the
Government. But the word 'disaffection' is a very wide term, and (having regard to Expl. 1) it was
interpreted by the Privy Council to mean mere absence of affection or bad feeling towards the
Government81 whether it has any connection with violence or not. Even an unsuccessful attempt to
excite disaffection towards the Government is equally an offence under this section. In Niharendu v.
Emperor ,82 the Federal Court sought to turn the tide of decisions by holding that mere criticism or
even ridicule of the Government is no offence unless it is calculated "to undermine respect for the
Government in such a way as to make people cease to obey it and obey the law, so that only anarchy
can follow.... Public disorder is the gist of the offence."
But the Privy Council would not give up its previous views notwithstanding the change in the set-up of
affairs. So, in Sadashiv v. Emperor 83 they overruled the decision of the Federal Court, and affirmed the
previous line of decisions as to the meaning of 'disaffection', viz., that an utterance which excites or
even attempts to excite a bad feeling towards the Government was punishable under the section,
irrespective of the intention of the speaker or the effect of the utternce upon the audience.
The framers of the Constitution, however, refused to follow the decision of the Judicial Committee,
and, accordingly, deleted 'Sedition' from Art. 19(2) as it stood in the Draft Constitution. Since Art. 19(2)
was amended in 1951, the constitutionality of s. 124A of the IPC may be discussed under two
heads:
Post-Constitution interpretation
I. Prior to the amendment of 1951, as a result of the deliberate omission of the word 'sedition' in
pursuance of the Federal Court decision84 noted above, criticism of the Government could be
penalised as an offence only when it was attended with violence or was calculated to bring about
'anarchy' so as to either undermine the 'security of the State' or 'tend to overthrow' it. 85 But mere
excitement of disaffection or bad feelings against the Government or even an unsuccessful attempt to
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excite bad feelings (which also comes within the purview of s. 124A) may not necessarily undermine
the 'security of the State' as explained by the Supreme Court in Romesh Thappar v. State of Madras .
86
SASTRI J. unequivocally observed--
"Deletion of the word 'sedition' from draft Art. 13(2), therefore, shows that criticism of Government
exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for
restricting the freedom of expression and of the press, unless it is such as to undermine the security or
tend to overthrow the State."
The Court also said:
"It is also significant that corresponding Irish formula of "undermining the public order or the authority
of the State", article 40(6)(i) of the Constitution of Eire 1937 did not find favour with the framers of
Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative
infringement of the right to free speech and expression and this was doubtless due to the realisation
that freedom of speech and of the press lay at the foundation of all democratic organisations, for,
without free political discussion, no public education, so essential for the proper function of processes
of popular government, is possible. A freedom of such amplitude might invoke risk of abuse.
Therefore, unless a law restricting freedom of speech and expression is directed solely against the
undermining of the security of State or the overthrow of it, such law cannot fall within the reservation
under clause (2) of article 19; although the restriction which it seeks to impose may have been
conceived generally in the interest of public order. It follows that s. 9(1-A) of the Madras Maintenance
of Public Order Act, 1949 which authorises imposition of restriction for wider purpose of securing
public safety or maintenance of public order falls outside the scope of authorised restriction under
clause (2) and is therefore void and unconstitutional."
It was further observed that when a restriction on fundamental right is clothed in language wide
enough to cover restrictions both within and without the limits of constitutionally permissible legislative
action affecting such right, the restriction shall fail in toto. Hence, following this principle, the East
Punjab High Court held that s. 124A of the Indian Penal Code was ultra vires, as being outside the
limits of Art. 19(2) as it stood before the amendment of 1951. 87
II. Let us now examine the effects of the amendment of Art. 19(2) by the Constitution (First
Amendment) Act, 1951, in view of the insertion of 'interest of public order' as a ground of restriction in
Cl. (2) of Art. 19, which did not exist at the time of the decision in Romesh Thappar's case.88
While it was held by some High Courts89 that there was nothing in the amended Cl. (2) which validates
s. 124A of the I.P.C., the Patna High Court90 held that the expression 'in the interests of public order' is
wide enough to cover incitement to violence.
On the above state of the law, the Author commented as follows in art. 19 of this Commentary--
"The arguments that are still available against the constitutionality of s. 124A are as follows--
As has been already pointed out in a later decision 91 the Supreme Court has explained that the
expression 'in the interests of' would not dispense with the requirement of proximity or rational
relationship between the restriction and the ground of restriction which the expression 'reasonable
restriction' demands.
The question is whether the mere expression of disaffection or hatred towards the government in
power (without incitement of violence) may be said to have a proximate tendency to a breach of the
public peace:
Secondly, the contents of the speech have also to be considered. It has been reiterated in many
cases,92 that an utterance which merely seeks to overthrow a party government by constitutional
means has no natural tendency to cause a public disorder and cannot, accordingly, be penalised in
the interest of public order.
Of course, there may be circumstances where the expression of a bad feeling towards the
Government in power may have a proximate tendency to cause a public disorder, even though the
speaker does not act ually incite the use of violence e.g., where fighting slogans are uttered before an
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already excited mob. But since the interpretation of s. 124A of the IPC by the Privy Council 93 is still
binding on our Courts, the section punishes any expression of disaffection even though it has no
tendency to cause disorder. It is to be remembered that the Privy Council rejected the view of the
Federal Court in Niharendu's case94 that in order to be punishable under s. 124A.

"the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men
that that is their intention tendency."95

If, therefore, s. 124A of the IPC includes within its ambit innocuous expressions, having no proximate
or reasonable connection with public disorder, it would cover restrictions "both within and without the
limits of constitutionally permissible legislative action"96 in the interests of public order and must be
struck down as an unreasonable restriction within the meaning of Art. 19(2).
If it is sought to save the section so as to penalise utterances which are violent or which would
normally lead to a breach of the peace, suitable amendments of the section would be necessary." 97
The above view of the Author of this Commentary has since found support from the decision of the
Supreme Court in Kedarnath v. State of Bihar ,98 which has overruled the interpretation of s. 124A as
given by the Privy Council in Sadashiv's case99 and returned to the narrow construction given by the
Federal Court in Niharendu's case.100 In Niharendu's case101 the Federal Court held that "public
disorder or the reasonable anticipation or likelihood of public disorder" was the gist of the offence of
sedition and that in order to be punishable under s. 124A,--"the act s or words complained of must
either incite to disorder or must be such as to satisfy reasonable men that is their intention or
tendency."
Proper interpretation of section 124A
The Supreme Court has in Kedarnath's case102 held that if the section were given the wide
interpretation as in Privy Council decision, it would be inconsistent with Art. 19(2) in as much as it
would then have no relation to the ground of restriction permissible under Clause (2) of Art. 19 viz.,
"the interests of the security of the State, or public order," which are relevant in the present context.
The Supreme Court has, accordingly, interpreted s. 124A to mean that an utterance would be
punishable under this section only when it is intended or has a reasonable tendency to create disorder
or disturbance of the public peace by resort to violence. It has also been observed by the Supreme
Court that the expression "the Government established by law" has to be distinguished from the
persons for the time being as the visible symbol of the State. What is punishable under s. 124A is,
therefore, not a criticism of the Government in power, however strong it may be, but utterances which
either intend or have a tendency to subvert the existing Government by means of violence. The
expression "in the interest of public order" in Art. 19(2) is capable of taking within itself not only those
acts which disturb the security of State, or are within "order publique", but also certain act s which
disturb the public tranquility or are breaches of the peace. 103 When a restriction is imposed in the
interest of public order, connection of restriction with the public order must be shown to be rationally
proximate or direct.104
In view of the above interpretation given by the Supreme Court 105 the question of constitutionality
raised by the vague word 'disaffection' has been obviated. In that case, court also held that there is
considerable authority in English Law for the view that 'public disorder' or incitement to or reasonable
likelihood of public disorder, is the gist of the offence of sedition and the acts or words complained of
must either incite to disorder or must be such as to satisfy reasonable men that, that is their intention
or tendency. The Court further said that s. 124A is valid once its application is limited to act s involving
an intention of a tendency to create disorder or disturbance of law and order or incitement to violence.
In cases of future prosecution under this section, the success of the State will, therefore, depend upon
making out a case that the utterances complained were either intended to cause disorder or violence
or have a proximate or reasonable tendency to cause such disorder or violence.
In R v. Chief Metropolitan Magistrate exparte Choudhary ,106 which concerned the novel that was
offensive to Muslims, it was held that sedition applies only to incitement against Govt. (including,
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however, any person exercising public function) and not to attacks on religious groups. In that case, it
was argued that the crime of seditious libel would extend to the image of Islam presented by the book
"Satanic Verses". This offence at one time seemed to cover any attack on the institution of the State,
but in modern times it has been interpreted to require an intention to incite violence and the words
used must have a tendency to incite violence. It was not therefore apt to cover the offence caused to
Muslims by the book, which could be said to be intended to arouse general hostility and ill-will
between sections of the community, but not against public authorities. Court held: "This case
concerned an attempt to bring criminal charges against Mr. Salman Rushdie, author of 'The Satanic
Verses'. It was alleged that publication constitutes seditious libel on the ground that "it raises
widespread discontent and disaffection among Her Majesty's subjects, contrary to common law".
When the Magistrate refused to issue summons, the applicant sought judicial review of his decision,
thereby providing an opportunity for reconsideration of the scope of seditious libel. Agreeing with the
magistrate, the Divisional Court followed the Supreme Court of Canada in Boucher v. R ,107 where it
was held that seditious intention on which a prosecution for seditious libel must be founded is an
intention to incite violence or to create public disturbance or disorder against Her Majesty or the
institution of government. Apart from thus reinforcing the requirement of an intention to promote
violence, this indicates a further qualification, namely, that sedition can no longer be constituted by an
intention to promote feelings of ill-will and hostility between different classes of subjects. According to
WATKINS LJ, not only must there be proof of incitement of violence in such cases, but it must be
violence or resistance or defiance for the purpose of disturbing constitutional authority. In this case,
given in the absence of any element of attacking, obstructing or undermining public authority, the court
held that the magistrate was bound not to issue the summons. The court also held that the law of
'blasphemy' applies only to attacks on Christianity and so Chief Magistrate's refusal to issue summons
was correct. To allow a prosecution in this case would have been judicial legislation, in other words be
exercised by Parliament. Since extremely complex matters of public policy would be involved in
deciding as to whether there should be any extension of the religious protected blasphemy and to
which religion it should be extended, the court refused to engage in speculation as to any reform
which should be made.
The result, in short, is that the Supreme Court has avoided a repeal or amendment of s. 124A, by
resorting to a narrow construction but the section has been upheld by the Supreme Court only in a
chastened form, denuding it of its age-old mischief.
'Sedition' is a crime against society nearly allied to that of treason and it precedes by a short interval.
Sedition in itself is a comprehensive term and it embraces all those practices, whether by word, deed
or writing which are calculated to disturb the tranquillity of the State and lead ignorant persons to
endeavour to subvert the Government and laws of the country. The objects of sedition generally are to
induce discontent and insurrection and stir up opposition to the Government and bring the
administration of justice into contempt; and the very tendency of sedition is to incite the people to
insurrection and rebellion. "Sedition" has been described as disloyalty in action and the law considers
as sedition all those practices which have for their object to excite discontent or dissatisfaction, to
create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign of the
Government, the laws or the Constitution of the realm and generally all endeavours to promote
disorder.
The law of sedition is largely an historic survival, except in its more precise statutory form. The word
"sedition" covers three indictable, but non-arrestable common law offences : the publication of a
seditious libel; the uttering of seditious words and conspiracy to do an act in furtherance of a seditious
intention. A seditious intention is necessary for all the three offences. It is an intention to bring into
hatred or contempt or to excite disaffection against the persons of the sovereign, or the government
and Constitution of United Kingdom as by law established or either House of Parliament or
administration of justice or to excite Her Majesty's subjects or an attempt otherwise by lawful means
the alteration of any matter in church or State by law established or to raise discontent or disaffection
amongst Her Majesty's subjects or to promote feeling of ill-will or hostility between different classes of
her subjects.108 It is not sedition to show the government has been mistaken, or to point out the defects
of the Constitution or to excite people to attempt by lawful means the alteration of the law relating to
church or State or to point out (with a view to their removal) matters which produce feelings of hatred
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or ill-will between classes of Her Majesty's subjects. In addition to seditious intent, it must be
established that the words have a tendency to incite public disorder. The truth of a statement is no
defence to a criminal charge if it is sedition.109
It is the fundamental right of every citizen to have his own political theories and ideas and to
propagate them and work for their establishment so long as he does not seek to do so by force and
violence or controverse any provision of law. Then where the pledge of a society amounted only to an
undertaking to propagate the political faith that capitalism and private ownership are dangerous to the
advancement of society and work to bring about the end of capitalism and private ownership and
establishment of a Socialist State for which others are already working under the lead of the working
classes, it was held that it was open to the members of the society to achieve these objects by all
peaceful means. Ceaselessly fighting public opinion that might be against them and opposing those
who desired the continuance of the existing order of the society and the present Government; that it
would also be legitimate to presume that they desired a change in the existing government so that
they could carry out their programme and policy; that the mere use of the words "fight" and "war" in
their pledge did not necessarily mean that the society planned to achieve its object by force and
violence".1
It was observed in Kedar Nath's casethat "comments, however strongly worded expressing
disapprobation of action of Government, without exciting those feelings which generate the inclination
to cause public disorder by act s of violence, would not be penal. In other words, disloyalty to
Government established by law is not the same thing as commenting in strong terms upon the
measures or acts of government or its agencies so as to ameliorate the condition of the people or to
secure the cancellation or alteration of those act s or measures by lawful means, that is to say, without
exciting those feelings of enmity or disloyalty which imply excitement to public disorder or the use of
violence".
Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did
not constitute any threat to the Government of India as by law established nor could the same give
rise to feelings of enmity or hatred among different communities or religion or other
groups.2Secularism is a basic feature of the Constitution. Hence it is imperative that if any individual or
group of persons, by their action or caustic and inflammatory speech are bent upon sowing seeds of
mutual hatred and their proposed act ivities are likely to create disharmony and disturb the equilibrium,
sacrificing public peace and tranquillity, strong action need to be taken. Any speech or act ion which
would result in ostracisation of communal harmony would destroy all those high values which the
Constitution aims at.3 But merely inciting the feeling of one community or group without reference to
any other community or group is not an offence nor when there is no charge that the person acted
against the Government.4
There are also other existing laws which prohibit or penalise the act of merely exciting disaffection
against the Government, e.g. s. 3(b) of the Dramatic Performances Act , 1876, and the same
conclusion must be reached regarding the validity of such provisions.
Section 124A, IPC , is referred to in several provisions of the Criminal Procedure Code, 1973, e.g., s.
95(1)(a). The decision in Kedarnath's case5 has therefore, to be applied in determining the ambit of the
offence referred to by s. 124A in those provisions.
Before we close this topic, it would be profitable to reproduce the words of LORD COLERIDGE in R.
v. Aldred 6 as to the scope of an individual's right to criticise the Government, which have been
rehabilitated in the interpretation of s. 124A, I.P.C. by the Supreme Court in Kedarnath's case:7
"A man may lawfully express his opinions on any public.....Matters of State, matters of policy, matters
even of morals--all these are open to him. He may state his opinion freely, he may buttress it by
argument, he may try to persuade others to share his views.... For instance, if he thinks that either a
despotism, or an oligrachy, or a republic, or even no government at all, is the best way of conducting,
human affairs he is at perfect liberty to say so. He may assail politicians, he may attack goverments
he may warn the executive of the day for not taking a particular course.... All that is allowed, because
all that is innocuous; but, on the other hand, if he makes use of language calculated to advocate or to
incite others to public disorders, to wit, rebellions, insurrections, assassinations, outrages or any
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physical force of violance of any kind, then, whatever his motives, whatever his intentions, there would
be evidence on which a jury... would decide that he was guilty of a seditious publication." 8
Criticism of a Minister
A closely connected question is whether the criticism of, or abusive slogans used against, the
Ministers individually can be penalised as an offence against the State without violating the
permissible limits under Art. 19(2) of the Constitution.
Prior to the Constitution
I. Prior to the adoption of the Constitution, the Judicial Committee of the Privy Council had held 9 that
the criticism of an individual Minister was punishable under s. 124A of the Indian Penal Code and
no question as to the constitutional validity of such law could arise at that time.
Under the Constitution
II. As to what would be the position under the Constitution, some light was thrown by the observations
of the Supreme Court in a criminal appeal10from a conviction under the Punjab Security of the State
Act, 1953. Following the language of Clause (2) of Art. 19 as it stands after the amendment of 1951, s.
9 of the Punjab Act made punishable with imprisonment any person who made or published any
speech or statement which
"undermines the security of the State public order, decency or morality, or amounts to...... defamation
or incitement to an offence prejudicial to the security of the State or the maintenance of public
order...".
The Appellants, who were members of a Motor Union, took out a procession against the policy of the
Punjab Government to nationalise motor transport, uttering abusive slogans against the Minister of
Transport and the Chief Minister, by name. The appellants were convicted on the ground that the
utterances (a) undermined public order, (b) undermined decency or morality, and (c) amounted to
defamation.
The Supreme Court, on appeal, negatived all the grounds levelled against the appellants.

24a)  As to decency or morality, the Court found that the appellants belonged to a
stratum of society where such vulgar abuses were so freely indulged in that they could
hardly have any effect on the persons hearing the same. Hence, the abuses in question
could not be held to have "undermined decency or morality."

25b)  More important was the question whether the utterances could be said to
have 'undermined public order'. The case of the prosecution was that some members of
the public who had congregated to hear the slogans were "annoyed" and that there
might have been a breach of the peace, had there been no police arrangement. The
Court found that the evidence fell short of establishing that there would have been a riot
as a result of these utterances against the Ministers, but for the police arrangements and
that, accordingly, it could not be held that the utterances had 'undermined public order'.

17c)  As to defamation, of course, the Court held that the utterances were
defamatory, but that defamation could be punished under the Security Act only if such
defamation was prejudicial to the security of the State or maintenance of the public
order. This part of the judgment is worthy of particular notice. The question before the
Court was not whether the appellants were punishable for the offence of deformation
under the ordinary criminal law of the land11 and, as the Court observed, the Ministers,
personally, had taken no notice of the uttances. "The appellants had been prosecuted
under the Security Act, which had been made by the State Legislature under its
legislative power relating to 'public order'.12Hence, defamation could be punished under
the Act only where it was of such a character as to be prejudicial to the maintenance of
public order. That it was not of such a character followed from the finding just referred to
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namely, that there was no evidence of the utterances leading to any reasonable
apprehension of breach of the peace.
Of course, the constitutionality of the Act under which the appellants had been convicted was not
raised in the case, and the decision rested solely on the interpretation of the statutory provision.
Nevertheless, the observations of the Supreme Court are clear enough to indicate the attitude of the
Court towards the ambit of Art. 19(2) also, since the very language thereof was reproduced in the Act .
The Constitution (Fortieth Amendment) Act, 1976 incorporated the Prevention of Publication of
Objectionable Matters Act 1976 in the Nineth Schedule. Objectionable matter has been defined as that
which incites disaffection towards government or to commit any offence or to interfere with the
production and distribution of essential commodities or seduction of any member of Armed Forces,
defamation of the President, Vice-President, Prime Minister, Speaker, or Governor of a State.
Restriction imposed on any of these grounds could not be challenged on the ground of
unreasonableness. Also with the inclusion of fundamental duties by the Forty-Second Amendment, the
implication is that nobody should exercise his freedom of speech and expression so as to violate the
fundamental duties, and it is likely that the court may be inclined to give a harmonious interpretation of
the restriction imposed on the exercise of the right and the fundamental duties as has been the case
with Directive Principles of State Policy.
Now that the Supreme Court has held13 that causing mere disaffection against the Government
established by law cannot be penalised in the interests of 'security of the State' or of 'public order',
there is no question of a mere criticism of a Minister being punished on those grounds. Public figures
like public officials often play an influential role in ordering society. It has been held that as a class the
public figures have, as the public officials have, access to man media communication both to influence
the policy and to counter-criticism of their views and activities. On this basis, it has been held that the
citizen has a legitimate and substantial interest in the conduct of such persons and that the freedom of
press extends to engaging in uninhibited debate about the involvement of public figures in public
issues and events.14
It is to be noted in this context that in England, since all authority emanated from the Crown and the
subject owed personal allegiance to the Crown, a mere criticism of the Crown or his Ministers who
were theoretically his servants or their actions were punishable by the law of criminal libel or sedition.
But in India, all authority is derived from the Constitution and not from the President or any other
dignitary, in person. Hence, mere criticism of any person or his actions can no longer be punishable by
the law of sedition. It can be suppressed only if it endangers the 'security of the State' as an institution
or the public peace; or constitutes an incitement to any offence. 15
In the U.S.A., too, it is firmly established that a person is not liable for any comment on the conduct of
public men relating to matters of public interest16 (even if the comment be defamatory).
It was in accord with the foregoing English view that the Federal Court 17 in India held that mere
criticism of the Government or public servants was not excluded from the freedom of expression and
that for defamation, if involved, the aggrieved official must pursue his personal remedies under the
ordinary law. "In a democratic society, those who hold position in government and who are responsible
for the public administration must always be open to criticism. Any attempt to stifle or fetter such
criticism amounts to political censorship of the most insidious and objectionable kind. 18
The position under the Constitution, in short, is--
The criticism of even vulgar abuse of a Minister19 or scurrilous attacks upon a Judge20 cannot be
punished in the interests of the security of the State, 21 nor even of 'public order'22 unless there is a
reasonable apprehension of breach of the peace to such an extent that it may be said that there is a
rational connection between the utterances and breach of the peace. Merely because the public is
'annoyed' by reason of the utterances is not enough. The remedy in such cases is an act ion for
defamation brought by the dignitary, under the ordinary law. 23
Section 199(2), CrPC , 1973
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In this context should be noted a special provision which has been made to protect Government
servants and high dignitaries from reckless defamation, in s. 199(2) of the CrPC ,
1973,24(corresponding to s. 198B of the CrPC , 1898), which practically saves these persons from the
trouble of making a personal complaint for a criminal proceeding for defamation in respect of his
conduct 'in the discharge of his public functions', by enabling a Court of Session to take cognizance of
the offence in such a case on the complaint in writing by the Public Prosecutor. The persons protected
by this special provision are--

28i)  The President and Vice-President of India;

27ii)  The Governor of a State and Administrator of a Union Territory;

18iii)  A Minister of the Union, State or Union Territory;

14iv)  Any other public servant.

The Constitutionality of this provision on the anvil of Art. 14 of the Constitution has not yet been tested.
Constitutionality of s. 3 of the Police (Incitement to Disaffection) Act, 1922
Section 3 of the Police (Incitement to Disaffection) Act, 1922, says--
"Whoever intentionally causes or attempts to cause, or does any act which he knows is likely to
cause, disaffection towards the Government established by law in India amongst the members of a
police-force, or induces or attempts to induce, or does any act which he knows is likely to induce, any
member of a police-force to withhold his services or to commit a breach of discipline shall be
punished....
Explanation.--Expression of disapprobation of the measures of the Government with a view to obtain
their alteration by lawful means; or of disapprobation of the administrative or other action of the
Government, do not constitute an offence under this section unless they cause or are made for the
purpose of causing or are likely to cause disaffection."
Though this provision also penalises the causing of 'disaffection towards the Government', there is a
difference between s. 124A of the IPC and the instant provision as to the audience of the utterance.
While under s. 124A of the IPC the utterance of expressions causing disaffection even to a friend or
relative may constitute an offence, under the present section,--the Police being entrusted with the
maintenance of public order and safety,--causing disaffection amongst the members of the Police or
inducing them to withhold their services or to commit a breach of discipline is sure to affect 'public
order'25 or 'security of the State' in its internal aspect. Hence, any such utterance may be reasonably
restricted in the interests of public order or security of the State. 26 The position, in this respect, is not
much different as between members of the Defence Forces and members of the Constabulary. 27
Where the withholding of services constitutes an 'offence' on the part of the Police Officer, in
incitement thereof would also be punishable as a restriction in the interests of 'incitement to an
offence'.28
Freedom of Speech and Airwaves
Hon'ble Supreme Court, in Secretary, Ministry of Information and Broadcasting, Government of India
v. Cricket Association of Bengal ,29 held that airwaves or frequencies are public property. Their use has
to be controlled and regulated by a public authority in the interest of public and to prevent the invasion
of their rights. Since the electronic media involves the use of airwaves, this factor creates an inbuilt
restriction of its use as in the case of any other public property. Broadcasting freedom is implicit in Art.
19(1)(a). It includes (a) freedom of broadcaster i.e., freedom from State control including censorship
by the govt.; (b) freedom of the listeners/viewers to access a variety of views; (c) right to access
broadcasting media, though it does not include a right to establish a private broadcasting station. The
use of airways which is public property can be regulated for balancing views and to prevent monopoly
over views relayed. But control must be vested in independent public corporation and should be
exercised in accordance with Art. 19(2). Any kind of pre-regulation, however of telecasting is fraught
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with difficulties and is likely to raise Art. 19(1)(a) issues. There are also other inherent difficulties in
deciding which views should or should not be telecast. The right of the viewer to choose what he can
view may got seriously affected if, apart from the grounds under Art. 19(2), other grounds such as
limited viewing time or sparse channels, are used for curtailing telecasts.
It was held that the right to impart and receive information is a species of the right of freedom of
speech and expression guaranteed by Art. 19(1)(a) of the Constitution and the citizen has a
fundamental right to use the best means of imparting and receiving information and as such to have
an access to telecasting for the purpose. However, this right to have an access to telecast has
limitation on account of use of the public property, viz., the airwaves involved in the exercise of the
right and can be controlled and regulated by public authority. (SAWANT & MOHAN JJ)
In an extensive judgment by JEEVAN REDDY J, concurring with the view that airwaves constituted
public property, held that being a public property unless statute permits the person to use a public
property, then only, subject to such conditions and restrictions as the law may impose, he can use the
public property to impart his information, views and opinion.
It was held that airwaves being a public property must be utilised to advance the public good and
public utilise by ensuring plurality of opinions, views and ideas and that would scarcely be served by
private broadcasters who would be and who are bound to be act uated with profit motive. JUSTICE
JEEVAN REDDY further said that airways being public property must be used for public good. What
does public good mean and signify in the context of broadcasting medium? In a democracy, people
govern themselves and they cannot govern themselves properly unless they are 'aware' - aware of
social, political and economic or other issues confronting them. To enable them to make a proper
judgment on those issues, they must have the benefit of a range of opinions on those issues. Right to
receive and impart information is implicit in free speech. The plurality of opinion, views and ideas is
indispensable for enabling them to make an informed judgment on these issues to know what is their
true interest, to make them responsible citizens, to safeguard their rights and also interest of society
and State.
Learned Judge further held that airways being public property, no one can claim the fundamental right
to speech and expression by using or employing public property. Only where the statute permits him,
to use the public property and then only and subject to such condition and restriction as the law may
impose, he can use the public property viz., airwaves. Learned Judge concluded that airwaves being
public property, can better remain in public hands in the interest of the very freedom of speech and
expression of the citizens of this country.
It is observed that there is a far greater likelihood of these private broadcasters indulging in
misinformation, disinformation and manipulation of views and thus the Government controlled media
which is at least subject to public and Parliamentary scrutiny.
It was held that entertainments including sports events are included in the fundamental right of
freedom of speech and expressions guaranteed under Art. 19(1)(a). It is observed that there is no right
to any licence or permission to telecast any sporting event through private channels and there is no
difference between such a claim and the right to establish and to operate telecast stations. It was held
by JUSTICE SAWANT & MOHAN that right to telecast sporting event will include right to education
and inform the present and the prospective sportsmen interested in the particular game and also
inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting
event, it is incorrect to say that free speech element is absent from his right. The degree of the
element will depend upon the character of the telecaster who claims the right. Learned Judge further
held that freedom of speech and expression is necessary for self-expression which is an important
means of free conscience and self-fulfilment. It enables people to contribute to debates on social and
moral issues. It is the best way to find the truest model of anything, since it is only through it that
widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to
democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all
sorts. The right to communicate therefore includes the right to communicate through any media that is
available, whether print or electronic or audio-visual such as advertisement, movie, article, speech,
etc. That is why freedom of speech and expression includes freedom of press. The freedom of the
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press in terms includes right to circulate and also to determine the volume of such circulation. This
freedom includes the freedom to communicate or circulate one's opinion without interference to as
large a population in the country, as well as abroad, as is possible to reach. To telecast a critical match
is not objectionable on any grounds mentioned in Art. 19(2). The only objection taken against refusal
to telecast is that of limited resources. Court said on that account the restriction to be imposed on the
right under Art. 19(1)(a) should be in addition to those permissible under Art. 19(2) and dictated by the
use of public resources in the best interest of society at large, is to misconceive both the content of
freedom of speech and expression and the problem posed by the element of public property in and
the alleged society of, the frequencies as well as by the wider reach of the media. If the right to
freedom of speech and expression includes the right to discriminate information to as wide a section
of the people as is possible, the access which enables the right to be exercised is also an integral part
of the said right. The wider of circulation of information or its greater impact cannot restrict the content
of the right nor can it justify its denial.
It was held that broadcasting media which includes radio and television is quite different from press.
There is an interconnection between free speech and stability of society. As we are yet to achieve the
goal of stable society, the country cannot afford unrestricted right to licensing.
The question whether to permit private broadcasters or not, it is for the Parliament to decide. If it
decides to permit, it is for the Parliament to decide, subject to what conditions and restrictions should it
be permitted. The fact remains that private broadcasters even if allowed should not be left to market
forces in the interest of ensuring that a wide variety of voices enjoy access to it.
It was held that which public broadcasting is implicit in Art. 19(1)(a), person cannot claim right to
broadcast. It was further declared that the press whose freedom is implicit in Art. 19(1)(a) stands on a
different footing. The Supreme Court was of the view that airwaves being public property and better
remain in public hands in the interest of the very freedom of speech and expression of the citizen of
the country.
It is further observed that the provisions of the Indian Telegraph Act 1885 and the rules made
thereunder are wholly inadequate to govern important media like radio and television. The Supreme
Court recommended the Government to make a law to place broadcasting media in the hands of
public or statutory corporations.
Fundamental right of speech and expression is also extended to telecast documentary films through
Doordarshan. It was held that freedom of speech and expression was broadly interpreted so as to
include the freedom to circulate ones views by words of mouth or in writing or through audio visuals
instrumentalities like radio and television subject to reasonable restrictions under Art. 19(2). The print
media, the radio and the tiny screens play a role of public educators, so vital to the growth of healthy
democracy.
It is observed that subject to reasonable restrictions placed under Art. 19(2), a citizen has a right to
publish, circulate and disseminate his views and any attempt to thwart or deny the same would affect
Art. 19(1)(a). In Union of India v. Cinemart Foundation ,30 Doordarshan refused to telecast a
documentary film on Bhopal gas tragedy on the ground that the contents being out-dated and do not
have relevances "now" for the telecast. It was held that the film maker has fundamental right to exhibit
his film and the party who claims it is entitled to refuse enforcement, is bound to prove by what law
that it need not telecast. The contention of Doordarshan was rejected and the right of the petitioner
was declared.
In Romesh v. Union of India ,31 a writ petition was filed to restrain the screening of serial "Tamas" on
television on the ground that it violated Art. 21 and 25 of the Constitution as well as Sections 58 of
the Cinematograph Act , 1952. The Court rejected the petition saying that the serial viewed in its
entirety "is capable of creating a lasting impression of message of peace and co-existence".
In Odyssey Communications Pvt. Ltd. v. Lokvidyayan Sanghatana ,32 the case related to telecasting of
a serial by name "Honi Anhonee". It was held in that case that the right of the citizen to exhibit films on
Doordarshan subject to terms and conditions by Doordarshan is a part of fundamental right of speech
and expression which can be curtailed only under circumstances set out in Art. 19(2). It was held that
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the citizen's right to exhibit films through television is similar to the right of the citizen to publish his
views through another media such as newspapers, magazines, advertisements, hoardings, etc.
subject to the terms and conditions of owners of the media. It was held that since the episode in
question did not violate any law nor serial is likely to affect the well-being of the people nor it is likely to
endanger the public morality, the serial could be broadcasted. It was in that case, the Supreme Court
declared that freedom of expression is "preferred right which is always very zealously guarded by this
Court".
Supreme Court of United States held that the purpose of First Amendment is to preserve an
uninhibited market force of ideas in which truth will ultimately prevail rather than to countenance
monopoly of the market, whether by Government itself or a licensee. The Court emphasised the right
of the listeners of the radio and the television programme to hear the different views on various topics
of public interest.33
In National Broadcasting Co. v. United States ,34 the court held that government licensing did not
violate the First Amendment because "unlike other modes of expression, radio inherently is not
available to all. In FCC v. National Citizens Committee for Broadcasting ,35 held regulation in making
licensing decisions between competing applicants as valid. It was held that "to deny a station licence
because "the public interest" requires it, is not denial of free speech". The regulations are a
reasonable means of promoting the public interest in diversified mass communication, then they do
not violate the First Amendment rights of those who will be denied broadcast licence pursuant to them.
In another Supreme Court case, the petitioner was interviewed by Doordarshan. But her views on
Muslim Right to Protection on Divorce Bill was not telecast. It was held that the omission to telecast
her views amounted to pre-censorship and deliberate distortion of Art. 19(1)(a) of the Constitution.
Regulation of speech in educational institutions
U. S. A.
In the U.S.A.,it has been held that in view of the nature of act ivities in an educational institution, such
as a school or a university, such institutions may make and enforce, reasonable rules to govern the
conduct of students as to the time, place and manner of speech within such premises. 36 That case
involved the validity of a public university's refusal to recognise "Students for a Democratic Society" as
a campus organisation because it was a radical group advocating violence and disruption. The Court
said that mere expression of such "repugnant" views would not justify the denial of First Amendment
Rights. In Tinker v. Des Moines School District ,37 the Court said that a student may express his
opinion even on controversial subjects like the conflict in Vietnam, if he does so without materially and
substantially complying with the requirement of appropriate discipline in the operation of the school
and without colliding with the rights of others. But, conduct by the student, in class or out of it - which
for any reason - whether it stems from time, place or type of behaviour--materially disrupts class work
or involves substantive disorder or invasion of right of others is, of course, not immunized to the
constitutional guarantee of freedom of speech. 38 In Bethal School District No.403 v. Fraser ,39 the court
said that First Amendment guarantees wide freedom in matters of adult public discourse. It does not
follow, however, that simply because the use of offensive e form of expression may snot be prohibited
to adults making what the speaker considers a political point, the same latitude must be permitted to
children of a public school. The First Amendment gave a high school student the class room right to
wear Tinker's arm band40 but not a Cohen's jacket.41 Surely it is a highly appropriate function of public
school education to prohibit use of vulgar and offence terms in public discourse. Court justified the
authority's action and held that First Amendment protection is not breached when the authorities
decided that the student be disciplined for the disruptive language he used while addressing a high
school assembly.
In regard to book-banning in public school, court said that the validity of book- banning in public
school, libraries turn on the motivation for the ban. If the decisive motivation was the desire "to deny
students access to ideas with which the school board disagreed, then the school board has exercised
its discretion in violation of the Constitution. But a school board act s validly if it removes books
because of a good faith belief that they are vulgar or otherwise educationally unsuitable. Suppression
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of ideas violates free speech, but limiting the school library to educationally suitable materials does
not.
A school may in its capacity as a publisher of a school newspaper or producer of a school play
'dissociate' itself not only from speech that would substantially interfere with its work or impinge upon
the right of other students, but also from speech, that is, for example, ungrammatical, poorly written,
inadequately researched, biased or prejudiced, vulgar or profane or unsuitable for immature
audiences. A school must be able to set high standards for the student speech that is disseminated
under its auspices and may refuse to disseminate student speech that does not meet those standards.
In addition, a school must be able to take into account the emotional maturity of the intended audience
in determining whether to disseminate student's speeches on potentially sensitive topics. In that case,
the school authorities refused to publish two articles in the school newspaper which dealt with
student's experiences with pregnancy and the other discussed with impact of divorce on students. The
refusal to publish these articles was held not violative of First Amendment. 42
At the same time, it has been held that this does not mean that an educational institution is immune
from the sweep of the Bill of Rights, e.g. the First Amendment;43 and that, accordingly, the institution
cannot proscribe the exercise of the freedom of expression or regulate its contents, in the absence of
overriding, considerations, such as public order, decency or protection of the rights of others. 44
Particularly, the Court is more liberal in dealing with cases of criminal prosecutions 45 violation of the
regulations made by such institutions, as distinguished from disciplinary sanctions, such as expulsion.
In the absence of any overriding public interest, such as discipline within the class or non-interference
with the class-work, students of a public school do not lose their constitutional right to freedom of
speech46 and the Court will not uphold any form of prior restraint upon the form or content of student
expression.47 But censorship over a school-sponsored magazine has been upheld, where the relevant
article dealt with sexual activity which was inappropriate for younger students. 48
In Healy v. James ,49 involved a public university's refusal to recognise student for Democratic Society
as a campus organisation because it was a radical group advocating "violences and disruption". It was
held that "the mere expression of such repugnant views would not justify the denial of First
Amendment Right".50
In regard to banning of certain books is school libraries, it was held "If the decisive motivation was the
desire "to deny students access to ideas with which the school board disagreed, then the school
board has exercised its discretion in violation of the Constitution". But if a school board act s validly if it
removes books because of a good faith belief that they are vulgar or otherwise educationally
unsuitable. Suppression of ideas violates free speech, but limiting the school library to educationally
suitable materials does not.51
India
Though cases like these have not yet taken place in India, it is evident that a student, being, a citizen,
is equally entitled to freedom of expression even within the University premises, subject to restrictions
and regulations to be imposed under any of the restrictive grounds specified in Cl. (2) of Art. 19. But in
the case of students, it is to be remembered that the interest of proper education would call for
discipline, under the heads of public order and morality, which has to be enforced by the head of the
educational institution, within reasonable limits. On the other hand, if any breach of discipline is
committed or there is an apprehension of breach of the peace, the head of an educational institution is
under no disability to call the Police simply because it is an educational institution. The truth is that
students are under no special liabilities nor enjoy any special privileges as distinguished from other
citizens.52
Guidelines in calendar dealing with general discipline in college banning political activities within the
campus and forbidding students from organising or attending meeting other than official ones within
campus is not designed to prohibit any of the fundamental rights of the students guaranteed under Art.
19(1)(a) or 19(1)(c). It is valid and legal in consonance with Arts. 19(1)(g), 29(1)(2) and 30(1) of the
Constitution. It is not a total prohibition of any fundamental right, but only a reasonable restriction
confined to college campus and the code of conduct cannot be flouted in the name of any other
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freedom or the rights guaranteed under Art. 19(1)(a) or 19(1)(c). Once students are admitted to an
educational institution they are bound by the code of conduct laid down by the educational institution
through the prospectus or college calendar, it is implicit that they should observe the code of conduct
necessary for proper administration and management of the institution. Restrictions are only
reasonable and designed to promote discipline in the educational institution so that the objectives of
the educational institutions could be achieved and wisdom of laying down those restrictions cannot be
challenged by the student after getting admitted to the educational institution. The right to admission
not being absolute, there could be regulatory measures for ensuring educational standards and
maintaining excellence in education. Rules are made for inter-discipline in the educational institution
which are made applicable equally to management, teaching staff, non-teaching staff and the student
community as a whole for its proper functioning and maintaining discipline. 53 A review petition was filed
to reconsider the decision and the order in review is reported in Kerala Students Union v. Sojan
Francis 54. While affirming the decision rendered earlier, it was further held that the relationship
between teachers and students is solemn and sacred and the relationship is not that of master and
servant, or employer and employee. Strike, dharna, gherao, go slow and absenteism are weapons
used by labour force for establishing their demands under the labour laws and they are not academic
tools to be used against the teaching faculty or against the management to vindicate the rights of
students. Such modes of bargaining power is foreign to the relationship between the teachers and
students and the employees and the management. University statutes do not contemplate such mode
of redressal. Strikes, gherao, dharna, bandh, etc. within the campus are illegal and do not have the
support of any law and could be prevented, failing which disciplinary action could be taken against
students. It was further observed that University laws in the State have effectively safeguarded the
rights of students. It was held that students could ventilate their grievances and express their views on
any political issue "as a co-curricular" act ivity through the forums as provided under the University
laws within the campus. Reliance was also placed on the decision of the Supreme Court of Pakistan in
M. Ismail Qureshi v. M. Awais Qasim ,55 wherein it was held that those who "indulge in politics" in
educational institution being a very small minority violate fundamental rights of a vast majority of the
students, their parents and guardians, besides of those who are otherwise directly or indirectly linked
or connected therewith. The Court even directed that at the time of admission to an educational
institution, the student and his parent/guardian shall give an undertaking that the students shall not
"indulge in politics" failing which he shall not be allowed admission. The Court noticed that the dignity
of teachers, the institution and the majority of student community has been severely and adversely
affected, besides infringement of several other fundamental rights including those relating to
movement, expression, speech, freedom of assembly and above all the dignity of the teachers and
large majority of students gets violated in one or other set of circumstances.
Though right to education is a fundamental right (to the extent spelt out in K.P. Unnikrishnan v. State
of Karnataka 56, it is not correct to say that the right to contest in a Students' Union election also forms
part of that fundamental right. Such right, to participate in Students' Union activities are only statutory
rights and not fundamental rights.57The majority for a legislative interference restricting political act
ivities by students within the campus was stressed in Harpal Singh v. Devinder Singh .58 The matter of
discipline in University is equally important for conducive academic environment, and larger interests
of academic community are more important than individual interest of a student. In matter of discipline
or administration of internal affairs of a university, court should be most reluctant to interfere. 59
Regarding ragging incidents in educational institutions, court said that it is a set of indiciplined
activities undertaken by the seniors to break the ice with the juniors. It is a human right violation.
Ragging can be by physical abuse or mental harassment. It is a form of systematic and sustained
physical, mental and sexual abuse of fresh students at college/university or any other educational
institution at the hands of senior students of the same institution or sometimes even by outsiders. It
includes (a) teasing, abusing of, playing practical jokes on or causing hurt to, such students or (b)
asking the student to do any act or perform something which the student will not, in the ordinary
course, willingly do. It means causing, inducing, compelling or forcing a student, whether by way of
practical joke or otherwise to any act which detracts from a human dignity or violates his person or
expose him to ridicule or to forbear from doing any lawful act, by intimidating, wrongfully restraining,
confining or injuring him or by using criminal force to him by holding out to him any threat of such
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intimidation, wrongful restraint, wrongful confinement, injury or the use of criminal force. In University
of Kerala v. Principles of Colleges in Kerala ,60 court directed all universities and principles of colleges
to take immediate measures to prevent ragging in any institution. Various directions were given to
implement the directions.
In University of Kerala v. Council of Principles of Colleges, Kerala ,61 Supreme Court constituted a
Committee to focus on evils of ragging and to recommend preventive measures to be taken from
incidents of ragging.62
Freedom of Advocacy
Advocacy touches and asserts the primary values of freedom of expression. It is a practical
manifestation of the principle of freedom of speech. Freedom of expression in argument encourages
the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity,
equality and justice. Freedom of expression, therefore, is one of the basic conditions for the progress
of advocacy and for the development of every man including legal fraternity practising the profession
of law. It is essential to the rule of law and liberty of the citizen. But they equally owe countervailing
duty to maintain dignity, decorum and order in court proceedings or judicial process. The liberty of free
expression is not to be confounded or confused with licence to make unfounded allegations against
any institution, much less the judiciary. A citizen is entitled to bring to the notice of the public at large
the infirmities from which any institution including the judiciary suffers from. Healthy and constructive
criticism are tools to augment its forensic skills and for improving its functions. In a free democracy,
everybody is entitled to express his honest opinion about the correctness or legality of a judgment or
sentence or an order of Court, but he should not overstep the bounds. He is entitled to express that
criticism objectively and with detachment in a dignified language and respectful tone with
moderation.63 Art. 19(1)(a) and (g) guarantees fundamental rights to advocate and freedom of
expression include their right to present the document prepared by them before the court or tribunal
and this cannot be nullified by any government order. 64 Scurrilous abuse of a judge or court or attacks
on the personal character of Judge are punishable as contempt. Punishment is inflicted to prevent
mischief which undermines or impairs the authority of court. That is why court regards with particular
serious allegation of partiality or bias on the part of the judge of a court. 65
The freedom of speech and expression cannot be used for committing contempt of Court nor can legal
profession be practised by committing contempt of court. The right to continue to practise is subject to
the law of contempt. The law does not mean merely the statute law, but also constitutional provisions.
The right, therefore, is subject to the restrictions placed by the law of contempt as contained in the
statute. It was held that there is no conflict between the provisions of Contempt of Court Act and the
power of the Supreme Court and High Court under Arts. 129 and 215 respectively and Arts. 19 (1)(a)
and 19(1)(g) read with Arts. 19(2) and 19(6).66 An advocate, as a citizen of the country, has the
fundamental right of freedom of expression and speech under Art. 19. This right is also guaranteed
under the Advocates Act . Apart from that, the legal profession has the inherent right to express itself
in the best manner possible in uninhibited language. But, if litigants and their counsel start threatening
the Judge or launch prosecution against him for what he has done honestly and bona fidedone in his
Court, the judicial independence would vanish eroding the very edifice on which the institution of
justice stands. It would also be in violation of the statutory protection available to Judges and
Magistrates under the Judicial Officers (Protection) Act as also Judges (Protection) Act. Any threat of
filing a complaint against the Judge in respect of the judicial proceedings conducted by him in his own
Court is a positive attempt to interfere with due course of administration of justice and such act ion is
not protected under the freedom of speech and expression. 67 It is apparent that contempt jurisdiction is
to uphold the majesty and dignity of law courts and the image of such majesty in the minds of the
public cannot be allowed to be distorted. Any action taken on contempt or punishment enforced is
aimed at protection of freedom of individuals and orderly and equal administration of laws and not for
the purpose of providing immunity from criticism to the judges. The superior courts have a duty to
protect the reputation of judicial officers of subordinate courts, taking note of the growing tendency of
maligning the reputation of judicial officers by unscrupulous practising advocates who either fail to
secure the desired orders or do not succeed in browbeating for achieving ulterior purpose. Such an
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issue touches upon the independence of not only the judicial officers, but brings the question of
protecting the reputation of the institution as a whole.
The dangerous trend of making false allegation against judicial officers and humiliating them requires
to be curbed with heavy hands; otherwise, the judicial system itself would collapse. The Bench and
the Bar have to avoid unwarranted situation on trivial issues that hamper the cause of justice and in
the interest of none. "Liberty of expression" is not to be confounded or confused with licence to make
unfounded allegation against any institution much less the judiciary. A lawyer cannot be a mere
mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial
officers merely because his client has failed to secure the desired order from the said officer. A
deliberate attempt to scandalise the court which should shake the confidence of the litigating public in
the system, would cause a very serious damage to the institution of judiciary. An advocate in a
profession should be diligent and his conduct should be diligent and conform to the requirements of
the law by which an advocate plays a vital role in the preservation of society and justice system. Any
violation of principle of professional ethics by an advocate is unfortunate and unacceptable. 68 An
advocate using most filthy words which tantamount to interference with due course of proceedings
amounts to contempt.69
"An advocate is at liberty when addressing the Court in regular course to combat and contest strongly
any adverse views to the Judge or Judges expressed on the case during its argument, to object and
protest against any course which the Judge may take and which the advocate thinks irregular or
detrimental to the interests of his client and to caution juries against interference by the Judge with
their function or with the advocate when addressing them, or against any strong views adverse to his
client expressed by the presiding Judge upon the facts of a case before the verdict of the jury thereon.
An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's
case.70
Advocates have no right to stall court proceedings on the ground that they have decided to go on
strike. Lawyers have no right to strike and cannot boycott Courts, nor any Bar Association can pass
any resolution calling for a strike to boycott Court. Members of the association can simply ignore such
a call by the association. Since the duty of a lawyer is to assist the court in the administration of
justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously
abide by the code of conduct behoving the noble profession and must not indulge in any act ivity
which may tend to lower the image of the profession in society. Any strike by advocate will infringe the
fundamental right of the litigant public of speedy trial and disposal of cases. Even assuming that the
lawyers are trying to convey their feelings or sentiment and ideas through strike in exercise of their
fundamental right to freedom of speech and expression guaranteed under Art. 19(1)(a) of the
Constitution. The exercise of the right under the said clause will come to an end when such exercise
threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of
the right under Art. 19(1)(a).71
Sometimes the need for uninhibited expression is of such a high order that the occasion attracts
absolute privilege as with statements made by judges, advocates, witnesses in the course of judicial
proceedings.72 In English law, no action for libel or slander lies whether against judges, counsel or
witnesses or parties for words written or spoken in the course of any proceeding before any Court
recognised by law.73 In Munster's case, it was held that counsel is also entitled to absolute privilege
like judges and witnesses.
The Supreme Court of Pakistan considered this question in Moosa v. Mohammed ,74 wherein it was
held that "English Courts have extended the privilege much more than was reasonably necessary to
protect the interest or discharge of the duty of an advocate which is foundation of his privilege. It is
true that public interest and for the benefit of administration of law, a lawyer requires protection and
that his immunity should be large enough to enable him to perform his legal duties honestly and
fearlessly and that he should not be exposed to the risks of a spiteful litigation. But it does not mean
that he should have the privilege of being malicious. His duty is to assist Court, to protect the interest
of his client. He, however, should not be given the licence to make such defamatory statements which
are not pertinent to the discharge of his duties or to the protection of the interest of his client. When
there are privileges there are also corresponding obligations and liberty should not be allowed to
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degenerate into licence. The court has, therefore, to see whether what is said in response to a duty or
right, is quite connected with and relevant to the issue in question. But if the statement deals with a
matter which is not in any reasonable sense germane to the subject matter in issue, the protection or
privilege should not be extended to that statement. If, however, having regard to all the circumstances
of the case, the advocate might have honestly and on reasonable grounds believed that what he wrote
or said was true and necessary for the protection of the interest of his client or discharge of his duties,
he should be protected".
But a more liberal view has been taken by the same Supreme Court in Masroor Ahsaw v. Ardeshir
Cawasji ,75 keeping in view the modern trend about contempt law obtaining in the world to protect and
project the freedom of speech and expression and freedom of press subject to reasonable restriction.
It was held: "We as the Pakistani nation should learn tolerance and inculcate the habit of appreciating
the opposite point of view. Furthermore, our approach should not be short-sighted or prompted by
expediency, but should be oriented with the object to promote Islamic, social and political justice and
to achieve the goal of establishment of an egalitarian society, which cannot be attained unless we
strive to strengthen the institution including the judiciary. I may state that without an independent
judiciary neither there can be stability in the country nor the rule of law which are sine qua non for a
progressive state".
In S.M. Haq v. Hon'ble Judges of the High Court,76 the Court said:

"It is not universally true to say that the counsel enjoy the same degree of liberty of expression as is possessed
by court. The demands of judicial comity and courtesy lay upon courts a duty to exercise the power of criticism
of courts of inferior jurisdiction with restraint, and, in its application to counsel invoking superior jurisdiction, this
obligation is reinforced by consideration arising out of the necessarily tentative nature of the submissions made
by counsel. In other words, without minimising in any way the function of stating in substance what he wishes
the court to hold, the counsel should be careful not to add to the difficulties of his position by needless
stringency of language. Provided the criticism is advanced with the single purpose of aiding in due
dispensation of justice, no words employed can be too strong, if in choosing them, it is also borne in mind that
so far as possible, no words should be used which gratuitously bring disrespect, to or belittle the judge of the
court whose work is being criticised. Also several factors conducting to strength of expression are present,
such as the need to establish an error "so outrageous as to shock the basis of justice; the requirement of
brevity in expression and the anxiety of counsel to place his client's case to the best advantage before the
ultimate court of appeal, it should nevertheless not be beyond the capacity of counsel practising in this court to
gain their end without transgressing the limits of reasonable expression. The ample range and scope of legal
language and terminology provide the medium and a guiding principle must be laid down, it may be found in
the dictum - if there must be excess - let it be an excess of gentleness".

Freedom of the Press and Censorship

The Press is one of the organs through which thoughts and ideas are expressed and discussed. The
freedom of the Press is, therefore, a necessary concomitant of the freedom of expression which
involves a right to receive and impart information,77 without which democracy becomes an empty
slogan.
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside the
government as an additional check on the three official branches - executive, legislative and judiciary. 78
The democratic credentials of a State are judged today by the extent of the freedom press enjoys in
that State. It was observed: "acceptance by government of a dissident press is a measure of the
maturity of the nation".79 A free press stands as one of the interpreters between the Government and
the people. To allow it to be fettered is to fetter ourselves. 80
Media enjoys a high level of protection because it is a watchdog over government on behalf of the
public.81 In Heetor v. AG of Antigua and Bermuda ,82 learned Judge LORD NICHOLLS said: "...in a free
democratic society, those who hold office in government must always be open to criticism. Any
attempt to stifle or fetter such criticism amounts to political censorship of the most insidiuous and
objectionable kind".
In Jersild v. Denmark ,83 the case was concerned with a television interview with representation of
extremist political group. The interview was edited to highlight abusive remarks made about ethnic
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groups within Denmark. The TV interviewer who did not challenge the racist remarks was charged
with aiding and abetting the offence of threatening, insulting or degrading a group of persons on
account of their race, colour, national or ethnic origin or belief. The court held by majority that the
interview was protected by article 10 because of the duty of the press to report controversial opinion in
its role of public watchdog and the corresponding right of the public to be informed It is not for the
court to decide how journalists presented their material provided that, taken in its whole context, the
broadcast did not support the views put forward. In these circumstances, restricting the press was not
necessary in a democratic society as required by article 10.84
"In a modern developed society, it is only a small minority of citizens who can participate directly in the
discussions and take decisions which shape the public life of that society. The majority can also
participate indirectly, by exercising their rights as citizens to vote, express their opinions, make
representations to the authorities, form pressure groups and so on. But the majority cannot participate
in the public life of their society in these ways, if they are not alerted to and informed about matters
which call or may call for consideration and act ion. It is largely through the media, including of course
the press, that they will be so alerted and informed. The proper functioning of a modern participating
democracy requires that the media be free, active, professional and enquiring. For this reason, the
Courts here and elsewhere, have recognised the cardinal importance of press freedom and the need
for restriction on that freedom to be "proportionate" and no more than is necessary to promote the
legitimate object of the restrictions".85 Among the rights protected by European Convention as human
rights, some judges have claimed that freedom of expression has an "especially high status". 86
Without freedom of expression by the media, freedom of expression would be a hollow a concept. The
interest of democratic society in ensuring a free press weighs heavily in the balance in deciding
whether any curtailment of this freedom bears a reasonable relationship to the purpose of curtailment.
In this regard, it should be kept in mind that one of the contemporary functions of the media is
investigative journalism. This act ivity, as much as the traditional activities of reporting and
commenting, is part of the vital role of the press and media generally. 87
In Reynolds v. Times Newspapers ,88 the House of Lords rejected the approach of American Supreme
Court in New York Times v. Sullivan .89In the American case, interpreting the First Amendment, court
created a new law of libel concerning matters of public or general interest under which the press has
much greater freedom to publish information and comment than under English Law. Thus, in an act
ion brought by a public figure, the plaintiff must prove that the publication was false, that it was
published either with clear knowledge of its falsity or with some serious doubts as to its truth.
Commenting on the American decision, High Court of Australia observed that the great virtue of the
American approach is that it "offers some protection to the individual who is defamed and at the same
time offers a large measure of protection to the publisher". 90 In Reynold's case, the House of Lords
nevertheless concluded that American approach did not go far enough to protect the reputation of the
individual from being besmirched without foundation; it was also thought to be "unsound in principle"
to distinguish between political discussion from discussion of other matters of serious public concern.
The House of Lords preferred a solution that enabled freedom of speech to be confined to what is
necessary in the circumstances of the case and one in which "having regard to admitted or proved
facts, the question whether the publication was subject to qualified privilege is a matter for the judge".
It has since been held that there is no qualified privilege in a newspaper report alleging corruption by a
sports personality91 and that the defence must be established on the basis of information known at the
time of publication, thereby excluding information which may be discovered subsequently. 92
"The existence of a free press is an essential element in maintaining Parliamentary democracy. But it
is important to remember why the press occupies this crucial position. It is not because of any special
wisdom, interest or status enjoyed by the proprietors, editors or journalists. It is because the media are
the "eyes and ears" of the general public. They act on behalf of the general public. Their right to know
and their right to publish is neither more nor less than that of the general public. Indeed, it is that of the
general public for whom they are trustees. If the public interest in the safety realm or other public
interest requires that there is no general dissemination of particular information, the media will be
under a duty not to publish. The duty is owed to the public as much as the confider". 93
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While considering Art. 10 of the European Convention of Human Rights in support of the proposition
that the press should be seen as the "eyes and ears" of the public when matters of political
controversy are in issue, it was observed: "It is incumbent on the press to impart information and ideas
of public interest. Not only does the press have the task of imparting such information and ideas, the
public have also a right to receive them.94 In a case involving a State attempt to punish political libels
on Art. 10(2) basis, not of protecting an individual's reputation, but preserving public order, it was
observed: "the prominent rule of the press in a state governed by the rule of law must not be
forgetten.....freedom of the press affords public one of the best means of discovering and forming an
opinion as the ideas and attitude of their public leaders." 95 In De Haes and Gijsels v. Belgium ,96 the
applicant published a number of detailed articles in which they vehemently criticised, made personal
attacks on and alleged bias against Court of Appeal Judges over a custody judgment they had made.
Three of the Judges brought defamation act ion against the applicant. The applicant complained to the
Commission that although the infringement came under one of the legitimate aims, namely, protection
of the reputation or rights of others, the "interference was not necessary in a democratic society"
under Art. 10(2). The court did not doubt that it was in public interest that the public should be aware
of the custody battle going on and the decision of the court. They said that freedom of expression is
not limited to publishing wholly innocent information which is inoffensive or indifferent, but also
includes robust criticism that some may find objectionable, provide those statements do not overstep
the bounds, such that interference is justified under "legitimate aims" in article 10 (2). Here, opinions
were given, which were based on facts and thus regarded by court as permissible. The comments
were keeping with the overalls tone of the events that had taken place, and hence there had been
violation of Art. 10.
According to LORD DENNING, "The freedom of the press is extolled as one of the great bulwarks of
liberty. It is entrenched in the constitution of the world. But it is often misunderstood ... It does not
mean that the press is free to ruin a reputation or to break a confidence or to pollute the course of
justice or to do anything unlawful.
It means that there is to be no censorship. No restraint should be placed on the press as what they
should publish. Not by a licensing system. Not by an executive direction. Not by Court by injunction. It
means that the press is to be free from what Blackstone calls "previous restraint" or what our friends in
the United States ... call "prior restraint". The press is not to be restrained in advance from publishing
whatever it thinks right to publish.
It can publish whatever it chooses to publish. But it does so at its own risk. ... Afterwards, after the
publication, if the press has done anything unlawful, they can be dealt with by the Courts. If they
offend by interfering with the course of justice, they can be punished in proceedings for contempt of
court. If they should damage the reputation of innocent people, they may be made liable for
damages".97
Another learned judge in the same case said: "The press is not above law. BLACKSTONE was
concerned to prevent government interference with the press".
A free press stands as one of the great interpreters between the Government and the people. To allow
it to be fettered is to fetter ourselves.98
"Imperative is the need to preserve inviolate the Constitutional rights of free speech, free press and
free assembly in order to maintain the opportunity for free political discussion, to the end that
Government may be responsive to the will of the people and that changes, if desired, may be obtained
by peaceful means. Therein lies the security of the Republic, the very foundation of Constitutional
Government.99 According to JUSTICE HIDAYATHULLAH, "Democracy is also a way of life and it must
maintain human dignity, equality and the role of law. It requires strong public opinion, independence
and fearlessness in the Press and in educated men and women who are not complaint to authority
wrongly exercised.100
"...Imperative is the need to preserve inviolate the constitutional right of free speech, free press and
free assembly in order to maintain the opportunity for free political discussions, to the end that
Government may be responsive to the will of the people and that changes, if desired, may be obtained
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by peaceful means. Therein lies the security of the Republic, the very foundation of Constitutional
Government".101
While considering certain provisions of Official Secrets Act 1989 compared with ECHR, court said
that European Court of Human Rights (ECHR) has recognised that press has a special position as a
guardian of public interest.102
The attitude towards the press, however, differs in England from that in the United States and many
other countries.
U.K.
(A) England.--In England, the law does not recognise any special privilege attaching to the profession
of the press as distinguished from the members of the public. As Dicey put it, "The simplest way of
setting forth broadly the position of writers in the Press is to say that they stand in substantially the
same position as letter-writers."103
The reason has been explained by the Privy Council, in a case from India, 1 thus:
"The freedom of the journalists is an ordinary part of the freedom of the subject, and to whatever
lengths the subject in general may go, so also may the journalist, but apart from statute law, his
privilege is no other and no higher. The responsibilities which attach to his power in the dissemination
of printed matter may, and in the case of a conscientious journalist do, make him more careful, but the
range of his assertions, his criticism or his comments, is as wide as, and no wider than, that of any
other subject."2
In the words of BLACKSTONE,3 --
"The liberty of the press... consists in laying no previous restraints upon publications, and not in
freedom from censure for criminal matters when published".
In the same strain observed LORD MANSFIELD--
"The liberty of the press consists in printing without any previous licence, subject to the consequences
of law".4
Freedom carries with it responsibilities even for the press; freedom of the press is not free from
responsibility for its exercise.5 In Nebraska Press Assn. v. Stuart ,6 it was reiterated, "The extraordinary
protection afforded by the First Amendment carry with them something in the nature of a "fiduciary"
duty to exercise the protected right responsibility - a duty widely acknowledged but always observed
by editors and publishers".
Freedom of Press in England means the right to print and publish anything which is not prohibited by
law or made an offence, such as sedition, contempt of court, obscenity, defamation, blasphemy. 7 It
was held therein that liberty of press consists in printing without any previous licence subject to
consequences of law.
Absence of previous restraint
This negativeconcept of the freedom of the press, in England, is due to the fact that there was indeed
an Act of Parliament, the Licensing Act of 1643,--which prohibited the printing of any literature without
licence and that the freedom of the press was asserted by men like Milton for the abolition of this
system of licensing and pre-censorship. In 1694, Parliament allowed the Licensing Act to expire, and
since then there has been no further attempt to introduce any previous restraint on the publication of
printed matter.
The reason why "prior restraint" was obnoxious, but not subsequent punishment was explained by
BLACKSTONE thus: "Any form of prior restraint is a fetter on the free will of the people and an attempt
to control the liberty of expression by administrative authorities. A consequent punishment does not
put any restraint on the freedom of thought or expression; it only takes an account of the abuse of the
freedom by punishing anybody who publishes anything "which has been made illegal by law, as
injurious to the society. By punishing licentiousness, subsequent punishment thus "maintains" the
 219

liberty of the press". (See Art. 14 ante). After taking into consideration various decisions, our Supreme
Court in Express Newspapers Ltd. v. UOI 8 said: "The necessary corollary thereof is that no measure
can be enacted which would have the effect of imposing pre-censorship, curtailing the circulation or
restricting the choice of employment or unemployment in the editorial force. Such a measure would
certainly tend to infringe the freedom of speech and expression and would therefore be liable to be
struck down as unconstitutional".
Noting that, Framers of the First Amendment sought to secure atleast as much press freedom as
prevailed in England, the Supreme Court of America ruled that prior restraints are constitutionally
suspect. Near v. Minnesotta ,9 established Court's position on prior restraints. In that case, court struck
down a Minnesotta law that permitted judges to enjoin publication of "malicious, scandalous and
defamatory" newspapers. Speaking for the court, it was held that State has a legitimate interest in
curbing such publication and could prosecute those who published them but argued that this interest
did not justify prior restraints against publication, as such restraints could be "tolerated only in
exceptional cases". Prior restraint was impermissible unless publication involved jeopardised the
country's safety in wartime, threatened public safety (obscenity), incited violence or governmental
overthrow or invaded private right.10 In New York Times v. United States ,11 court vacated an injunction
restraining publication of the Pentagon papers a top secret account of nation's involvement in the
Vietnam War, despite objection that the publication would threaten national security.
Section 12 of the Human Rights Act also provides some guidance. Except in exceptional
circumstances interlocutory injunctions are not to be granted without notice to the other side and they
should not be granted unless the court is satisfied that the applicant is likely to succeed on the merits
at the trial. In deciding whether to grant relief, a court is to have special regard to the ECHR rights on
freedom of expression. Where proceedings relate to journalistic, literary or artistic material, particular
regard must be had to the extent to which the material is or is about to become available to the public;
the extent to which publication would be in public interest and any other privacy code. (s. 12(4)).
But though licensing or censorship has been abolished, some forms of control otherwise than by way
of punishment after trial for an offence, has been introduced by statute, since the days of Dicey. Thus,
the Obscene Publications Act, 1959, authorises the search for and seizure of obscene articles
reasonably suspected of being kept for publication for gain for the purpose of bringing them before a
Magistrate for security and forfeiture. Indecent or obscene articles or matters prejudicial to public
safety, despatched through the mails, may be (retained and destroyed, under he Post Office Act,
1953; Customs Officers may seize Indecent or obscene works imported from abroad under the
Customs and Excise Management Act, 1979.12
U.S.A.
(B) U.S.A.--The Constitution of the United States13 and of the other countries which have followed it, 14
specifically guarantee the freedom of the Press on the recognition of the special importance of the
press as an organ of publicity.
There is little difference of opinion in countries having a representative form of government that
freedom of the Press is essential to keep the public informed and enlightened in public issues on
which the success of representative government rests.15
The difference in attitude, however, does not produce much difference in the result, in as much as the
Constitutions of all these countries provide that the freedom of the Press must be exercised subject to
the ordinary limits imposed by law on the freedom of expression.
There have been some jurists and judges who consider the First Amendment as an "absolute"
guarantee of freedom of speech and the press, admitting no exceptions whatsoever. But consensus of
opinion today is that the liberty of the press, however, essential it may be, cannot be a licence. 16
In First National Bank of Boston v. Bellotti ,17 in the concurring judgment of JUSTICE BURGER, it was
observed "There are those who view the Press Clause as some how conferring special and
extraordinary privileges or States on the "instituting of press". I perceive two fundamental difficulties
with such a reading of the Press Clause. First, although certainly on this point is not possible, the
history of the Clause does not suggest that the authors contemplated a "special" or "institutional
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privilege". Most pre-First Amendment commentators "who employed the term freedom of speech used
it synonymously with the freedom of press. The second fundamental difficulty with interpreting the
Press Clause as conferring special status on a limited group is one of definition. The very task of
including some entities within the "institutional press" which excluding other is reminiscent of the
abhorred licensing system that the First Amendment wanted to ban. In my view, the First Amendment
does not "belong" to any definable category of person or entities. It belongs to all who exercise its
freedom."18 In that case, the Court also held: "The inherent worth of speech in terms of capacity for
informing the public does not depend on the identity of its sources, whether corporate, association or
individual and that the Press does not have a monopoly on either the First Amendment or the ability to
enlighten". The majority struck down a State law that had barred corporation and banks from spending
money to make known their views on issues not materially affecting their business. This decision
would have far reaching effects - (a) It would enable a corporation to spend shareholder's money on
political controversies and issues, which was outside the purpose of their incorporation (say banking)
and for which purpose, the shareholders had not invested their money in such corporation; (b) It would
enable the corporation to compete with the Press, without labeling itself as a Press and complying
with those formalities prescribed by law for setting up a Press". 19
In Associated Press v. NLRB ,20 the Court said that press is not in any better position than individuals
to the liability to pay non-discriminatory taxes which have to be levied for support of the government. 21
In an act ion for libel, it was held that the press is not entitled to any greater protection than other
speakers.22 The constitutional law of libel can be schematically out- lined as follows:- If a plaintiff is a
public official or public figure, rule of actual malice must be applied. 23 If the plaintiff is a private figure
and defamation is of public concern, recovery of act ual damages requires proof of actual malice. If
the plaintiff is a private figure and the defamation is of purely private concern, act ual and punitive
damages can be recovered upon proof of negligence. Left unresolved is the question whether actual
malice or some other standard should afford special protection for the media defendants in private
figure defamation cases although a majority of five rejected the idea in Greenmoss Builder's case.24 In
Milkovich v. Lorain Journal Co .,25 the Court rejected the idea that opinion automatically receives
constitutional protection. Nevertheless, the court observed that opinion relating to matters of public
concern and which do not contain a provably false factual connotation are entitled to constitutional
protection.26
Press is a Powerful engine which is liable to be grossly abused. Rosenbloom v. Matromedia ,27 and
may be turned into an engine of oppression of the individual unless subjected to some social control to
this end. Like any other individual freedom, therefore, this freedom cannot be absolute, but must be
subject to some restrictions in collective interest. It was observed: "There comes a time" when even
speech loses its constitutional immunity. Speech innocuous one year may at another time fan such
destructive flames that it must be halted in the interests of the safety of the Republic. When conditions
are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a
halt. Otherwise, free speech which is the strength of the Nation "will be the cause of destruction".
Dennis v. U.S .,28 by BLACK, J - dissenting opinion. Freedom carries with it "responsibility" even for the
press; freedom of press is not a freedom from responsibility for its exercise. 29 It was declared that "the
extraordinary protections afforded by the First Amendment carry with them something in the nature of
a "fiduciary duty " to exercise the protected rights "responsibly" - a duty widely acknowledged, but "not
always" observed by editors and publishers.30
Freedom of press without "any" limitation whatever what is an "inestimable" privilege in a free
government, might become the "scourge" of the republic. 31 It was held in those cases that this would
be to allow to every citizen a right at his pleasure to endanger the reputation, the peace, the property
and even the personal safety of every citizen.
The First Amendment does not give the media the right to broadcast some one does "property" i.e, to
broadcast a performer's entice act without consent and if it violated, the press is liable to
compensate.32 In the case of copyright protection it was observed that copyright's purpose is to
promote the creation and publication of free expression. Moreover copyright law contains built First
Amendment accommodations. First, it distinguishes between ideas and expression and makes only
the latter eligible for copy protection. Due to this destruction, every idea, theory, and fact in a copyright
 221

work becomes instantly available for public exploitation at the moment of publication. Second, the "fair
use" defence allows the public to use not only facts and ideas contained in a copyrighted work, but
also the expression itself in certain circumstances. The defence provides "The fair use of a
copyrighted work, including such use by reproducing in copies.... for purposes such as criticism,
comment, news reporting, teaching scholarship or research, is not an infringement of copyright. The
fair use defence affords considerable latitude for scholarship and comment" and even for parody. 33 In
Cox Broadcasting Corpn. v. Cohn ,34 court held that civil liability could not be imposed on a
broadcaster who had released the name of a deceased rape victim. Court declared: "Once true
information is disclosed in public court documents, open to public inspection, the Press cannot be
sanctioned for publishing it". At the same time, court also observed, whether truthful publication of
very private matter unrelated to public affairs be constitutionally proscribed.
In the author's book, Law of the Press, it is noted that "rights are dependent upon the existence of the
State and maintenance of order, so that the rights may be ensured and enforced. Hence, no right to
freedom can be allowed to be exercised in such manner as would jeopardise the very existence of the
State, or the maintenance of public order, or undermine public morality or a fair and impartial
administration of justice, which are essential for a civilised existence. Again, such a pre-condition for
the enforcement of individual rights is that the corresponding rights of "other persons" should be
similarly safeguarded, the freedom of expression cannot be so exercised as to undermine the
reputation of any member of the public. When the danger to such countervailing public interests,
assumes a serious dimension, the State would be justified in curtailing or controlling even the freedom
of the press. Freedom of the Press cannot, therefore, mean an uncontrolled licence for or immunity to
every possible use of language.35
"Liberty of Press, as now exercised, is of modern origin and commentators seemed to be agreed in
the opinion that the term itself means only that liberty of publication without previous permission of the
government, which has been obtained by the abolition of censorship. In a strict sense, consists merely
in exemption from licensor. A similar view is expressed by DEHOLME. Liberty of the Press, he says,
consists in this: that neither courts of justice nor any other judges whatever, are authorised to take
notice of writings "inclined for the press", but are confined to those which are actually printed".
BLACKSTONE also adopts the same opinion and it has been followed by American Commentators of
standard authority as embodying correctly the idea incorporated in the Constitutional law of the
country by the provision of the American Bill of Rights". ... We understand liberty of speech and of the
press to imply not only liberty to publish, but complete immunity for the publication, so long as it is not
harmful in its character, when tested by such standards as the law affords. For these standards, we
must look to the common law rules which were in force when the constitutional guarantees were
established.36
In this age of "investigative journalism" there is little doubt that informants play a very important role in
providing the press the information which may involve matters of general public concern. In order for
the media, in general, to fulfil the role of "public watchdog" one of the areas vital to the freedom of
expression is the safeguarding of a sources identity from being revealed. Without this protection,
sources would be reluctant to come forward for fear of some form of reprisals. Indeed, this basic
protection from disclosure has now been recognised internationally by the introduction of legislation in
various centres. The court in Goodwin v. U.K .,37 respected this secrecy to the point of saying that
"limitation as the confidentiality of journalistic sources call for the most careful scrutiny by the Court"
and the margin of appreciation normally allowed by contracting States is "circumscribed by the interest
of democratic society in insuring and maintaining a free press".
Since the foundation of the demand for freedom of Press in a democracy as well as limitation under
various regulatory laws in public interest38 in the free publication of news and views in which the public
should be interested as a part of their political education and for vindication of their rights, it is
essential, at the outset, to ascertain the tests to determine whether the publication of a particular
matter would be called for in the "public interest".
(2) Without being exhaustive, it may be broadly asserted that the following would constitute matters of
public interest: (a) The exercise of governmental functions, statutory powers and duties. 39(b) Any
transaction which is carried on by a person or person for the public benefit as distinguished from
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private benefit e.g., charitable institution.40(c) Discharge of public function41e.g., transport, hospital,
health services or the official conduct of a public official. 42(d) Judicial proceedings, except those which
the court could be entitled to hear in camera because they relate to private affairs or the countervailing
public interests of decency, morality or safety of the State, matters which require secrecy e.g., trade
secrets.43(e) Detection or investigation of crimes, so long as it does not come to court and does not
constitute an interference with the ordinary course of justice. 44(f) Purity of food, drugs.45(g) Financial
affairs of companies in which public have interest.46
In India, Constitution has avoided speculation as to what grounds of restriction upon freedom of press
should be held to be in public interest by enumerating in clause (2) of Art. 19 and any expansion of
these grounds can be legitimate only by way of interpreting these constitutionally specific grounds. 47 A
restriction imposed on any ground outside clause (2) of Art. 19 shall be unconstitutional violation of
right by Art. 19(1)(a).48 There cannot be any restriction "in public interest" outside the grounds specified
in clause (2) of Art. 19.49 The wider test of public interest may be legitimate ground of restriction upon
the professional or business aspect of journalism and publication. (See Art. 19(b)) ; but it would not
uphold the restriction if it restricts the free flow of ideas without being related to the particular grounds
specified in clause (2) of Art. 19.50 In any democratic set up, dissemination of news and views for
popular consumption is a must and any attempt to deny or restrict the same has to be frowned unless
it falls within the mischief of Art. 19[(]2[)] of ConstitutionIndia . 51
But in Branzburg v. Hayes ,52 the court rejected the contention that the freedom of press protected by
the First Amendment contained by implication a reporter's privilege against disclosing confidential
news sources. It was held that the First Amendment does not invalidate every incidental burdening of
the press that may result from the enforcement of civil or criminal statutes of general applicability nor it
guarantees the press a constitutional right of special access to information not available to general
public.53 Newspapers also do not enjoy any constitutional immunity from search of their premises for
evidence of crime when the search is conducted under a warrant based on probable cause. 54 In that
case, a student newspaper at Stanford university had published photos of a violent encounter on
campus between student demonstrators and the police. The police obtained a warrant to search the
daily for negative, film and prints that might aid the police to identify the demonstrators who had
assaulted the police. After the search, which proved to be fruitless, the Daily sought damages for what
it contended was a search which violates First Amendment. The court rejected the contention,
reasoning that so long as a search complies with the First Amendment, the First Amendment does not
impose any requirement that law enforcement officials proceed by a subpoena instead of a search
warrant.
Subsequent to the decision in Zurcher's case, "The Privacy Protection Act " was enacted which limits
the power of federal and State officials to obtain evidence from the news media by search warrant
unless the media itself is believed to be the criminal or there is reasonable basis to believe that
evidence would be destroyed if sought by subpoena. 55
In cases where the promise as to confidentiality is breached and source is made public, the First
Amendment did not absolve the promisee in on action for damages for breach of promise. It was held
"Generally applicable laws do not offend the First Amendment simply because their enforcement
against the press has incidental effects on its ability to gather and report the news. There can be little
doubt that the Minnesota doctrine of promissory estoppel is a law of general applicability. It does not
target or single out press. The First Amendment does not forbid its application to the press. 56
Though the First Amendment of the United States does not itself lay down any qualifications upon the
liberty of the Press guaranteed therein, it has been reiterated by the Supreme Court, over and again,
that the guarantee does not confer upon the Press any privileges as a special medium of expression
or exempt it from--

29i)  The ordinary law of civil and criminal libel,57 against an individual58 or a
class, contempt of Court,60 obscenity,61 or the law in respect of violence against the
59

State.62
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28ii)  Regulatory laws applicable to the press as a business, e.g. antimonopoly63

or labour legislation,64 fixing maximum advertising rate;65 requiring production of records
concerning wages, etc., of employees.66
Thus, a Press is not entitled under the shield of the constitutional freedom, to
monopolise advertising by refusing to accept advertisement from anyone who advertises
in a competing radio station,67 or to exclude other members of the Press from
participating in the news collected by it.
19iii)  The duty to disclose its source of information, to which other citizens are
liable.68
15iv)  No constitutional right of special access to information not available to the
public generally or to scenes of crime or disaster or meeting of official bodies when the
general public is excluded.69
13v)  General non-discriminatory taxes,70 as distinguished from a tax imposed
specifically upon the business of publication71 including liability for search for evidence of
a crime.72
11vi)  Rules of evidence applicable to all citizens.73
6vii)  No right higher than that of the general public to acquire information about
prison conditions.74
Conversely, any attempt to subject the press to any special regulation,75 such as a special tax,76(apart
front other members of the public), shall be unconstitutional. In Arkansas Writers' Project v. Ragland ,77
U.S. Supreme Court invalidated Arkansas Statute that imposed a sales-tax on General Interest
Magazine but exempted religion, professional, traders and sports journals. It was held that selecting
taxes of the press either singling out the press as a whole or singling out the individual members of
the press posed a particular danger of governmental abuse.
Richmond Newspapers Inc. v. Virginia ,78 the Supreme Court recognised that "absent, a need to further
a state interest of the highest order" the press cannot be prosecuted for publishing truthful information
of public interest that is lawfully obtained. This does not mean that reporters have a right to obtain
news-worthy information, since the First Amendment gives the media no right to information beyond
that is possessed by the general public.79 In Richmond Newspaper's case,80 the court said: "The First
Amendment guarantees of free expression to share a common core purpose of assuring freedom of
communication on matters relating to the functioning of government. Plainly it would be difficult to
single out any aspect of government of higher concern and importance to the people than the manner
in which criminal trials are conducted. In guaranteeing freedom such as those of speech and press,
the First Amendment can be read as protecting the right of everyone to attend trials so as to give
meaning to those explicit guarantees. The First Amendment goes beyond protection of the Press and
the self-expression of individuals to prohibit government from limiting the stock ofinformation from
which members of the public may draw. Free speech carries with it some freedom to listen. What this
means in the context of trials is that First Amendment guarantees of speech and press, standing
alone, prohibit government from summarily closing court room doors which have long been open to
the public at the time when the Amendment was adopted. It is crucial whether we describe this right to
attend criminal trial to hear, see and communicate observations concerning them as a "right to
access" or "right to gather information", for, we have recognised that without some protection for
seeking out of the news, freedom of press could be eviscerated. The explicit, guaranteed right to
speak and to publish concerning what takes place at a trial would lose much meaning if access to
observe the trial could be foreclosed arbitrarily". In that case, press was prohibited from access to
court to listen to the criminal trial which was annulled by the Supreme Court.
In Simon & Schuster Inc. v. New York State Crime Victims Board ,81 the Court voided a New York
statute that confiscated any income earned by a person "accused or convicted of a crime" from books
or other publication concerning the crime and provided that such proceeds be held in trust to satisfy
civil judgments obtained against the accused or convicted criminal by his victim. A statute is
presumptively inconsistent with the First Amendment if it imposes a financial burden on speaker
because of the content of their speech. Court said that while New York interest in facilitating to crime
victims was a compelling interest, New York had "little if any interest in limiting such compensation to
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the proceedings of the wrongdoer's speech about the crime". Moreover, the law was sufficiently
narrowly tailored to achieve New York's compelling interest in victim's compensation. Not only did the
law apply to accused person, it also reached any book in which the author had admitted the crime,
thus including such authors as Thorean and Saint Augustine.
I. Freedom of the Press, thus, primarily means (as in England) that there is no licensing 82 or
censorship83 of literature of any kind in times of peace.84
The 'Press', in this context, has been interpreted to comprehend any form of publication (including
books,85 leaflets or pamphlets) which affords a vehicle of information and opinion, 86 and the freedom
has been held to comprise not merely the liberty of publications but also of circulation.87 And a
publication containing nothing of possible value to society is as much entitled to protection as the best
literature.88 In Webster's New World Dictionary, it is said: "(a) Clipped form of printing press; (b) a
printing or publishing establishment; (c) the art, business or practice of printing; (d) newspapers,
magazines, news services, etc. in general or the persons who write them, journalism or journalists; (e)
publicity, criticism, etc. in newspaper, magazines, etc.".
In Miami Herold Publication Co. v. Tornillo ,89 the U.S. Supreme Court considered the constitutionality
of a Florida Statute of "right to reply" which provided that if a candidate for political election is assailed
regarding his personal character or official record by any newspaper, the candidate has a right to
demand that the newspaper print should be given to him free of cost and reply by the candidate
should also be printed in the newspaper in a conspicuous place. The statute was declared invalid on
the ground that such an enforceable right of access by a candidate to a newspaper necessarily brings
about confrontation with the express provision of the First Amendment. The said Statute operates as a
command in the same sense as the Statute or regulation forbidding the newspaper to publish
specified matter free of cost. The Statute exacts a penalty on the basis of contents of a newspaper.
The first phase of penalty is exacted in terms of cost of printing and in taking up steps that could be
devoted to other material the newspaper may have preferred to print. Faced with such a penalty the
editors might well conclude that the safeguard is to avoid controversy. Thus, the right of access under
the Statute dampens the vigour and limits varieties of public debate. The said restriction amounts to
intrusion into the functions of the editor. The newspaper is more than a passive receptacle or conduit
of news comment and advertisement. The choice of materials to go into the newspaper constitutes the
exercise of editorial control and judgment. It directly interferes with the First Amendment of guarantee
of free press.
Unconstitutionality of prior restraintin any form
Censorship in any form, which subjects any literature to previous restraint or supervision before
publication is bad.90 Any provision which even indirectly amounts to censorship is also bad, e.g., a
statute by which power is given to certain Courts to suppress as a nuisance, after an enquiry, a
newspaper on the ground that it "habitually' indulges in the publication of scandalous or defamatory
matter".91 For the same reason, a law which requires a permit or licence, which may be granted or
withheld in the discretion of an official, before publication, would be unconstitutional. 92
Even though the American Constitution guarantees freedom of press in absolute terms, it has been
judicially acknowledged that in times of war when the security of the nation is in jeopardy and the
danger to the society from injurious publication is grave and imminent "previous restraint" including
censorship may be upheld as constitutionality permissible. 93 In that case,94 court took note of
BLACKSTONE'S statement: "The liberty of the Press is indeed essential to the nature of free state;
but this consists in laying "no previous restraint" upon publication and not in freedom from censure for
criminal matters when published. Every freeman has an undoubted right to lay what sentiments he
pleases before the public; to forbid this, is to destroy the freedom of the press, but if he publishes what
is improper, mischievous or illegal, he must take the consequences of his own temerity". Court also
observed that the fact that the liberty of the press may be abused by miscreant purveyors of scandal
does not make any the less necessary the immunity of the press from previous restraint in dealing
with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate
remedy, consistent with constitutional privilege.
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A prior restraint can be generally defined as any condition imposed by the government on the
publication of speech. Such a limitation can come in various forms including permit requirements,
licensing taxes, registration, pre-publication submission of materials, seizures and judicial injunction.
The distinguishing characteristic of a prior restraint is that the condition vests power in a non-judicial
official to make a final decision as to whether speech will be permitted at all or in what form. 95
In Reliance Petrochemicals Ltd. v. Indian Express ,96 the company undertook a mega issue of
debentures worth more than five hundred crores on the basis of consent given by the Controller of
Capital Issue. The same was questioned in an article by the newspaper in which the validity was
challenged. The Company secured from the Supreme Court an order of injunction prohibiting the
newspaper from publishing anything questioning the legality or validity of the issue of debentures - a
matter which at that time was subjudice. The debentures were over-subscribed, but not allotted, and
the newspaper brought an application to vacate the injunction. The company opposed the vacating
application on the ground that if the order is vacated, the subscribers might withdraw their application
and the danger still persists. It was contended by Press that pre-stoppage of newspaper publication
on matters of public importance was contrary to freedom of press. The Supreme Court adopted the
test laid down in Anitha Whitney v. California ,97 that there must be reasonable ground to believe that
the danger apprehended was "real and imminent". In the American case, it was held that the speech
was likely to result in some violence or in destruction of property is not enough to justify its
suppression. There must be probability of serious injury to the State.
While vacating the injunction, the court said: "We must see whether there is present and imminent
danger for the continuance of injunction. It is necessary to reiterate that the continuance of this
injunction would amount to interference with the freedom of press in the form of preventive injunction
and it must, therefore, be based on reasonable grounds for the sole purpose of keeping the
administration of justice unimpaired. We must remember that the people at large have a right to know
in order to be able to take part in a participatory development in the industrial life and democracy.
Right to know is a basic right which citizens of a free country aspire in the broaden horizon of the right
to live in this age on our land and under Art. 21 of the Constitution. That right has reached new
dimensions and urgency. The right puts greater responsibility upon those who take upon the
responsibility to inform". Court concluded that it is not necessary to continue the injunction.
Refusing to give advertisement to a particular newspaper on the ground that it raises communal frenzy
was held not valid and directed the Govt. to treat all newspapers equally since people are entitled to
know. Government should not use its power against a newspaper establishment so as to make it
subservient to it.98
The State or its officers have no authority in law to impose any prior restriction on publication of any
material in the press on the ground that it is defamatory of the State or its officers. The remedy, if any,
arises only after publication.99
Before the Constitution (44 th Amendment) 1978, the Government when proclaims emergency had
suspended Art. 19 and could impose pre-censorship on the press. Defence of India Act was also
amended to enable the suspension of fundamental right and the expression "prejudicial" act was given
a wider meaning. But, by the 44 th Amendment by which Art. 358 was also amended, by which Art. 19
could not be suspended during peacetime, nor it could be suspended due to internal disturbance or
armed rebellion. Even if there is emergency on the ground of war or external aggression, suspension
of Art. 19 is not automatic, but will depend upon a recital in a particular law to the effect that such law
relates to Proclamation of Emergency. In order to make a censorship during a future emergency, on
the ground of war or external aggression, Government will have to make a law authorising such
censorship and making a recital therein as aforesaid.
Supreme Court of America has systematically invalidated any system of licensing on the freedom of
the press as unconstitutional, e.g., the requirement of permission for publishing or distributing printed
matter.100 But the question of obtaining a municipal licence for carrying on business such as running a
printing press is valid since it has nothing to do with "restriction on the communication of ideas" as
such, but is intended only to regulate traffic, ensure the convenience and comfort of neighbours. 101
Punishment after fact of speech is not prior restraint. In Alexander v. US ,102Alexander was convicted of
 226

violating federal obscenity and racketeering laws, with the result that his entire business (consisting of
more than a dozen stores and theatres selling sexually explicit but non-obscene material) was
forfeited. Court upheld the validity of forfeiture rejecting the contention that the seizure of the non-
obscene books and film was a prior restraint on speech. The court reasoned that the forfeiture did not
forbid him "from engaging in any expressive act ivities in the future nor does it require him to obtain
prior approval for any expressive activities". The court also rejected the contention that the act of
authorities had a "chilling effect" on the dissemination of non-obscene publication. In that case, court
distinguished the decision in Near v. Minnesotta 103 on the ground that in Near's case, that order
perpetually enjoined the named party who had published a newspaper containing articles found to
violate the State law, from producing any future malicious, scandalous and defamatory publication
which in effect was a permanent injunction. But in Alexander's case, he is deprived of only his specific
assets, which did not affect his freedom of speech and expression.
"A newspaper is more than a passive receptacle or conduit for news, comment and advertising. The
choice of "material" to go into a newspaper, and the decisions made as to limitations on the "size" of
the paper, the 'content' and 'treatment' of public issues and public officials - whether fair or unfair -
constituting editorial control and judgment. ... We never thought that the First Amendment permitted
public officials to dictate to the press the contents of the 'news' columns or the slant of its editorials". 104
The Press cannot be dictated to exclude anything from its columns unless such matter offends against
public interest which the State, in exercise of its "police power" is competent to exclude, e.g., an attack
upon the reputation of the person.
If exclusion is not justified by such "police power", it can be effected by any indirect means, e.g., a tax
on the space used by a newspaper.1
In New York Times v. U.S .,2 it was observed that any system of prior restraints of expression "comes
to this court bearing a heavy presumption against its constitutional validity". In another case, it was
declared that "the main purpose of such constitutional provisions is to prevent all such previous
retraints... as had been practised by other governments...". 3 In all cases of prior restraint, Government
carries with it a heavy burden of showing justification for imposing such restraint. 4
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfil
its essential role in our democracy. The press was to serve the governed and not the governors. The
Government's power to censor the press was abolished so that the press would remain for ever free
to censure Government. The press was protected so that it could ban the secrets of government and
inform the people. Only a free and unrestrained press can effectively expose deception in
Government. And paramount among the responsibilities of a free press is the duty to prevent any part
of the Government from deceiving the people and sending them off to distant lands to die of foreign
fevers and foreign shot and shell.5
The observations of the U.S. Supreme Court are worthy of notice:

"While reckless assaults upon public men, and efforts to bring obloquy upon, those who are endeavouring
faithfully to discharge official duties, exert a baneful influence and deserve the severest condemnation in public
opinion opinion..... the administration of government has becomemore complex, the opportunities for
malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of
its protection by unfaithful officials and of the impairment of the fundamental security of life and property by
criminal alliances and official neglect, emphasises the primary need of a vigilant and courageous press,
especially in great cities. The fact that the liberty of the Press may be abused by miscreant purveyers of
scandal does not make any the less necessary the humanity of the press from previous restraint in dealing
with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy,
consistent with constitutional privilege...".6

In another case,7 the Supreme Court explained the principle upon which it acts against censorship,
thus--
"To act as good citizens, they must be informed. In order to enable them to be properly informed, their
information must be uncensored."8
 227

The publisher of offensive articles is liable to be punished, but the fact that some previous issues were
offensive does not authorise the State to suppress future publication of a periodical or subject it to
censorship.9
For the same reason, though the Postmaster-General has the power to exclude from the mails
'obscene literature', the Court has refused to concede him power to exclude a literature on the ground
that the publication does not, in his opinion, conduce to the 'public good'. To uphold such an order
would be "to grant the Postmaster-General a power of censorship" or "the power to supervise the
tastes of the reading public".10 The Court has also refused to uphold a requirement that a publisher
should disclose to a Congressional Committee the names and addresses of the purchasers of his
publications.11
It is now fairly well established that no Government agency can dictate to a newspaper in advance
what it can print and what it cannot.12 A newspaper is more than a passive receptacle or conduit for
news, comment and advertising. The choice of material to go into a newspaper and the decision made
as to limitation on the size of the paper and the content and treatment of public issues and public
officials - whether fair or unfair - constitutes the exercise of editorial control and judgment. We have
never thought that First Amendment permitted public officials to dictate to the press the contents of the
news columns or slant of the editorial.13 A press cannot be dictated to exclude from its column, unless
such mater offends against public interest which the State, in the exercise of its police powers, is
competent to exclude e.g., an attack upon the reputation of a person. 14 If exclusion is not justified by
such 'police power', it cannot be effected by indirect means i.e., a tax on the space used by a
newspaper.15
The above principle is an extension of doctrine of prior restraint which was leveled not only against
licencing or censorship, but also any action of government by means of which it might prevent such
free and general discussion of public matters as seems absolutely essential to prepare the people for
an intelligent exercise of their rights as citizens.16
Learned author D.D. BASU in his book Law of Press17 has extracted a statement made by COOLEY in
Constitutional Limitations18 which reds thus: "As COOLEY pointed out, mere absence of restraint was
not enough. Subsequent punishment might also be odious, unless it was subject to constitutional
limitation. Liberty of the Press might be rendered a mockery and a delusion if while every man was at
liberty to publish what he pleases, the public authorities might nevertheless punish him for harmless
publication". Punishment can, therefore, be constitutionally permissible only where the publication
offends against social interest which it is legitimate for the State to protect e.g., security of the State,
suppression of obscenity and the like and the restriction imposed is in conformity with the requirement
of due process".19
In the USA, the scope of freedom of press today has been formulated judicially in these words: "...the
guarantee of freedom of speech and press were not designed to prevent the censorship of the press
merely, but any act ion of the government by means of which it might prevent such free and general
discussion of public matters as seems absolutely essential".20
But while in the earlier cases, any prior restraint on the freedom of expression was held to be bad ex
facie,21 in later cases it has been stated that it is not the law that prior restraint can in no circumstances
be constitutionally permissible. What is meant is that--
"Any system of prior restraints of expression comes to this Court hearing a heavy presumption against
its constitutional validity".22
But allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute at all times and under all circumstances. There
are certain well defined and narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any constitutional problem. These include the lewd and
obscene, the profane, the libellous and the insulting or fighting words - those which by their very
utterance inflict injury or tend to incite an immediate breach of peace. It has been well observed that
such utterances are no essential part of the exposition of ideas and are of such slight social value as a
 228

step to truth that any benefit that may be derived from them is clearly outweighed by the social interest
in order and morality.23
Law may sometimes provide that a press can function only after it is registered under some law
constitutionality of which has been raised in some cases. It was observed that the requirements of
registration of a profession or a business as a condition for its exercise is not unconstitutional, so long
as it is made for administrative purposes or for the purpose of identifying a subversive organisation.
But it will be unconstitutional as a prior restraint on the freedom of expression, if it aims only at the
activity of speech or other mode of expression, regardless of any business act ivity or the like, or if it
affects any other fundamental right, e.g., the right not to disclose one's association.24
In other words, Government carries a heavy burden of showing justification for the imposition of such
a restraint.25 The burden may be discharged only by showing that publication of the material in
question would cause 'immediate and irreparable harm to the nation'. 26 The State has no power to do
this in the name of 'national security', without more, 27 except in times of war,28 or to prevent the
circulation of obscenity which is considered to be outside the protection of the freedom of expression.29
Even in the latter case it would be upheld only if there is provision for immediate judicial review. 30
The 'burden' has not been held to be discharged in any peace-time case so far.
It may be said that there can be no violation of a fundamental right by the Courts, and, therefore, when
a Court grants an injunction placing some restrains on the right to speech or press or grants damages
to a public authority for libel or defamation, no valid exception can be taken to it. The answer is that
the Court's order in such a case can be violative of fundamental right to freedom of speech and press,
because what the Court does, it does in exercise of the judicial power of the State. The violation is
therefore, by the State. In New York Times v. Sullivan ,31 the trial Judge and Supreme Court of
Alabama held the petitioner and New York Times guilty of libel. But the Supreme Court of America
held that "Alabama Courts have applied a state rule of law which petitioner's claim to impose invalid
restrictions on their constitutional freedom of speech and press. It matters not that law has been
applied in a civil action and it is common law only though supplemented by Statute. The test is not the
form in which the State power has been applied but whatever be the form, whether such power has in
fact been exercised".32
Scope of injunctions affecting freedom of the Press
The impact of this doctrine condemning prior restraints even upon the power of a Court to issue
injunctions affecting in freedom of the press is so striking, that it should be summarised in the
following propositions emerging from the decisions available so far:

30i)  No Court can issue an injunction to restrain the future publication of any
newspaper or other periodical, even though the previous issues of the same paper have
been found to be offensive, e.g. obscene.33
In USA, any form of previous restraint is condemned as "informal censorship". One of
such informal previous restraints is "blacklisting" under which an administrative authority
compiles a list of objectionable publication, e.g., on the ground of obscenity and then
warns the publishers that unless they "co-operate", legal action may be taken in respect
of these listed publications. It was held that such "listing" violates "due process" in as
much as it is not issued after any judicial determination of the objectionable nature of the
publication nor after any hearing by the administrative authority or the publishers on that
question".34
29ii)  But the Court can issue injunction prohibiting the sale or distribution of
already published books or other materials which have been found to be so offensive. 35
20iii)  Injunction may be issued against a publication which seeks to infringe the
copyright of another person.36
16iv)  Injunction may issue against publications affecting military secrets, but not
those affecting the external policy of the U.S.A., unless irreparable injury to the national
security is established in a particular case.37
 229

On the other hand,--

25a)  A total prohibition by legislation of injurious publication is to be distinguished

from censorship of a publication by administrative officials. Thus, the Supreme Court has
upheld the validity of a law which made it an offence to publish or exhibit any matter
which exposes the members of any race, colour, creed or religion to "contempt, derision,
or obloquy or which is productive of breach of the peace or riots". 38 It was observed in
this case.39 that such utterances stand outside the protection of the First Amendment
because their object is not the communication of ideas but to commit a palpable social
injury. Similar view has been taken as regards obscene publications. 40
26b)  On the same principle, a prohibition by an injunction issued by a Court of
law of injurious utterances, such as the obscene, the libellous and the insulting and
'fighting words'41 has not been regarded as a previous restraint in the, nature of
censorship.
18c)  In times of war, censorship of prejudicial publications may be justified in the
interests of the safety of the State.42

9I.  The protection afforded to the Press by the First Amendment, however, is
"not limited to the Blackstonian idea that freedom of the press means only freedom from
restraint prior to publication".43 It also affords immunity from subsequent punishment in
all situations which do not come within the permissible limitations of the right. 44 The
reason is that the First Amendment specifically enjoins Congress to make "no law
abridging the freedom of the press".
In Bridges v. California ,45 the Supreme Court observed--
"The First Amendment cannot reasonably be taken as approving English practices
prevalent at the time of its adoption, but on the contrary the unqualified prohibitions laid
down by the framers thereof were intended to give to liberty of the press, as to the other
liberties, the boradest scope that could be countenanced in an orderly society". 46
Thus, as will be seen shortly, it would hit a discriminatory tax against the Press, which
would be valid in England, if Parliament thought fit to impose it. 47
Freedom of the press in the United States, thus, implies--
11. Freedom from censorship, curtailing circulation or dissemination of news, in
any form.48 It extends protection not merely against a direct restriction of what the
Press shall print, but a protection of every essential step in the whole process of
collecting, printing and distributing the news.49
11. Freedom from punishment subsequent to publication except on the
constitutionally permissible grounds.50
7. Freedom from restraint in respect of the employment in the editorial force or
the agency through which a Press pursues its policy. 51
5. Freedom from a discriminatory tax deliberately calculated to limit the
circulation of information.52
2. In general freedom from any governmental act ion which might prevent such
free and general discussion of public matters as seems absolutely essential. 53

7II.  Conversely, in adjudging the constitutionality of restrictions imposed on the

freedom of the Press, the American Supreme Court has attempted at a reconciliation
between two principal considerations in this sphere--
12. That the Press, as a medium of expression, has to discharge a constitutional
function, namely, to serve as "a powerful antidote to any abuses of power by
governmental officials and as a constitutionally chosen means for keeping officials
elected by the people responsible to all the people whom they were selected to
serve".54 No less important is the function of the press to expose abuses of power
 230

by and corruption by public officials and in keeping them responsible to the

people when they are expected to serve.55 In Grosjean v. American Press Co .,56
the court said: "The newspaper, magazines and other journals of the country have
shed and continue to shed more light on the public and business affairs of the
nation than any other instrumentality of publicity". In the words of MADISON, "A
popular Government without popular information or the means of acquiring it, is
but a prologue to a Farce or a Tragedy or perhaps both...and a people who mean
to be their own governors, must arm themselves with the power which knowledge
gives".57
12. That the interest of the public in the free collection and dissemination of
news has to be reconciled with the competing interest of the public in the
detection and prosecution of crimes; and that, as an organ of the public, the Press
cannot claim any right or privilege which is not available to the public
themselves.58

When a conflict arises between the two interests, they will have to be reconciled in the light of the
circumstances of each case.59 Thus--

26a)  A fundamental right of the public and the Press to attend a criminal trial has
been inferred from the 1st and the 14th Amendments, 60 which cannot be curtailed in the
absence of an overriding and compelling public interest. 61
27b)  Circumstances, such as the following, have to be weighed in each case, to
override the right of the public to attend an open criminal trial,--the minor victim's age,
maturity and understanding; the nature of the crime; the desires of the victim; the
interests of the parents and relatives of the victim.
Where a provision for exclusion of the public from the trial of any sexual offence against a minor is not
'narrowly tailored' to such aforesaid overriding considerations, it will be struck down. 62
West Germany
(C) West Germany--Art. 5(1) of the West German Constitution says--
"The liberty of the press...is guaranteed. There is no censorship".
India
(D) India.--Our Constitution omits to mention freedom of the press specifically in the guarantee of
fundamental rights. It also includes the liberty of publication and circulation. 63 It also includes the right
to answer the criticism levelled against such views.64 The Supreme Court has held that there is no
need to mention freedom of press separately because it is already included in the guarantee of
freedom of expression65 which comprehends not only the liberty to propagate one's own views, but
also the right to print matters which have either been borrowed from someone else or are printed
under direction of that person.66
The newspapers serves a medium of exercise of freedom of speech, the right of its share-holders to
have a free press is a fundamental right.67 At the same time, the conferment of freedom of speech and
expression as this press pre-supposes their responsibilities and limitations and this obligation is
expected more while reporting court proceedings.68
Echoing the words of the Privy Council, in Arnold's case,69 Dr. Ambedkar70 explained the position thus:
"The Press has no special rights which are not to be given or which are not to be exercised by a
citizen in his individual capacity. The, editor of a press and the manager are all citizens and, therefore,
when they choose to write in newspapers, they are merely exercising their right of expression and...:,
therefore, no special mention is necessary of the freedom of the press at all". 71 Since freedom of press
flows from freedom of expression which is guaranteed to all citizens by Art. 19(1)(a), the Press stands
on no higher footing than any other citizen and cannot claim any privilege unless conferred specifically
 231

by law as such, as distinct from those of any other citizen. 72 Conversely, the press cannot be subjected
to any special restriction which could not be imposed on any private citizen. 73
In short, freedom of the press, in India, is included in the guarantee of freedom of expression in Art.
19(l)(a).74 Any expression of opinion would, therefore, be not immune from the liability for exceeding
the limits, either under the law of defamation or contempt of court or other constitutional limitations. 75 It
was held that by freedom of the press is meant the right of all citizens to speak, publish and express
their views. The freedom of the press embodies the right of the people to read. The freedom of the
press is not antithetical to the right of the people to speak and express. 76
Freedom of press is a part of freedom of speech and expression and as such a fundamental right and
it is regarded as "the matter of all other liberties in a democratic society". 77
Since freedom of Press flows from freedom of expression which is guaranteed to all citizens by Art.
19(1)(a), the press stands on no higher footing than any other citi- zen and cannot claim any privileges
(unless specifically conferred by law) as such, as distinct from those of any other citizen. 78 The Press
does not have an enfiltered right to interview an under-trial prisoner in jail. Hence, an order granting
permission to the press to interview as under-trial cannot be passed mechanically and it can be
denied if there are justifiable reason.79 Conversely the press cannot be subjected to any special
limitation or restriction which could not be imposed on any private citizen. 80
Whether specific guarantee necessary
There are people in India who are insisting that there should be a specific mention of 'freedom of the
press' in Art. 19(l)(a), as in the First Amendment of the American Constitution. Juristically, this is
unnecessary because--

27a)  In the First Amendment the principal expression is 'freedom of speech' and
there was no mention of the wider concept of 'freedom of expression' and, hence, the
need for mentioning the 'press' in addition,81 arose.
But in Art. 19(l)(a) of the Indian Constitution, the guarantee is of freedom of speech as
well as of 'expression' and, certainly, the Press is one of the means of expression.
28b)  Even in the U.S.A., as has been shown earlier. (see ante), the Supreme
Court has held that the freedom of the Press is not basically different from those of an
individual's freedom of expression by other means.82 Therefore, so long as our Supreme
Court holds that freedom of the press is included in the freedom guaranteed by Art. 19(l)
(a), there is no reason for any misapprehension.
19c)  In the U.S.A., the power of imposing limitations upon the freedom of the
Press is left to the vague doctrine of 'Police Power' as interpreted by the Court; but in
India, the State would not be allowed to impose restrictions on any ground other than
those which are specified in Cl. (2) of Art. 19. 83
Notwithstanding such absolute guarantee as per First Amendment, in American Constitution, the
Supreme Court has held that the guarantees are not absolute and that is subject to exception similar
to those mentioned in Art. 19(2) of the Constitution. It is also held by American Supreme Court that
press has no special privilege or protection which is not enjoyed by any other citizen; in other words,
the limitation to the Freedom of Press, so introduced by judiciary on grounds of competing public
interest are applicable to the press as to any other individual. It has been held in Grosjean v. American
Press Co .,84 that the Press has no greater right to access to govt. facilities than the general public. In
short, the Press has no greater constitutional right to governmental information where a private
individual would have no such right. The press is not immune from search and seizure of incriminating
documents in its possession where a private individual has no such immunity.
If the foregoing judicial gloss in the American Constitution is borne in mind, it would appear that the
Indian Judiciary is, in any case, bound to infuse some exception on such grounds as security of State,
public order and the like which are needed so that the State itself might survive. If that be so, no
advantage would be reaped by supplanting Art. 19(1)(a) by an absolute declaration of American
 232

model. On the other hand, the specific enumeration of the exception in Art. 19(2) has definite
advantages over the American Constitution set up as explained above.
The exception enumerated in Art. 19(2) cannot be enlarged without resorting to the procedure for
constitutional amendment.
It follows that Press cannot be subjected to any special restriction to which an individual, in his
exercise of freedom of expression could not be subjected under the Constitution. Another advantage
of this scheme of specific enumeration of the grounds of restriction is that the Press as well as general
public may be sure of the limitation to which the freedom is subject. Even the courts have no power to
enlarge them. On the other hand, the power of the State to impose such limitation is subject to what is
known as "Judicial Review". The courts are endowed by the Constitution (Art. 13) to strike down any
act of the State - legislative or executive - which unreasonably encroaches upon the freedom or seeks
to impose restrictions which are not proximately or reasonably connected with the grounds of
restriction specified in Art. 19.
This does not mean that it is not possible under the Indian Constitution to offer to the Press any
special privilege having regard to the contribution it makes to the success of democracy in the country.
That would be possible by legislation, by relaxing a restrictive law in its application to the Press e.g.,
the Contempt of Courts Act . The legislature may also consider this point while codifying the law
relating to privilege of Parliament or a State legislature. In this context, it should be noted that
privileges have been conferred upon the Press by the Constitution itself in the matter of reporting
proceedings in the Union and State Legislatures.
It follows that there is no case for making a declaration of absolute freedom of the Press in the
Constitution, instead of relying on in Art. 19(1)(a). 85
It follows from the above that--
Ambit of the freedom
(I) This freedom cannot be claimed by a newspaper or other publication run by a non-citizen. 86
Since fundamental right is guaranteed and is available only to natural persons, i.e., citizens of India, a
company, though incorporated in India cannot complain of any invasion of freedom of expression or of
the press.87 But a company, though not a citizen and not entitled to claim any fundamental right
guaranteed under Art. 19, the rights of its shareholders are necessarily affected where the rights of the
company are affected. Hence the Indian shareholders of the Company may challenge the
constitutionality of any law affecting freedom of press. 88 The decision in Tata Engineering Co.'s case89
was followed in Dharam Dutt v. Union of India ,90 wherein it was held that once a company or
corporation is formed, the business of the company or corporation is the business of the company or
of the corporation and is not the business of the citizen who formed the company. It was held that the
rights of the incorporated body cannot be adjudged on the assumption that "they are the rights
attributable to the business of the individual citizen". The same principle was applied to societies
registered under Societies Registration Act ). In Sakal Papers v. Union of India ,91 it was further
declared that even a reader of a newspaper is entitled to challenge the constitutionality of a law which
affects freedom of press, i.e., a law which reduces or was likely to reduce the circulation of newspaper
by curtailing its size or space available for advertisement or by fixing a minimum price for the number
of pages to be printed.
Being a right flowing from the freedom of expression, no special privilege is attached to the freedom of
press as such, as distinct from the freedom of a citizen unless conferred by the Constitution itself. By
the Constitution (Forty-fourth Amendment) Act (with effect from 20-06-1979), Art. 361A was inserted
which gave special protection in the matter of faithful reports of legislation proceedings, and the
restrictions must be reasonable as provided under Art. 19(2).
The press is given guarantee of expression. But it is also a business. Hence reasonable restrictions
upon freedom of press may be imposed both under clause (2) and (6) 92. The fundamental freedoms
enumerated under Art. 19 are not necessarily and in all circumstances "mutually supportive". Under
the Newspaper (Price and Page) Act 1956, the Central Government sought to regulate the number of
 233

pages according to the price charged, prescribed the number of supplements to be published and
regulate the size and area of advertisements, etc. The Government sought to support the Act, on the
ground that it amounts only as a reasonable restriction under Art. 19(6). Court agreed that
newspapers have two aspects - dissemination of news and views and the other commercial. It was
held that these two aspects are different, i.e., the former falls under Art. 19(1)(a)(2) and the other
under Art. 19(1)(g) read with 19(6). It was further observed that state cannot seek to place restriction
and business by directly and immediately curtailing any other freedom. The right of freedom of speech
cannot be taken away with the object of placing restrictions on the business act ivities of the citizen. 93
Referring to press as a business and justifying the impugned restriction under Art. 19(6) as a proper
restriction on the right to carry on business or publishing a newspaper would be wholly irrelevant for
considering whether the impugned Act infringes or does not infringe the freedom guaranteed by Art.
19(1)(a). This means that freedom of speech cannot be restricted for the purpose of regulating a
commercial aspect of the act ivities of the newspaper. The court was considering the validity of The
Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price & Page) Order, 1960 in Sakal
Papers v. UOI .94 The Court said that as the purpose of the law in question was to effect directly the
right of circulation of newspaper which would necessarily undermine their power to influence public
opinion, it cannot but be regarded as a dangerous weapon which is capable of being used against
democracy itself. Court emphasised: "The freedom of speech and expression of opinion is of
paramount importance under a democratic Constitution which envisages changes in the composition
of legislatures and Govt. and must be preserved". The Court said that the freedom of a newspaper to
publish any number of pages or to circulate it to any number of persons is each an integral part of the
freedom of speech and expression. A restriction placed upon either of them would be a direct
infringement of the right to freedom of speech and expression. Being a restriction on Art. 19(1)(a), it
was not related to any of the purposes mentioned in Art. 19(2) and so it was invalid.
Some restrictions on one's rights may be necessary to protect another's right in a given situation. In
such circumstances, the rights must be harmoniously construed so that they are properly promoted
with the minimum of such implied and necessary restrictions. In that case (Devendrappa's case), the
Court justified the service rules. Court said that rules cannot be invalidated even if it is not justified
under Art. 19(2). On the question of inter-relation of several freedoms guaranteed by Art. 19, it was
observed that they are not necessarily and in all circumstances mutually supportive, although taken
together they weave a fabric of a free and equal democratic society. Peoples' exercise of rights may
have, implicit in them, certain restrictions. The right must be harmoniously construed so that they are
properly promoted with the minimum of such implied and necessary restriction. Joining Government
service has, implicit in it, if not explicitly laid down, observance of certain code of conduct necessary
for the proper discharge of functions as a Government servant. This code cannot be flouted in the
name of other freedoms. Of course, courts have to be vigilant to ensure that the code is not so widely
framed as to unreasonably restrict fundamental freedom. But a reasonable code designed to promote
discipline and efficiency can be enforced by Government organisation in the sense that those who
flout it can be subjected to disciplinary act ion. A Government servant who makes a direct public attack
on the head of the department cannot claim that he is protected by the guarantee of freedom of
expression and press (by issuing pamphlets), when his conduct is clearly detrimental to the proper
functioning of the organisation or its internal discipline. 95

1II)  The freedom of Press, under our Constitution, is not higher than the freedom
of an ordinary citizen.96 It is subject to the same limitations as are imposed by Art. 19(2),
and to those limitation only.97
The Press is not, accordingly, immune from--

28a)  the ordinary forms of taxation;98

29b)  the application of the general laws relating to industrial relations; 99
But it would constitute an unreasonable restriction upon the fundamental right of
business of the press-owner, if the benefit given to the workman has no relation to the
 234

object of the legislation e.g., where retirement gratuity is payable to an employee who
has resigned.1
20c)  the regulation of the conditions of service of the employees; 2
9d)  the laws relating to defamation or contempt of court; 3
5e)  the law of trespass, nuisance etc., as regards entry by newspaper men into
private property;4
4f)  liability for unfair reporting;5
3g)  laws or regulations excluding all members of the public from certain places 6
or certain kinds of information.7
1h)  There are various provisions of criminal law in India which are applicable to
all persons and are aimed at maintaining the legitimate interest of the State which are
specified in Art. 19(2). Thus, (1) anticipatory measures authorised by s. 144 CrPC
which may be taken against all persons generally, cannot be urged as unconstitutional
merely because they may be taken against the Press;8(2) Sections 11 of the Customs
Act , similarly is of general application to prohibit the import or export of any goods which
might undermine the security of India; maintenance of public order or standards of
morality or decency of the constitutionality cannot be challenged merely because it is
applicable to printed material as well unless it is burdensome so as to affect its
circulation.9 The State is entitled to punish obscene publication under s. 292 IPC . 10
Publication would include photograph and pictures and even advertisements. 11
31i)  regulating the commercial act ivities of the Press, without interfering with its
freedom of expression.12
The freedom to circulate is both qualitative and quantitative. 13 In other words, it extends not merely to
the matter which the Press is entitled to circulate but also to the volume of circulation 14 subject, of
course, to constitutional and valid statutory limitations.
Restrictions on Freedom of the Press
Any restriction that is directly imposed upon the right to publish,15 to disseminate information16 or to
circulated17 constitutes a restriction upon the freedom of Press. The right to publish includes the right
to publish not only its own views but also those of its correspondents. 18 The right to circulate refers to
the matter to be circulated as well as the volume of circulation. 19 To require a newspaper to reduce its
space for advertisements would directly affect its circulation since it would be bound to raise its price. 20
In order to determine whether a restriction directly affects the freedom of the Press, the substance of
the legislation, its object and its direct impact has to be ascertained. 21 Thus, it has been held22 that--

29a)  Notices of re-entry upon premises leased out perpetually to a newspaper

establishment and of threatened demolition of the newspaper establishment, issued
mala fide and meant to silence the voice of the newspaper constitute a "direct and
immediate" threat to freedom of the press and thus violate Art. 19(l)(a) read with Art. 14
of the Constitution.23
30b)  While the prohibition of harmful advertisements for the purpose of
preventing selfmedication24 cannot be said to be an infringement of the freedom of the
Press (para. 90),25 a heavy taxation of newsprint, which causes a newspaper to curtail its
space for advertisements or to raise its prices, as its direct effect, must be held to
constitute an unreasonable restriction upon the freedom guaranteed by Art. 19(l)(a)
[paras. 90, 101].26
Executive order issued by State Government under Art. 162 of the Constitution directing deduction of
5% from the bills payable to newspapers having circulation of more than 25,000 copies for publication
of government advertisement for implementation of Pension and Social Security Scheme for full-time
journalists, was held ultra vires. It was held that advertisements in newspaper play an important role in
the matter of revenue to the newspaper and have a direct nexus with its circulation by making
newspaper available to the readers at a price at which they can afford and they have no other option
but to collect more funds by publishing commercial and other advertisements and as such the State
 235

cannot in view of equality doctrine under Art. 14 of the Constitution resort to the theory of "take it or
leave it". Every executive action which operates to the prejudice of any person must have the sanction
of law and executive cannot interfere with the rights and liabilities of any person unless the legality
thereof is supported by law and supportable in any court of law. 27
The freedom of speech and expression under Art. 19(1)(a) is subject to reasonable restriction of public
decency and morality, under Art. 19(2). Thus the publication of matter which has a tendency of
depriving or corrupting the public moral may be prevented or restricted. A publication would be
obscene if it tends to produce lascivious thoughts and arouse lustful desire in the minds of the
readers. Section 292 of the Indian Penal Code deals with obscenity and makes it punishable. When
challenged on the ground that it is an unreasonable restriction on the freedom of press, it was held
that the restriction being in the interest of public decency and morality, is a reasonable restriction and
hence valid.28 It was held that the fundamental right to speech and expression ends when such
expression incites or encourages the commission of violent crimes. In Ramji Lal Modi v. State of U.P
.,29 the validity of s. 295A of the Indian Penal Code was challenged as unconstitutional. The section
prescribes penalty for a person who with deliberate and malicious intention, by words either spoken or
written, or by visible representations, insults or attempts to insult the religious belief of any class. Court
said that the said provision penalises not every act of or attempt to, insult the religious belief of a class
of citizens, but only those aggravated forms of insult to religion which are perpetuated with the
deliberate and malicious intention of outraging the religious feelings of a class of citizens. The
calculated tendency of such an aggravated form of insult is clearly to disturb the public order and
hence the provision is valid.
Clause (1) of Art. 19 does not prefer one freedom to another, and hence freedom of press also cannot
claim any preferential right. Hence the State cannot "directly" restrict one freedom by placing an
otherwise permissible restriction of another freedom.30 It was held in that case that freedom of
expression cannot be directly curtailed by imposing a restriction "in the interests of general public"
which could be imposed only under Art. 19(6).
The Court has also evolved the doctrine of "direct impact" to consider the validity of such restriction.
Hence, in regulating the "business" as part of the press, the State cannot impose such a restriction as
would "directly" affect the volume of circulation, or limit the number of subscribers or reduce the size of
the newspaper.31 But if a law is directly aimed at regulating the industry of the Press, but as a result of
the operation of such a law, the freedom of expression of a newspaper is "indirectly or remotely"
affected, the said law cannot be struck down as invalid. 32 In Express Newspapercase, the question
was how far the provision of Working Journalists and other Newspaper employees (Conditions of
Service) and Miscellaneous Provisions Act 1955 has affected the freedom of press. While holding that
the Act is a valid piece of legislation, it was further held that even though to a certain extent the press
would be affected by the legislation, since the legislation is not directed against the Press "as such"
but was a beneficial legislation intended to regulate the condition of service of working journalists, the
consequences on its implementation, "cannot be said as direct and inevitable result" of it. It was
observed that a possible eventuality of this type would not necessarily be the consequence which
could be "in the contemplation of the legislature" while enacting a measure of this type for the benefit
of the workmen concerned".
In Bennett Coleman's case,33it was urged by the Government in support of its newsprint policy that its
subject matter was rationing the imported commodity and not freedom of speech and to test the
reasonability, the regulatory provision should be its subject matter, its pith and substance and not its
effect or result. The Court rejected the approach and held that the test is whether the effect of the
impugned act ion is to take away or abridge the fundamental right which is the direct or inevitable
consequence of the impugned action. It was observed: "A legislation or government act ion may have
a direct effect on a fundamental right, although its subject matter may be different. The object of the
law or executive action is irrelevant when it infringes a fundamental right, although its subject matter
may be different. Even a law directly dealing with a purpose mentioned in Art. 19(2) would be invalid if
it is not reasonable". It was further observed: "No law or act ion would state in words that freedom of
speech and expression are abridged or taken away. That is why the Courts have to protect and guard
fundamental right by considering the scope and provision of the Act and its effect on the fundamental
 236

rights. The Court said: "The effect and consequence of the impugned policy upon the newspaper is
directly controlling the growth and circulation of newspaper. The direct effect is the restriction upon
circulation of newspapers. The direct effect is upon the growth of newspaper through pages. The
direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that
they are exposed to financial loss. The direct effect is that freedom of speech and expression is
infringed. Court observed that freedom of press embodies the right of the people to speak and
express. The freedom of speech and expression is not only in the volume of circulation, but also in the
volume of news and views. The press has the right of free publication and their circulation without any
obvious restraint on publication. Court said that freedom of press is both qualitative and quantitative
and freedom lies both in circulation and in content. The "effect" test has been applied in Maneka
Gandhi v. Union of India .34 In R.C. Cooper v. Union of India, i.e., Bank Nationalisation case,35it was
reiterated that it is direct operation of the Act upon the rights which forms the real test.

5V.  Since freedom of the Press is included in the freedom of expression

guaranteed by Art. 19(l)(a), limitations can be imposed upon it only under Cl. (2) and not
on any of the grounds specified in Cls. (3) to (6), e.g. 'interests of the general public'.36
A Single Judge of the Bombay High Court37 has held that freedom of the press, being
a basic feature38 of our Constitution, cannot be curtailed by the provisions of Article 31B,
31C;39 and that ss. 21-22 of the Monopolies and Restrictive Trade Practices Act , 1969, 40
cannot be applied to the newspaper industry, as it imposes prior restraint on the
expansion of a newspaper undertaking.41
3.  The validity of any such restriction upon the freedom of Press will have to be
tested by the touchstone of reasonableness. Thus, it would not be legitimate for the
State--
13. to subject the Press to laws which take away or abridge the freedom of
expression or which would curtail circulation and thereby narrow the scope of
dissemination of information or fetter its freedom to choose its means of
exercising the right or would undermine its independence by driving it to seek
Government aid;42
13. to single out the Press for laying upon it excessive and prohibitive burdens
which would restrict the circulation, impose a penalty on its right to choose the
instruments for its exercise or to seek an alternative media; 43
8. to impose a specific tax upon the Press deliberately calculated to limit the
circulation of information;44
6. to require the newspapers either to reduce the number of their pages or to
raise their prices, according to a schedule prescribed by the State, 45 on some
ground extraneous to Cl. (2), e.g. the elimination of unfair competition amongst
newspapers.46

1I.  The right to acquire information includes the right of access to the sources of
information.47 Hence, a journalist cannot be denied an opportunity to interview a prisoner,
provided--(a) the prisoner is willing to be interviewed, and (b) the regulations contained
in the Jail Manual are complied with.48
What constitutes a restriction upon Freedom of the Press49
Since the guarantee under Art. 19(1)(a) is confined to "citizen" only, a non-citizen, running a press is
not entitled to the benefit of liberty of press.50 In this respect, the position of the Press run by a
foreigner or of a foreign journalist in India may be under greater control than before Independence
when there was no constitutional protection to rely upon in favour of either a citizen or non-citizen. 51 It
would follow from this that not only an alien, but also a company, even though incorporated in India,
would not be entitled to complain of any invasion of freedom of expression or of the press, because it
is held that "citizenship" under our Constitution is confined only to natural persons. 52
It would not be constitutionally permissible to impose any restriction specially leveled against the
Press as an organ of freedom of expression, which could not be imposed on other citizens and when
 237

Press is subjected to any restriction imposed by law, the constitutionality of such restriction imposed
by law shall have to be judged by the same test of "reasonableness" under Art. 19(2), which is
applicable to citizens.53

5.  Any restriction that is directly imposed upon the right to publish, 54 to
disseminate information or to circulate55 constitutes a restriction upon the freedom of the
Press.
6.  The right to publish includes the right to publish not only its own, views but
also those of its correspondents.56 It includes a right to receive information from any
source (see Art. 19 of Universal Declaration of Human Rights) and without interference
by public authority. (See article 10(1) of European Convention of Human Rights)
5.  The right to circulate refers to the matter to be circulated as well as the
volume of circulation.57
2.  To require newspaper to reduce its space for advertisements would directly
affect the circulation since it would be bound to raise its price. 58
A notice of re-entry upon the leased out perpetually to a newspaper establishment and of
threatened demolition of newspaper establishment issued mala fide and meant to
silence dissident voice against the Government amounts unreasonable interference in
the freedom of Press. The impugned act ion which constitutes a "direct and immediate
threat" to freedoms of press violates Art. 19(1) (a) read with Art. 14 of the Constitution. 59
Likewise, a heavy taxation of newsprint which "causes" a newspaper to curtail its space
for advertisements or to raise its prices, as its direct effect constitutes an unreasonable
restriction.60
2.  On the other hand, it would be open to the State to restrict the commercial
activities of a newspaper, in the public interest, in so far as that can be done without
restricting the freedom of expression or circulation of a newspaper. 61 Thus, the right to
publish an advertisement is not a part of the freedom of expression, but, if a restraint on
advertisement curtails circulation, it would offend Art. 19(1)(a). 62
2.  Anything which indirectly affects the independence of the editorial authority
of a newspaper would also constitute an interference with freedom of press. 63
2.  Freedom of press implies that the choice of what is to be printed in the
editorial or news columns of a newspaper should rest with the judgment of the editor. 64
The reason is patent, namely, that freedom of expression cannot be said to exist when
the Govt. dictates what views or information should be published through the media of
expression.65
In State of Bihar v. Press Council of India ,66 the Court held that independence of a
newspaper is jeopardised where the Government throws out an allurement of serving on
government bodies of high rank and status to editors who have been freely criticising the
policies and act s of government and it is the duty of Press Council of India to inquire
into such complaints against the Government in order to maintain independence of a
newspaper.
2.  To impose a wage structure for employees which is beyond the financial
capacity of the agency.67
2.  To cancel the declaration of a newspaper under the Press and Registration
of Books Act , 1867, without giving an opportunity to show cause against proposed
action.68
10.  To levy such heavy customs duty on the import of newsprint as would result
in rise in price of a newspaper and thus affect its circulation. 69
Unreasonable restrictions upon Freedom of the Press

6.  It would not be legitimate for the State--

14. to subject the Press to laws which take away or abridge the freedom of
expression or which would curtail circulation and thereby narrow the scope of
 238

dissemination of information or fetter its freedom to choose its means of

exercising the right or would undermine its independence by driving it to seek
Government aid;70
14. to single out the Press for laying upon it excessive and prohibitive burdens
which would restrict the circulation,71 impose a penalty on its right to choose the
instruments for its exercise or to seek an alternative media; 72
9. to impose a specific tax upon the Press deliberately calculated to limit the
circulation of information;73
7. to require the newspapers either to reduce the number of their pages or to
raise their prices, according to a schedule prescribed by the State, on some
ground extraneous to Cl. (2), e.g. the elimination of unfair competition amongst
newspapers, or to fix a maximum page level.74

7.  On the other hand, it would be open to the State to restrict the commercial
activities of a newspaper, in the public interest, in so far as that can be done without
restricting the freedom of expression or circulation of a newspaper. 75 Thus, the right to
publish an advertisement is not a part of the freedom of expression, but, if a restraint on
advertisement curtails circulation, it would offend Art. 19(l)(a). 76
An illustration of a direct impact on the freedom of express and of the press by the purported exercise
by the State of some other power may be given from a case from Malta which went to the Privy
Council.77"A certain newspaper was condemned by the ecclesiastical authorities. The Minister for
Health issued a circular which prohibited in regard to employment of hospitals and branches of Dept.
of Health the entry of newspapers which have been condemned by ecclesiastical authorities". It was
held that the prohibition went beyond reasonable orders regulating the conduct of employees during
working hours and constituted a direct interference with the enjoyment of freedom of expression viz.,
to impart information and ideas without interference. It was a discriminatory prohibition against
particular newspapers which could neither be justified on the ground of public safety, public order or
public morality.
Censorship
Censorship of the Press is not specifically prohibited by any provision of the Indian Constitution. Like
other restrictions, therefore, its constitutionality has to be judged by the test of 'reasonableness' within
the meaning of Cl. (2).78
In England, prior restraint is regarded as an especially serious violation of freedom of expression
because it removes from the public sphere the possibility of assessing the matter, whereas
punishment may be regarded as a legitimate compromise between competing goods. Prior restraint
should be resorted to only as a last resort. The ECHR subjects prior restraints to a high level scrutiny,
particularly in the cases of news "which is a perishable commodity". 79 In Open Door and Dublic Well
Woman v. Ireland ,80 five Judges thought that prior restraint should never be tolerated. In VGT v.
Switzerland ,81 a ban on political advertising was condemned.
Political expression is widely regarded as especially important, so that attacks on the government are
subject to restrictions only in extreme cases. Therefore, media enjoys a high level protection because
it is a watchdog over government on behalf of the public. 82 It is important for democratic participation
and for liberal pluralism that there should be a wide variety of media outlets. 83 But where Parliament
has established a special regulatory mechanism, the courts are reluctant to impose their own
judgment, short of reviewing unreasonable decision.84 In the above cases, it was emphasised that prior
restraint in the context of public demonstration should be subject to careful scrutiny.
In the USA, any form of previous restraint is condemned as "informal censorship". One of such
informal previous restraints is "blacklisting" under which an administrative authority compiles a list of
objectionable publication e.g., on the ground of obscenity and then warns the publishers that unless
they co-operate, legal action may be taken in respect of those listed publications. The Supreme Court
has held that such listing violates 'Due Process' in as much as it is not issued after any judicial
 239

determination of objectionable nature of the publication nor after any hearing by the administrative
authority of the publishers on the question.85
In American Communication Association v. Donds ,86 it was observed: "Thought control is a copyright
of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the
citizen from falling into error ; it is the function of the citizen to keep the Government from falling into
error. We could justify any censorship only when the censors are better shielded against error than the
censored". Following the above decision, the Supreme Court held: "Human history is witness to the
fact that all evolution and all progress is because power of thought and that every attempt at thought
control is doomed to failure. An idea can never be killed. Suppression can never be a successful
permanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our constitution
permits a free trade, if we can use the expression - the only limitation being a law in terms of Clause
(2) of Art. 19 of the Constitution. Thought control is alien to our Constitutional scheme. 87 In that case,
certain books containing Marxist literature was seized and confiscated which was held to be an
"unreasonable restriction" and declared invalid.
While in a country like England, the freedom of Press like the freedom of expression of any citizen, is
to publish anything which is "not prohibited" by law, in India, it is constitutionally guaranteed by Art.
19(1)(a) subject only to such restrictions as may be authorised by Art. 19(2). 88 In S. Rangarajan's
case,89it was held that though communication of ideas could be made through any medium,
newspaper, magazine or movie, the said right is subject to reasonable restrictions in the larger
interests of the community and country set out in Art. 19(2). These restrictions intended to strike a
proper balance between the liberty guaranteed and the social interests specified under Art. 19(2). It
was further held that there should be a compromise between the interest of freedom of expression
and social interests. Court cannot simply balance the two interests as if they are of equal weight.
Court's commitment to freedom of expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and the community's interest is endangered.
The anticipated danger should not be remote, conjunctional or far fetched. It should have proximate
and direct nexus with the expression. The expression of thought should be intrinsically dangerous to
the public interests. It should be inseparably locked up with the act ion contemplated like the
equivalent of a "spark in a powder keg". It was held that prior censorship is permitted only on social
interests specified under Art. 19(2) with emphasis on maintenance of values and standards of society.
Therefore, censorship by prior restraint must necessarily be reasonable that could be saved by the
well accepted principles of judicial review. It was further observed that State cannot prevent open
discussion and open expression, however hateful to its policies. Everyone has a fundamental right to
form his own opinion on any issue of general concern. He can form and inform by any legitimate
means. The democracy is a government by the people via open discussion. The democratic form of
government itself demands its citizens an active and intelligent participation in the affairs of the
community. The public discussion with people's participation is a basic feature and a rational process
of democracy which distinguishes it with other forms of government. Though the above discussion
was not in relation to pre-censorship of a film, the principles is fully applicable to pre-censorship of
press also especially when "freedom of press has been shown some preference and described as
basic freedom". Odyssey Communication (P) Ltd. v. Lokvidayan Sanghatana ,90 wherein the print
media, i.e., freedom to air one's views has been described as lifeline of any democratic institution and
any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would
help usher in autocracy or dictatorship.
In Baragur Ramachandrappa v. State of Karnataka ,91 the Supreme Court rejected the challenge that
s. 95 of CrPC which confers power on the State to forfeit publication referred to in that section
including newspapers, was violative of Art. 19(1)(a). The issue as to the validity of the said section
arose in relation to a book which was considered by the petitioner to be objectionable, inflammatory,
hurtful and insulting to the sentiments and feelings of a religious sect known as "Veerashaivas" who
were followers of Basaveshwara, a great saint of the Twelfth Century. On behalf of the author, it was
contended that the entire matter should be considered in the backdrop of the philosophy and
principles underlying sub-clause (h) of Art. 51-A of the Constitution which envisages the development
of a scientific temperament, a feeling of humanist and a spirit of enquiry and reforms as well as
fundamental right of freedom of speech under Art. 19(1)(a). The court, after taking into consideration
 240

the vast disparities in language, culture and religion in the country, was of the view that unwarranted
and malicious criticism or interference in the faith of others could not be accepted and after referring to
earlier case-laws, it was held that the challenge could not be sustained. Court held that the publication
of the book would endanger public order and order of govt. was sustained. Court gave an option to the
author to remove the objectionable part and to have the book published, so that a permanent
prohibition of publication could be avoided, but was not accepted by the author. The decision of High
Court in Bargur Ramachandrappa v. State of Karnataka reported in92 was confirmed.93
Soon after the commencement of the Constitution and prior to the insertion of the word 'reasonable' in
Cl. (2), the question of the validity of censorship came up before our Supreme Court, in the case of
Brij Bhusan v. State of Delhi .94
The facts of this case95 were as follows:
Section 7(1)(c) of the East Punjab Public Safety Act, 1949, provided that "the Provincial Government if
satisfied that such action is necessary for preventing or combating anyactivity prejudicial to the public
safety or the maintenance of public order may, by order in writing addressed to a printer, publisher,
editor require that any matter relating to a particular subject or class of subjects shall before
publication be submitted for scrutiny."96
The Court had no difficulty in holding that the imposition of precensorship on a journal was a
restriction upon the freedom of speech and expression guaranteed by Cl. (1)(a) of Art. 19, and
according to the majority, the interests of 'public safety' or 'public order' were not covered by the
expression 'security of the State', and the impugned law was not, therefore, saved by Cl. (2) as it then
stood. Since this decision,97Cl. (2) has been amended by the Constitution (First Amendment) Act,
1951, inserting 'public order' in Cl. (21). Hence, the ground relied upon by the majority in the cases of
Ramesh Thappar98 and Brij Bhusan99 is no longer available. The word 'reasonable' was also inserted
by the same amendment.
Granting that censorship is imposed in the interest of one of the grounds permissible under Cl. (2), the
sole test for determining the validity of censorship, therefore, is whether it is 'reasonable'.
The Amendment of 1951, empowered the Court to adjudge the reasonableness of a restriction
imposed even on the right guaranteed by Art.19 (1)(a) and such restriction could. be struck down only
if it was unreasonable.
This change in the law was acted upon the Supreme Court in Virendra v. State of Punjab ,100 and
Babulal v. State of Maharashtra .101 In these cases, it has been held that--
Anticipatory act ion may be reasonable in emergent circumstances, e.g. to prevent a breach of the
peace.102
Whether it would be unreasonable in given circumstances would have to be determined applying the
various tests of urgency, duration, nature of the publications affected, and the, like. 103 Thus--
In times of war.
I. So far as times of war are concerned,--
Few people will question the necessity and justification for previous restraint upon publication of
prejudicial statements, which may affect the safety of the State. Thus, the American104 Supreme Court
justified it by saying--
"Many things that might be said in time of peace are such a hinderance to its efforts that their
utterance will not be endured so long as men fight... no Court could regard them as protected by any
constitutional right".105
In such an event, the State may impose restrictions on the freedom of press in so far as it is
necessary to protect itself from external aggression, e.g. by prohibiting and punishing any publication
which interferes with the war efforts of the national, such as inciting resistance to the participation by
the State in a war Shacfar v. U.S .,106 or to recruitment Gara v. U.S .,107 or conscription for the defence
forces Debs v. U.S .,108 undermining their morale U.S. v. Macintosh ,109 disclosing war measures or
 241

movements which may help the enemy, inciting curtailment of production of goods necessary for
prosecution of war.110 In Frahwerk v. US ,111 the Court upheld a conviction under the Espionage Act for
conspiracy to cause insubordination, disloyalty, mutiny or refusal of duty in the armed forces. The
conspiracy consisted of publication of a series of articles in a German language newspaper that was
sharply critical of the American War efforts in Europe.112
The "bad tendency test" was the prevailing standard in State courts during nineteenth century and
was adopted by Supreme Court when it began to address the First Amendment issues early in the
twentieth century. During the decade following 1st World War in such cases as Abram v. US ;113Gitlow
v. NY ;114Whitney v. California ,115 the Court employed this test in upholding conviction of political
radicals who had advocated violent act ion. Underlying the 'bad tendency test' is the assumption that
the First Amendment like other constitutional provisions is designed to promote public good. It follows
that the type of speeches that have good effect are entitled to constitutional protection, whereas
speech that threatens the security, order, or morals of the society may be regulated. The decisive
consideration thus is whether the regulated speech is likely to produce bad effect - and this, the Court
held is primarily a legislative question. In Gitlow v. NY ,116 declared that "every presumption is to be
indulged in favour of validity of statute".
In adopting the 'bad tendency test', courts maintained that the First Amendment was never intended to
protect all speeches and publication, rather, this amendment, like other provisions of the Bill of Rights
merely embodies guaranteed that had existed under English Law. Because, English law permitted
prosecution for abuse of freedom of press, so did the First Amendment. And because legislators are
properly elected and more familiar than Judges with societal conditions, legislative judgment about the
types of speech that are harmful generally should prevail. The bad tendency thus accords laws
affecting speech and press no closer judicial scrutiny than is accorded to any other laws. 117
Merely because a citizen expresses his sympathy and opposed United States in its involvement in
Vietnam War was held not a ground to refuse the sect for an elected representation in House of
Representatives.118
The right of a journalist to gather information may be restricted in the interest of the security of State,
e.g., by refusing passport to travel to a theatre of war Zenul v. Rusk ,119 or preventing him from
travelling even to domestic areas where visit to such areas would directly and materially affect the
safety and welfare of the nation as a whole, such as areas ravaged by flood, fire or pestilence. 120
While in times of peace, any form of previous restraint would be unconstitutional, in times of war,
censorship may be imposed, say, to prevent obstruction to military recruitment 121 or publication of news
relating to location of troops, or to prevent actual obstructiiqn of war efforts, 122or to prevent incitement
to act s of violence to the government.123 The reason is that--
'When a nation is at war many things that might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men fight and no Court could regard them as
protected by any constitutional right".124
But the right of the people to discuss the defence policy of the Government or to criticise the conduct
of armed forces, without disclosing military secrets, cannot be barred. 125
"That such a thing would be constitutional in England is evident from the fact that censorship of the
Press was established under Defence Regulation Act 39B, at the outbreak of World War II; but it is to
be noted, at the same time, that ere long, the scope of censorship was restricted to matters relating to
transactions with foreign countries, leaving the publication of the other matters free from previous
restraint, subject to prosecution under the law after publication.
From the twin cases of Ramesh Thappar126 and Brij Bhusan127 it would appear that our Supreme Court
would have upheld the validity of the impugned law, in those cases, if it had been made in the
interests of the security of the State, which is obviously affected in times of war or other similar
emergency,--subject, of course, to such procedural safeguards as may be feasible in such times.
In time of peace
 242

II. As regards censorship of the Press in times of peace, it is something unimaginable either in
England or in the United State1 in modern times. Censorship except in times of war is expressly
prohibited by the Constitutions of Jugoslavia (Art. 13); Danzig (Art. 79).
From the "internal" standpoint, security of the State implies that the existing Government's authority
"to protect itself against a violent revolution" or anarchy. 2 Though the State cannot impose censorship
in time of peace, the power of State to suppress "abuse" of freedom of press cannot be questioned. 3
Such measures can be taken to punish the advocacy of overthrow of government by force or violence
or the advocacy of violence as a means of accomplishing industrial or political change. 4
It was held that the Congress has the power to "penalise" publication of information whose disclosure
would endanger national security and even a member of the Congress who aids the private
publication of such information would be liable to be punished. But the First Amendment would "not"
tolerate any "previous restraint" against publication unless the interest of national security is "very
heavy". In that case, Court refused to grant injunction against publication of extracts from the
"Pentagon Papers" relating to the American foreign policy regarding the Vietnam War on the ground
inter alia that there was no "impending peril "to the national security by the disclosure of those papers
which related to events atleast four years before publication. 5 In USA, one of the primary reasons why
licensing or censorship has been held to be prima facie unconstitutional is that it leaves to the
unfettered discretion of an administrative authority to allow or not to allow an individual to exerciser the
freedoms of expression or that the relevant statutes offers no guidelines for the exercise of discretion. 6
Under our Constitution, the Supreme Court decision in Virendra v. State of Punjab 7 suggests that
even at a time of peace, censorship may be valid if it is subjected to reasonable safeguards, both from
the substantive and procedural standpoint, but not otherwise. The provisions before the Court 8were
ss. 2 and 3 of the Punjab Special Powers (Press) Act, 1956, which were similar to that in s. 7(l)(c) of
the East Punjab Safety Act, 1949 (which had been impugned in Brij Bhusan's case),9except that in the
Act of 1956 what was authorised was even more drastic than pre-censorship, viz.,--a total prohibition.
The Court held that s. 2, which provided for a right of representation against the order of the authority
and limited the power to a specified-period and as to publications of a specified class was valid, but s.
3, which had no such safeguards, constituted an unreasonable restriction. It would, therefore, follow
that a provision for pre-censorship for a limited period in emergent circumstances and subject to
procedural safeguards, e.g. in s. 144 of the Criminal Procedure Code is valid. This view of the Author,
expressed in the Introduction of this Commentary has received the approval of the Supreme Court in
Babulal's case.10
The result seems to be somewhat anomalous that censorship which was held to be unconstitutional
under the original Constitution, when imposed for the prevention of ordinary breaches of public order
in times of peace, has come to be upheld as valid after the insertion of 'public order' as an additional
ground of restriction in Cl. (2), notwithstanding the insertion of the condition of 'reasonableness', at the
same time. The conclusion cannot, of course, be helped, for, if reasonable restrictions for the
maintenance of security of the State be permissible, it is now equally permissible to impose
reasonable restrictions in the interests of public order, irrespective of the question whether the country
is at war or in peace. Censorship being a form of restriction, it is possible now to provide for its
imposition in the interest of public order, if the law imposing it is substantively and procedurally
reasonable. From the standpoint of legal interpretation, therefore, there is little to find fault with the
decision in Virendra's case.11
The "interest of security of State" is sought to be protected by some of the following enactments:

30a)  The Official Secrets Act ,

31b)  Sections 2 and 3 of the Criminal Law Amendment Act 1961,
21c)  The Customs Act 1962 (Section 11(2)(a) prohibits the export or import inter
alia of documents which are prejudicial to the security of State,
10d)  Sections 121 and 121A of the Indian Penal Code (abetment or conspiracy
to wage war against the Government of India, e.g., to instigate people to resort 'to
violence' to remove the government by some writing; Section 124A of the Indian Penal
 243

Code , i.e., to incite disaffection against the Government established by law in India, by
words which have a tendency to create public disorder. Section 131 of the Indian
Penal Code abetting mutiny or seduction from duty of a member of the armed forces
(Also see Sections 153A , 153B, 292, 293, 295A of the Indian Penal Code ),
6e)  Sections 3 and 8 of the Dramatic Performances Act 1876 empower the
State Government to prohibit and to seize the paraphernalia required for a dramatic
performance which is likely to excite feelings of disaffection against Government in India,
5f)  Provision in the Code of Criminal Procedure 1973, e.g., Sections 95(1),
108(1) (i)(a) are auxiliary measures to prohibit the commission of offence of sedition,
4g)  The Police (Incitement to Disaffection) Act 1922, (Section 3) makes it an
offence to do any act which causes or is likely to cause "disaffection towards the
Government established by law in India amongst the members of police force or induces
or attempts to induce any member of police force to withhold his services or to commit a
breach of discipline - Santokh v. Delhi Administration ,12
2h)  The Civil Defence Act 1968 empowers the Central Government to take
steps for prohibiting acts prejudicial to the civil defence in India which includes
measures, not amounting to act ual combat, which are necessary for the protection of
any person, property, place or thing in India against any hostile attack and such
measures may be taken "before, during at or after the time of such attack. For the said
purpose, the Central Government is empowered to make rules:
1. prohibiting the printing or publication of such matters,
1. demanding security from any press used for the purpose of printing or
publishing such matter, and
1. forfeiting copies of such publication containing any such matter:
4. The National Security Act provides for preventive detention of any
person "with a view to preventing him from acting" in any manner
prejudicial to the defence of India, the relation of India with foreign powers
and of security of India,
4. Besides, there are other State Act s which penalise publication of
matters which undermine the security of State, public order. It has been
held that incitement of employees to commit acts of violence against the
employers may be constitutionally punished in the interests of the security
of the State.
18.

The press is also prevented from publishing any matter which affects friendly relation with foreign
States. It includes not only 'libel' of foreign dignitaries, inducement against foreign enlistment, but also
propaganda in favour of rival claimants to authority in a foreign State after India has recognised, a
particular person or persons as lawful authority in the State, propaganda in favour of war with a State
at peace with India.
Any matter that disturbs public tranquillity disturbs public peace, i.e., unlawful assembly, rioting,
promoting enmity between different classes, etc. India being a secular State, though not concerned
with the faith of the people, and cannot take sides with any particular religion, is bound to create
conditions where the sentiments and feelings of people of diverse or opposing beliefs are not
molested by offensive publication as to provoke groups with 'possible' violent action. 13 In State of
Karnataka v. Dr. Praveen Bhai Thogadia ,14 the Supreme Court also held: "Whenever the authorities
concerned in charge of law and order find that a person's speech or act ions are likely to trigger
communal antagonism and hatred resulting in fissiparous tendencies gaining foothold, undermining
and affecting communal harmony, prohibitory orders need necessarily be passed to effectively avert
such untoward happenings".
Article 358 of the Constitution prior to 44th Amendment Act 1978, provided for suspension of Article
during the period of emergency under Art. 352. Hence censorship during the said period could be
imposed by the Government. After the Proclamation of Emergency in June 1975, Government issued
 244

a notification imposing pre-censorship under Part V of the Defence of India Rules, 1971, against the
publication of any prejudicial matter which enabled the competent authority to censor and prohibit any
publication on the ground that it is prejudicial to: (1) the defence of India, (2) civil defence, (3) public
safety, (4) maintenance of public order, (5) efficient conduct of military operations. Consequent to 44th
Amendment Act, 1978, operation of Art. 358(1) is confined to war or external aggression.
Consequently, Art. 19 can no longer be suspended by any Proclamation of Emergency on any
domestic ground, be it internal disturbance or armed rebellion. The amendment is in accordance with
law in USA or the UK.15Also see Regulation 2D of the Defence Regulations, 1941 (UK), where
propaganda against war efforts such as recruitment or publication of information about troop
movements and the like may be restrained by censorship. Since 1965, there is no system of
censorship or licensing of the Press in England. But, when the very existence of the State is in
jeopardy, the State has to prevent the dissemination of such information or comments which would
interfere with a successful prosecution of war which includes defence. Of course, such censorship
may be lawful even in times of war only if Parliament provides the requisite legal sanction. Thus,
during Second World War, the Emergency Power (Defence) Acts were passed in order to make such
regulation possible and Defence Regulation 2D was made under these Act s, empowered the Govt. to
suppress a newspaper if it was persistently publishing matters calculated to foment opposition to the
successful prosecution of the war e.g., to cause unrest amongst members of Defence Forces. The
restraints imposed by this Regulation were withdrawn after termination of war.
Neither the Parliament nor the courts have so far contemplated any censorship of the Press in times
of peace.16
Nevertheless, the reasonableness of a restriction, as has been already seen, depends, inter alia, upon
the extent or measure of the restriction and the circumstances in which a particular restriction may be
justified. There is no doubt that a total prohibition or pre-censorship is a most drastic form of restriction
and should be resorted to only when subsequent punishment or licensing or like measures are found
to be inadequate to suppress the mischief against which legislation is directed. As our Supreme Court
has said, in another context
".... when... the restriction reaches the stage of prohibition special care has to be taken by the Court to
see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict
scrutiny by the Court".17
Hence, even though it is not possible for our Courts to go to the length of holding that the total
prohibition or previous restraint on publication is per se obnoxious as has been held in the U.S.A.,18 it
is still possible for an Indian Court, anxious to uphold the freedom of expression,--the 'matrix of every
other freedom',19--to refuse to pass a previous restraint or total prohibition imposed upon this freedom
as reasonable except in the case of grave emergencies, such as a riot or an insurrection which cannot
be quelled otherwise than by cutting the inspiration at the source. Judged from this standpoint, the
provision in s. 2(1)(a) of the Punjab Special Powers (Press) Act, 1956, empowering the State
Government to prohibit the printing or publication of a writing, "likely to affect public order" "for the
purpose of preventing or combating any activity prejudicial to the maintenance of communal
harmony", could have been said to have been too wide and, therefore, substantively unreasonable. In
the facts of the case,20 the power was used to suppress a political agitation carried on through the
Press, namely, the "save Hindi agitation", by prohibiting any publication relating to that agitation, for a
specified period. From the standpoint of the reasonableness of the restriction imposed by the
impugned Act, it might, without more, have been pronounced as excessive. Of course, eventually,
there was an act ual breach of public order by a forcible entry of the Satyagrahis into the Secretariat
which led to the use of the power conferred by the Act by issuing a notification. But this fact cannot
validate the width of the power conferred by the Act. The facts of the case do not show that the law
and order situation at the time of its enactment was such that the public peace could not be
maintained by punishing the law-breakers or by any other means short of a total prohibition of any
literature relating to the Political agitation, such as forfeiting the particular issues which act ually incited
a breach of the peace. Censorship, in such a situation, cannot be reasonably prescribed to relieve the
Police of their duty to maintain the peace by prohibiting the printing or circulation of any particular
issue which is 'likely to affect public order.'
 245

The result of the foregoing decision21, is that--

To prevent a breach of the peace during a period of emergency (such as communal agitation),
temporary restrictions may also be imposed upon the publication of a specified class of matter in a
newspaper provided the rules of natural justice are complied with.
The validity of s. 144 of the Criminal Procedure Code which empowers the District Magistrate to
impose a pre-censorship on newspapers, has been upheld on the ground that the restriction imposed
by it was reasonable in view of the fact that it could be imposed only in emergent circumstances and
for a temporary period.22 Reiterating that s. 144 CrPC is constitutionally valid, court said that the said
provision is intended to deal with immediate prevention and speedy remedy regarding the existence of
the circumstances showing the necessity of an immediate action. The Court said that sine qua non for
an order under s. 144 CrPC is the urgency requiring an immediate and speedy intervention by the
passing of an order. The order must set forth the material facts of the situation. Such a provision can
be used only in grave circumstances for the maintenance of public peace. The efficacy of the
provision is to prevent some harmful occurrence immediately. The emergency must be sudden and
the consequences sufficiently grave. The Court also said that an order under s. 144 CrPC being an
order which has a direct consequence of placing restriction on the freedom of speech and expression
and the right to assemble peacefully should be an order in writing and based upon material facts of
the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing
a restriction upon fundamental rights of a citizen and thus adversely affect the interests of parties; and
secondly, under the provisions of CrPC , such an order is revisable and is subject to judicial review.
Therefore, it will be appropriate that it must be an order in writing referring to the facts and stating the
reason for imposition of such restriction. In case of mere apprehension without any material fact that
the apprehension is imminent and genuine, it would not be proper for the authorities to place such
restriction upon the rights of citizens. Mere 'likelihood or tendency' of danger is sufficient to invoke the
power. Power exercised when the demonstrators were sleeping during midnight was not proper. 23
Government of Punjab as per Punjab Special Powers (Press) Act, 1956 prohibited the printing of any
matter relating to a particular subject for a maximum period of three months in any newspaper when
the Government was satisfied that such action was necessary to prevent act ivities prejudicial to the
maintenance of communal harmony which is likely to affect "public order". The Act further provided the
Government to prohibit the bringing into Punjab any newspaper if it was satisfied that such act ion was
necessary to prevent any activities prejudicial to the maintenance of communal harmony. The said
provision was challenged before Supreme Court in Virendra v. State of Punjab ,24 on the ground that
the said provision amounts to unreasonable restriction upon freedom of press and has given very
wide, uncontrolled and arbitrary discretion to the Government to curtail freedom of Press.
Constitutional validity of s. 2 of the Act was upheld by the Supreme Court taking into consideration the
then prevailing circumstances in the State. It was observed that the Government is the best judge to
take anticipated action to prevent threatened peace. A law conferring discretion upon the executive
cannot be invalid if the policy and guidelines for exercising the discretion is prescribed. The duration of
the preventive act ion was also a factor which enabled the Supreme Court to uphold its validity.
Regarding s. 3, it was held as not valid as it provided no time limit for the operation of the order and
there was also no provision to make representation to the Government for review.
In this connection, it is worthwhile to note that Art. 19(2) of our Constitution makes no distinction
between times of war and of peace, and consequently authorises the State to impose restrictions
provided any of the grounds specified in the said clause are satisfied and the concept of
reasonableness only refers to "substantive" and "procedural" reasonableness of the restrictions
imposed by law. Censorship of the Press may be reasonable even during the time of peace provided
grounds under Section 19(2) are existing and which are exhaustive. 25
According to the author, though there is nothing in Art. 19(2) to indicate that censorship would be
unreasonable 'merely' because it has been imposed during the time of peace, resort to it, outside
periods of emergency should be restricted to exceptional circumstances and subject to proper
safeguards taking into consideration the inherent vices of pre-censorship:
 246

6)  While in a judicial trial for punishment of an illegal publication, the decision is
an objective one, by the Courts. Censorship makes the bureaucracy supreme, acting in
secret, and upon subjective consideration,
7)  In a judicial trial, the merits of the publication would be examined together
with a presumption of reasonable doubt in favour of the accused; no such safeguard is
available under any system of censorship,
5)  Once censorship is imposed, the censor becomes a dictator, and beyond
effective control, because the very nature of censorship excludes judicial review, even if
there is any provision for administrative appeal, the need for promptitude in the business
of the Press hardly leave any room for any prolonged proceedings to fight against the
order of censor regarding an editorial or an item of news. The administrative and
subjective determination of the censor thus practically becomes final. 26 In that case (it is
better to summarise what the court said), the Court imposed stringent procedural
requirements on such beforehand examination. Court said: "We hold that a non-criminal
process which requires the prior submission of a film to a censor avoids constitutional
infirmity only if it takes place under procedural safeguards designed to obviate the
dangers of a censorship system. First, the burden of proving that the film is unprotected
expression must rest on the censor. Second, while the State may require advance
submission of all films, the order to proceed effectively to bar all showings of unprotected
film, the requirement cannot be administered in a manner which would lend an effect of
finality to censor's determination whether a film constitutes, protected expression.
Because only a judicial determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression, only a procedure requiring a judicial determination
suffices to impose a valid final restraint. To this end, the exhibitor must be assured by
statute or authoritative judicial construction, that the censor will, within a specified brief
period, either issue a licence or go to court to restrain showing the film. Any restraint
imposed in advance of a final judicial determination on the merits must similarly be
limited to preservation of status quo for the shortest fixed period compatible with sound
judicial resolution. The procedure must also assure a prompt final judicial decision, to
minimize the deterrent effect of an interim and possibly erroneous denial of licence.
Without these safeguards, it may prove too burdensome to seek review of the censor's determination.
Particularly in the case of motion pictures, it may take very little to deter exhibition in a given locality.
The exhibitor's stake in any one picture may be sufficient to warrant a protracted and onerous course
of litigation. The distributor, on the other hand, may be equally unwilling to accept the burdens and
delays of litigation in a particular area, when, without such difficulties, he can fully exhibit his film in
most of the rest of the country.
Publication of Parliamentary Proceedings by the Press
While the privileges in the matter of publication of Parliamentary proceedings shall be fully discussed
under Art. 105, post, a summary of the law should be given in the present context inasmuch as, in
India, the course of legislation relating to this subject has undergone notable changes, forward and
retrograde.
U.K.
In England, each House of Parliament has an absolute privilege to publish its proceedings, so that
neither an officer of Parliament nor any Member is liable under the ordinary law for defamatory or
other unlawful matter if contained in a proceeding of a House of Parliament, and published in an
official report.27 In Stockdale v. Hansard ,28 it was held that an order of either House authorising the
publication of papers outside Parliament did not render the publisher immune from liability for libel.
Thereafter Parliament enacted the Parliamentary Paper Act, 1840 by which a qualified privilege was
conferred. But the legislation does not provide any assistance for those who publish unauthorised
account of parliamentary papers or proceedings such as newspaper report. In these cases, if an
action for damages was brought, the publisher could only on the common law defence of absolute
privilege (when the whole of a debate or papers is reported) or qualified privilege (when less than the
 247

whole is published). The report has to be fair and accurate and made without malice and it is for the
claimant to prove the contrary. s. 15 of the Defamation Act, 1996 provides a defence of qualified
privilege in respect of fair and reports of proceedings of a legislature anywhere in the world. 29
If, however, such proceedings are published privately, or through an unofficial Press, there is no
absolute liability and both the Member who made such speech, as well as the Press which published it
would be liable under the ordinary law. The common law, nowhere, offers a qualified privilege having
regard to the fact that such matter was contained in a Parliamentary proceeding, the publication of
which, even though made through the private Press, was essential to "the welfare of the nation". 30
The Press, in the U.K., thus, has the immunity for publication of an unlawful matter contained in a
Parliamentary proceeding, on the condition that this report is--
(a) fair and accurate,31 and (b) made in good faith and without malice.32
The aforesaid common law plea of qualified privilege has been extended by the Defamation Act, 1952,
(Now the Defamation Act, 1996) under which a newspaper will not be liable for defamation if--
(a) the report complained of is of public concern, (b) is not otherwise prohibited by law, and (c) the
newspaper has published, at the plaintiff's request, a reasonable statement by way of contradiction or
explanation on the report complained of.33
India
I. In India, after the commencement of the Constitution, it was held by the Calcutta High Court 34 that
the foregoing qualified privilege of the Press in respect of publication of Parliamentary proceedings
under English common law, was not available in a criminal proceeding in India because--
"the immunity conferred by Cl. (2) of Art. 105 or 194 of the Constitution was confined to publication 'by
or under the authority of the House,' and that there was nothing else to except a newspaper report
from the criminal law of defamation as codified in s. 499 of the Indian Penal Code . Hence, a
newspaper report, however, fair or faithful would be under criminal liability for defamatory statements
in such report, even though it merely reproduced a speech or other proceeding in the Legislature, or
even though in civil proceedings the English common law rule in Wason's case35 might be applicable."
The press has no right to publish debates of the Assembly and the Press, in the context of
constitutional discipline cannot invade the privacy of public. 36
II. After the aforesaid decision,37 Parliament enacted the Parliamentary Proceedings (Protection of
Publication) Act, l956, to bring the Indian law in tune with the English common law and the Law of
Libel Amendment Act, 1988 and the Defamation Act, 1952. The immunity conferred by it was extended
to newspapers as well as radio broadcasts and both civil and criminal liability, provided three
conditions were satisfied--

31a)  The publication must be a substantially true report;

32b)  It must be a report of the proceedings of either House of Parliament;
22c)  The publication must be for the public good;
11d)  The publication must not be act uated by malice.
But since it was an Act made by Parliament, it could not extend to proceedings of a State Legislature
[Art s. 105(3), 194(3)]. Most of the State Legislatures, therefore, enacted such legislation of their own,
e.g. the Orissa Legislative Assembly Proceedings (Protection of Publication) Act . 1960.
III. During the Emergency following the Allahabad decision in the election case against the Prime
Minister (Mrs. Gandhi), it was felt that high dignitaries should be protected from defamatory
publications in the Press, even though they might relate to reports in Parliament. Hence, the
Parliamentary Proceedings (Protection of Publication) Act, 1956, was repealedby an Ordinance
promulgated by the President on December 8, 1975, which was enacted, in January, 1976, as the
Parliamentary Proceedings (Protection of Publication) Repeal Act, 1976.
 248

The reason which prompted the Government of India to make this repealing Ordinance was given as
follows:38
"The Constitution already protects, against all laws, the publication of speeches made on the floor
when these are so authorised for publication by Parliament itself. The extension of this privilege
beyond Parliament so as to include the newspapers was done with the hope that the privilege would
be used for education of the public.
In actual practice, however, this has already been missed, especially over the last few years with the
result that newspapers have been splattered with reproduction of observations that would have
amounted to violation of the common laws of the land, and most of which were made against the
specific directions of the presiding officers. This has resulted in the lowering of standards of
journalism. This law has, therefore, been repealed."
IV. The repeal of the Union Act, however, left several questions outstanding--

32i)  What has been repealed is the Union Act. It would not relate to proceedings
in State Legislatures so long as the State enactments to the same effect are also not
repealed by the respective State Legislatures.
30ii)  After the repeal of the Central Act, what would be the law in India (a) in civil
proceedings for tort arising out of publication of the report; (b) in criminal prosecution
under s. 499, I.P.C.?
Current Law
A. So far as civil proceedings are concerned, the position has been changed since the publication of
the previous Edition, owing to the codification of the law as follows:
Article 361A, inserted by the 44th Amendment of the Constitution, now deals with the protection of
publication of proceedings of Parliament and State Legislatures. Besides this, in 1977, the
Parliamentary Proceedings (Protection of Publication) Act, has been passed, having the same effect. 39
The said legislation came into force with retrospective effect from 25.3.1977, though the act was
passed only on 15.4.1977 (Act 15 of 1977).
Section 3 of the said legislation reads thus:
"3(1) Save as otherwise provided in sub-s.(2), no person shall be liable to any proceedings civil or
criminal in any court in respect of the publication in a newspaper of a substantially true report of any
proceedings of either House of Parliament unless the publication is proved to have been made with
malice.
(2) Nothing in sub-s.(1) shall be construed as protecting the publication of any matter, the publication
of which is not for public good".
In C.K. Daphthary v. O.P. Gupta 40court said that the Act (previous legislation with similar provision)
provides a legal shield to newspapers and broadcasting agencies, who may publish "a substantially
true report of the proceedings of either House of Parliament unless the public was made with malice
and was for public good".
The Act applies to publication of proceedings of either House of Parliament. It has no application to
proceedings in a State legislature, since Parliament has no competence to make any law relating to
the powers or privileges of State legislature in view of Entry 39 of List II of VII Schedule to the
Constitution.
The position as regards defamation arising out of the publication of proceedings of a State legislature
would, therefore, continue to be governed by common law, as regards civil liability and s. 499 IPC as
regards criminal liability.41 The State of Orissa has enacted a separate legislation on the subject. Other
offences such as obscenity, incitement to an offence and the like would also be punishable under the
IPC or other special law dealing with such offence.
 249

Briefly speaking, in order to claim absolute immunity from any legal proceedings under this Article, the
following conditions must be fulfilled--

7.  The report must be a report of the 'proceedings' of a House of the Union or a
State Legislature. Hence, it must be relevant to a motion or other business before the
House,42 and must not have been 'expunged'.43
But, in order to be entitled to the protection, the speeches themselves need not be
relevant to the business before the House.44
10I.  It must be a 'report' as distinguished from an article or 'comment'.
8II.  Such report must be substantially, true. Hence, an extract or a garbled or
preverted report would not be protected.45
6V.  The reporting must not be actuated by malice.46

On the question of Members of Parliament and the protection for one who publishes a report or
papers or votes or proceedings by or under the authority of Parliament, Supreme Court held: "Member
is answerable in a Court of Law or any similar Tribunal for what he has said in Parliament. This again
is recognition of the fact that a member needs the freedom to say what he thinks is right in Parliament
undeterred by the fear of being proceeded against. A vote, whether cast by voice or gesture or the aid
of a machine, is treated as an expression of speech or a substitute for speech and is given protection
that the spoken word has. What is protected, is what has been said and a vote that might have been
cast, but was not. Secondly, the protection is broad, being 'in respect of". It is so given to secure the
freedom of speech in Parliament that sub-article (1) provides for. It is necessary, given the role
Members of Parliament must perform. The protection is absolute against Court proceedings that have
a nexus with what has been said, or a vote that has been cast in Parliament. A person who publishes
a report or papers or voters or proceedings by or under the authority of Parliament is thereby given
protection in the same broad terms against liability to proceedings in any Court connected with such
publication.47
Learned Judges AGRAWAL & ANAND said in the same case: "The freedom of speech that is
available to the Members of Parliament under Art. 105(1) is wider in amplitude than the right to
freedom of speech and expression guaranteed under Art. 19(1)(a), since the freedom of speech under
Art. 105(1) is not subject to limitation as contained under Art. 19(2). Clause (2) of Art. 105 confers
immunity in relation to proceedings in courts. It can be divided into two parts. In the first part, the
immunity has been conferred (1) only on the Member of Parliament; (2) with regard to liability in any
proceedings in any court, which would include civil and criminal proceedings; (3) in respect of anything
said or any vote given by such member; (4) in any Parliament or in any committee thereof. In the
second part, immunity is conferred on a person in respect of publication by or under the authority of
either House of Parliament of any report, paper, votes or proceedings. This immunity that has been
conferred under clause (2) ensures that the freedom of speech that is guaranteed under clause (1) of
Art. 105 is totally absolute and unfettered.
Elaborating the meaning of the expression "in respect of", the Court said: "Having regard to the
expression "in respect of" in Art. 105(2), it must be held that Art. 105(2) protects a Member of
Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with
anything said, or a vote given by him in Parliament.
Article 361A provides freedom of Press regarding publication of proceedings both of Parliament and
State Legislature and any legislation contrary to the provisions therein is void. The article makes no
distinction between civil and criminal proceedings in granting absolute immunity. Being a constitutional
provision, Art. 361A would override the statutory provision in Section 499 of the Indian Penal Code .
According to the author "Being a constitutional provision Art. 361A would override the statutory
provision in Section 499 of the Indian Penal Code . In the result, after the adoption of Art. 361A,
there would be no liability for defamation whether civil or criminal (notwithstanding the fact that report
 250

of legislative proceedings is not one of the exceptions included in Section 499 of the Indian Penal
Code ) - for publication in a newspaper of a substantially true report of legislative proceedings, would
be immune under Art. 361A, unless actuated by malice".48
The Press will be absolutely immune from any legal proceeding civil or criminal subject only to the
following conditions and exceptions:- (a) The report must be a report of the proceedings of a House of
the Union or State Legislature.
This condition begs the technical question as to what would constitute "proceedings" of a House of the
Legislature. The law on the point may be summarized thus:- It would include any formal act ion of a
House of the Legislature during the whole process leading upto the debate, by which it reaches a
decision.49 Though no exhaustive definition of the expression has so far been attempted either by
Court or by Parliament itself, in England, the following observation of Select Committee in Duncan's
case 193850 explains the principle, underlying the expression. "It covers both the asking of a question
and the giving written notice of such question and includes everything said or done by Member in the
exercise of his functions as a member in a Committee of either House as well as everything said or
done in either House in the transaction of Parliamentary business". It is clear that in order to constitute
a proceeding of a Legislature, it must relate to 'some business' before it and would thus exclude (i)
casual conversation between Members within the House e.g., conversation relating to private affairs
which are not within the scope of the duties of a Member of Legislature. 51
In Tej Kiran Jain v. M. Sanjiva Reddy ,52 it was held that the absolute immunity of a Member "for
anything said" in the Legislature under Art s. 105(2) or 194(2) extends to everything said by the
member during the course of the business in a House of the Legislature, while it was sitting and its
business was being transacted, even though what was said "might not be relevant" to the business of
the House. It would seem that some principle should be applied in including such irrelevant speeches
made during the course of a formal business of the House within the scope of the "proceedings", to
confer absolute protection to the Press in publishing such speech. But the same decision has
observed that if anything is said in the course of a "private" conservation and not as a part of the
business, will not get such protection.53
Malice may be presumed where only an extract or a garbled version of a Member's speech in the
House was reported by the newspaper.54
Report of Judicial Proceedings
U.K.

8.  The general principle of administration of justice in England, which is

generally followed in India, is that a Court must be open to the public; and the publicity of
judicial proceeding is regarded as a guarantee of public security that justice will be
properly administered,55 and free from bias or prejudice or judicial caprice. 56 A trial in
open Court is thus essential for maintaining public confidence in the administration of
justice.
Except in some exceptional cases noted below, an exclusion of the public (or the Press) from a judicial
proceeding may, therefore, render the proceeding void. In India, a breach of this principle would
involve a violation of the citizen's fundamental 'right to know' which is guaranteed by Art. 19(1)(a).
U.S.A.
In the U.S.A., the right to a public trial in criminal cases, is a fundamental right of the accused, under
the Sixth Amendment. This right cannot be denied unless the accused consents, 57 or there is an
overriding public interest for holding the trial in camera. such as (a) the accused's right to a fair trial,58
(b) Government's interest in inhibiting disclosure of sensitive information; (c) protection of the privacy
of persons not before the Court;59(d) protection of victims of sex crimes from embarrassment. 60
In Richmond Newspaper v. Virginia ,61 the question was considered by the U.S. Supreme Court. It was
held that the origin of the proceeding which has become modern criminal trial in Anglo-American
justice can be traced back beyond reliable historical records. Throughout its evaluation, the trial has
 251

been open to all who cared to observe. It was held that such openness gives assurance that
proceedings are conducted fairly to alls concerned and it discourages perjury, the misconduct of the
participants and decision based on secret bias and partiality. Moreover, public trial has significant
community therapeutic value. When a shocking crime occurs, the community reaction on all outrage
and public protest often follows. Thereafter the open process of justice serves an important
prophylactic purpose, providing an outlet for community concerned hostility and emotion. It was held
that there was a guaranteed right of the public under the First and the Fourth Amendment of the U.S.
Constitution to attend trial. It was observed that as right to attend the criminal trial is implicit in the
guarantee of the First Amendment, when the freedom to attend such trial which the people have
exercised for centuries, important aspects of freedom of speech and of the "press" could be
eviscerated.
In Globe Newspaper Co. v. Superior Court ,62 Supreme Court (by majority) declared the provision in a
State law which enables the trial Judge to exclude the Press and general public from the court-room
during the testimony of the victim of sexual offence as unconstitutional. It was held that the Press and
the general public have a constitutional right of access to criminal court. It was held that interest of
safeguarding the physical and psychological and well being of a minor is a compelling one. But even
then it does not justify a mandatory closure rule for it is clear that the circumstances of the particular
case may affect the significance of the interest. It was held that the trial court can determine on a case
to case basis whether closure is necessary to protect the welfare of the minor victim. The minor's age,
psychology and maturity and understanding the nature of crime desires of the victim and the interests
of the relatives and parents of the victim are relevant factors. It was held that rule of automatic closure
will lead to an increase in a number of sex victims coming forward and co-operating with the State
authority.
In Gannett v. De Pasquab ,63 it was observed that members of the public have no constitutional right
under the Sixth Amendment to attend criminal trial and the order prohibiting the press from pre-trial
hearing was held valid. In Press Enterprises Co. v. Superior Court ,64 the Court extended the principle
declared in Richmond Newspaper's case,65 to transcript of a preliminary hearing in a criminal case
over the objections of the Judge, prosecutor and defendant, all of whom thought that public access to
the transcript would endanger a fair trial. The court treated a preliminary hearing, at which the court
decides whether there is sufficient evidence against the accused to warrant a trial, as the
constitutional equivalent of a criminal trial.
Richmond Newspaper's case, though established a presumptive right of access to criminal trial, left
undecided the question whether the right of access extends to civil court room proceedings or to other
aspects of government operation. The issue has been litigated with respect to a claimed press right of
access to "prison". In Pell v. Procuniar ,66 the court upheld a California regulation that barred the press
access to sources of information with prison inmates. The court reasoned that the regulation did not
abridge free expression because it did not deny the press access to sources of information available
to members of public. The court rejected the contention that the Constitution imposes upon
government the affirmative duty to make available to journalists sources of information not available to
members of general public.67 In Houchim v. KQED ,68 the Court upheld correctional authorities' refusal
to grant reporters special access to prison facilities and to prisoners. Court also observed that First
Amendment does not guarantee the press any basic right of access superior to that of the public
generally.
India
In India, the general rule of open trial is codified in s. 153B of the Civil Procedure Code and s. 327 of
the CrPC .69

11I.  The foregoing general principle, however, is subject to an exception in

certain cases where the Court would be justified in holding a trial in camera, in the
interest of a proper administration of justice itself, namely where the very purpose of
finding the truth would be defeated if witnesses are required to give evidence subject to
public gaze.70
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U. K.
In the U.K., provisions for in camera hearing is provided by statute in matrimonial (Matrimonial Causes
Act, 1950; Magistrate's Courts Act, 1952) and Juvenile (Children's Act, 1933) proceedings.
India
In India, the exception to the general rule of public trial is embodied in the Provisos to s. 153B of the
C.P. Code and to s. 327 of the Cr. P.C., both of which are in identical language, as follows:
"Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry
into, or trial of, any particular case, that the public generally, or any particular person, shall not have
access to, or be or remain in, the room or building used by the Court."
Both the Provisos confer upon the presiding officer of a Court discretionary power to exclude the
public from the proceedings in a particular case,71 but the occasions in which such discretion may be
properly exercised are not specified in these provisions in the Codes; they are, in the absence of other
statutory provisions, to be derived from general principles evolved in the interests of a proper
administration of justice itself.72
It has thus been held that even in civil proceedings, the Court may impose suitable restrictions upon
the right of the public to be present and of the Press to publish report of in camera proceedings where
the evidence would be extremely obscene and detestable.73
In Naresh's case,74 the majority of the Supreme Court upheld an order of the High Court, in a libal suit
which prohibited publication of the evidence of a witness (during the pendency of the proceedings), at
an open trial, on the ground that such publication might injure his business.75
It was held therein that the Press has no fundamental right under Art. 19(1)(a) to publish the evidence
of witnesses during trial before the Court. The order of the Court that evidence of the witnesses should
not be published in the newspaper was held valid as the judicial decision purports to decide the
controversy between the parties before Court and such decision would not affect the right of the
citizen under Art. 19(1)(a) of the Constitution. Then the Press has no fundamental right to publish
court's proceedings. But in regard to trial in sexual cases proceedings should be held 'in camera'
invariably.76
In general, it may be said that a Court would be justified to order in camera trial or to prohibit its
publication--

32a)  Where publicity might prevent the witness from speaking the truth. 77
33b)  Where publicity should be restricted in the interests of decency 78 or morality
or even of privacy.79
Though the right to privacy is implicit in the right to life and liberty, a publication based on
public records including court records becomes unobjectionable; the reason being that
once a matter becomes a matter of public record, the right to privacy no longer subsists.
To the said rule, there is an exception covered by Art. 19(2) regarding case of a female
who is a victim of sexual assault, kidnap, abduction or a like offence, should not be
further subjected to the indignity of her name and the incident being published in the
media, i.e., in the interest of decency.80 See also Section 228-A of the Indian Penal Code
-publishing the identity of the victim in certain offences (Rape) against women is
prohibited.
23c)  Where publicity of the evidence might compel a business to close down, the
Court may order that the hearing should be in camera and the proceedings should not
be reported until judgement.81
There are several statutes in India which define the occasions when a Court would be justified in
holding a trial in camera, e.g. Sections 53 of the Divorce Act , 1869; Sections 14 of the Official
Secrets Act , 1923; Sections 22 of the Hindu Marriage Act , 1955; s. 151 of the Civil Procedure
Code82 (which reserves the inherent power of each Court to make such orders as may be necessary
 253

for the ends of justice or to prevent abuse of the process of the Court). The Provisos to ss. 153B,
Code of Civil Procedure and s. 327 , CrPC provide additional power to a criminal court to hold a trial
or inquiry or part thereof in camera. The High Court has inherent power in this behalf. 83 What would
meet the 'ends of justice' will always depend upon the facts of each case (para. 30). 84
III. Where judicial proceedings take place in open Court, the Press, along with other members of the
public, are entitled to be present and also to publish reports of such proceedings, 85 subject to the law
of defamation which gives the Press 'qualified privilege'.
Such reporting is also restricted by some statutory exceptions in England, e.g.--
U. K.

33i)  In matrimonial cases, the Press may publish only the names of the parties,
the issues and the judgment, but not the evidence Judicial Proceedings (Regulation of
Reports) Act, 1926; Magistrates' Courts Act, 1980).
31ii)  In juvenile proceedings, the identify of the children involved should not be
published (Children and Young Persons Act, 1933).
India
IV. Where judicial proceedings are held in camera, a journalist cannot attend or to publish any report
of such proceedings. Report of such proceedings may constitute contempt of court [see below].
But even when an inquiry or trial is held in camera, to the exclusion of Pressmen, the judgement in
such case must be pronounced in 'open Court' (s. 353, Cr. P.C.). So that the Pressmen shall have a
right to be present when the judgement is pronounced, in any case before a Criminal Court.
Contempt of Court by the Press
According to A. G. NOORANI, an eminent lawyer and columnist, "In every democratic country
governed by rule of law, the law of contempt is being liberalised. India presents the depressing
spectacle of a trend in the opposite direction, launched by its Supreme Court, no less". 86
According to the learned author, Supreme Court's record on this branch of law over the years "has
been disquieting". In E.M.S. Namboodiripad v. Narayanan Nambiar ,87 the expression that judiciary "as
an instrument of oppression" was found to be contempt and convicted. At the same time, when Union
Law Minister P. Shiv Shanker observed that "Supreme Court composed of the elements from the elite
class had their 'unconcealed sympathy' for the haves, i.e., zamindar and anti-social elements, i.e.,
FERA violators, bride burners and a whole horde of reactionaries have been found their haven in the
Supreme Court" was held not contemptuous.88 Learned author has also taken support from late H. M.
SEERVAI from the book Constitutional Law of India,89 where another 'influential' person Mohammed
Yunus was let off where he said the judge who held the National Anthem case 'has no right to be
called either as an Indian or a Judge'.90
The learned author has also extracted the comment of eminent jurist SEERVAI when it is said: "If a
humble citizen had said of the Supreme Court what Shiv Shanker and Mohammed Yunus had said,
the public familiar with the recent functioning of the Supreme Court would have little doubt that the
humble citizen would have been found guilty of contempt and punished after the Supreme Court gave
an eloquent lecture on its duty to uphold the dignity of the Supreme Court and its judges in high
esteem". (at page 765).
Learned author has also taken note of LORD DENNING'S observation in R v. Commissioner of Police
of the Metropolis, Exparte Blackburn (No. 2) ,91 which says, "Let me say at once that we will never use
this jurisdiction as a means to uphold our own dignity. That must rest on surer foundation. Nor will we
use it to suppress those who speak against us. We do not fear criticism nor do we resent it. For there
is something far more important at stake. It is no less than the freedom of speech itself. It is the right
of every man, in Parliament, or out of it, in the Press or even the broadcast, to make fair comment,
even outspoken comment, on matters of public interest. ...". In the same case, SALMAN LJ said: "It is
the inalienable right of everyone to comment fairly upon any matter of public importance. This right is
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one of the pillars of individual liberty - freedom of speech, which our courts have always unfailingly
upheld". The learned author says: "It follows that no criticism of judgment, however vigorous, can
amount to contempt of court, perhaps it keeps within its limits of reasonable courtesy and good
faith. ... whether expressed in good taste or bad taste, seems to me to be within those limits". With the
above introduction, let us see what the law is, as interpreted by our Supreme Court.
I. Under the Indian Constitution the freedom of the Press is to be derived from the freedom of
expression belonging to all citizens, and subject to the same limitations under Cl. (2) of 19, a special
problem arises when a Court seeks to proceed against the Press for contempt of Court in respect of
some publication in a newspaper or other journal of the Press.
That problem arises because in this sphere there are two public interests involved, viz., (a) the need
for freedom of the Press; (b) the need to prevent any interference with the due administration of justice
by an independent judiciary, free from any pressure from without.
From various judicial decisions where the problem has been discussed, the following propositions may
be deduced:
(i) Even the criticism of a judgment will be immune from the law of contempt only if it constitutes a 'fair
comment'. This is embodied, in India, in Sections 5 or the Contempt of Courts Act , 1971. 92
What is a Fair Comment or Criticism and its Limits?
In a democracy, judges and the courts alike are subject to criticism and if reasonable argument or
criticism in respectful language and tempered with moderation is offered against any judicial act or
conduct of a judge, the institution of the judiciary and its functioning as contrary to law or public good,
no court would treat criticism as contempt of Court.
Under Sections 4 of the Contempt of Courts Act , 1971, a journalist has fundamental right to carry on
her profession under Art. 19(1)(g) of the Constitution and she has a fundamental right as well as to
attend the proceedings in court under Art. 19(1)(d). Right to freedom of speech and expression
guaranteed under Art. 19(1)(a) includes right to publish as journalist a faithful report of the
proceedings witnessed and heard in court. Freedom of speech and expression includes freedom of
press.93While s. 4 of the Act protects fair and accurate report of judicial proceedings, s. 5 protects fair
criticism of judicial decision94 because the public has an interest in the proper administration of justice.
It is truly said that a judge who has not committed a mistake is yet to be born. Our legal system in fact
acknowledges the fallibility of the courts and provides both internal and external checks to correct the
errors. The law, the jurisprudence and the precedents, the open public hearing, reasoned judgment,
appeals, references, revisions and reviews constitute internal checks while objective critiques,
debates and discussion of judgments outside the court and legislative correctives provide external
checks. Together, they go a long way to correct judicial errors. 95 Undoubtedly, judgments are open to
criticism. No criticism of a judgment, however, rigorous can amount to contempt of Court, provided it is
kept within the limits of reasonable courtesy and good faith. Fair and reasonable criticism of a
judgment, which is a public document or which is a public act of a judge concerned with administration
of justice would amount to contempt. Such a criticism may fairly assert that the judgment is incorrect
or an error has been committed both with regard to law or established facts. However, if the criticism is
likely to interfere with due administration of justice or undermines the confidence which the public
reposes in the Courts of law as courts of justice, the criticism would cease to be fair and reasonable
criticism, but would scandalise Courts and substantially interfere with the administration of justice.
Liberty and free expression is not to be confused with a licence to make unfounded, unwarranted and
irresponsible aspersions against judges or the Courts in relation to judicial matters. No system of
justice can tolerate such unbridled licence.
To ascertain the good faith and the public interest, the Courts have to see all the surrounding
circumstances including the person responsible for comments, his knowledge in the field regarding
which the comments are made and the intended purpose sought to be achieved. All citizens cannot be
permitted to comment upon the conduct of the Courts in the name of 'fair criticism' which, if not
checked, would destroy the institution itself.96 It was held therein that any attempt to make news out of
nothing just for the sake of sensationalism has to be deprecated. When there is a temptation to
 255

sensationalise, particularly at the expense of those institutions or persons who, from the nature of their
office, cannot reply, such temptation has to be resisted, and if not, it would be the task of the law to
give clear guidance as to what is and what is not permitted. 97 In R v. Commissioner of Police of the
Metropolis exparte Blackburns (No.2) ,98 LORD DENNING said:
"Let me say at once we will never use this jurisdiction as a means to uphold our own dignity. That
must rest on surer foundations. No will we use it to suppress those who speak against us. We do not
fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than
freedom of speech itself.
It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair
comment, even outspoken comment, on matters of public interest. Those who comment can deal
faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decision
is erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us
will remember that, from the nature of our office, we cannot reply to our criticism. We cannot enter into
public controversy. Still less political controversy. We must rely on our conduct itself to be its own
vindication.
Exposed as we are to the winds of criticism, nothing which is said this persons or that, nothing which
is written by this pen or that, will deter us from doing what we believe is right; nor I would add, from
saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an
option when things are ill done".
In P.N. Duda v. P. Shivshankar ,99 it was held: "Justice is not a cloistered virtue : she must be allowed
to suffer the scrutiny and respectful, even though outspoken comments of ordinary men"--said LORD
ATKINS in Ambard v. AG for Trinidad and Tobago .100 Administration of justice and judges are open to
public criticism and public scrutiny. Judges have their accountability to the society and their
accountability must be judged by their conscience and oath of their office, that is, to defend and
uphold the Constitution and the laws without fear and favour. This the Judge must do in the light given
to them to determine what is right. And again, as has been said in the famous speech of Abraham
Lincoln "With malice towards none, with charity to all, we must strive to do the right, in the light given
to us to determine that right". Any criticism about judicial system or the judges which hampers the
administration of justice or which corrodes the faith in the objective approach of judges and brings
administration of justice into ridicule must be prevented. The contempt of court proceedings arise out
of that attempt. Judgments can be criticised; the motives of the judges need not be attributed; it brings
the administrations of justice into deep disrepute. Faith in the administration of justice is one of the
pillars through which democratic institution functions and sustains. In the free market place of ideas,
criticism about judicial system or judges should be welcomed, so long as such criticism does not
impair or hamper the administration of justice. This is how courts should approach the power vested in
them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo
moto or at the behest of a lawyer or a litigant".
"Fair and reasonable criticism of a judgment which is a public document or which is a public act of a
judge concerned with the administration of justice would not constitute contempt. In fact such fair and
reasonable criticism must be encouraged because after all, much less judges can claim infallibility.
Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both
with regard to law or established facts. But when it is said that a judge had a pre-disposition to convict
or deliberately took a turn in discussion of evidence, because he has already made up his mind, is
attributing motives, lack of dispassionate and objective approach and analysis and prejudging of the
issues which would bring administration of justice into ridicule. Criticism of judges would attract greater
attention than others and such criticism sometimes interferes with the administration of justice and that
must be judged by the yardstick whether the administration of justice into ridicule or hampers
administration of justice. After all, it cannot be denied that pre-disposition or subtle prejudices or
unconscious prejudices or what in Indian language is called "sanskar" are inarticulate major premises
in decision-making process. That element in the decision-making process cannot be denied, it should
be taken note of".101
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"We are not subjects of a King, but citizens of a republic and a blanket ban through contempt power
stifling criticism of a strategic institution, namely, administration of justice, thus forbidding the right to
argue for reform of the judicial process and to comment on the performance of the judicial personnel
through outspoken or marginally excessive criticism of the instrumentalities of law and justice, may be
a tall order. For change, through free speech is basic in our democracy and to prevent change through
criticism is to petrify the organs of democratic government. The judicial instrument is no exception. 102
The Supreme Court has held: "Freedom of speech and expression has always been considered as
the most cherished right of every human being. In the land of Gautam Budh, Mahavir and Mahatma
Gandhi, the freedom of speech and expression and the freedom to speak one's mind have always
been respected. After independence, the courts have zealously guarded this most precious freedom of
every human being. Fair criticism of the system of administration of justice or the functioning of the
institution or authorities entrusted with the task of deciding rights of parties gives an opportunity to the
operators of the system/institution to remedy the wrong and also bring about improvement. Such
criticism cannot be castigated as an attempt to scandalize or lower the authority of the court or other
judicial institution or as an attempt to interfere with administration of justice except when criticism is ill-
motivated or is construed as a deliberate attempt to run down the institution or an individual judge is
targeted for extraneous reason."103
"The Press does have the right which is its professional function - to criticise and to advocate. The
whole gamut of public affairs is the domain for fearless and critical comment and not least the
administration of justice. But the public function which belongs to the press makes it an obligation or
honour to exercise this function only with the fullest responsibility. Without such a lively sense of
responsibility, a free Press may readily become a powerful instrument of injustice. It should not and
may not attempt to influence Courts and the public by comments specially directed to a concrete case.
But this in no way curtails the fullest discussion of public issues generally. 104
"Fair criticism" is that which while criticising the act of a judge does not impute any ulterior motive to
him where the offending statements and the implication thereof have the effect of conveying that the
Vdge had act ed with bias and was partial to this otherwise it amounts to contempt. 105 Some broad
guidelines were given by KRISHNA IYER, J. in In re, Mulgaokar,106 how to balance the right of Press
and the administration of justice.
The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of
its jurisdiction. This Court will act with seriousness and severity where justice is jeopardized by a gross
and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the
judicial process. The Court is willing to ignore, by a majestic liberalism, trifling and venial offences -
dogs may bark, the caravan will pass. The Court will not be prompted to act as a result of an easy
irritability. Much rather, it shall take a noetic look at the conspectus of features and be guided by a
constellations of constitutional and other considerations when it chooses to use or desist from using
its power of contempt.
The second principle must be to harmonise the constitutional values of free criticism, the Fourth
Estate included, and the need for a fearless curial process and its presiding functionary, the judge. A
happy balance has to be struck, the benefit of the doubt being given generously against the Judge,
slurring over marginal deviations, but severely proving supremacy of the law over pugnacious, vicious,
unrepentant and malignant contemners, be they the powerful press, gang up of vested interests,
veteran columnists of Olympian establishmentarians. Not because the Judge, the human symbol of a
high value is personally armoured by a regal privilege but because 'be you - the contemner - ever so
high, the law - the people's expression of justice - is above you". Curial courage overpowers arrogant
might even as judicial benignity forgives errant or exaggerated critics. Indeed, to criticize the Judge
fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. For, it blesseth
him that gives him that takes. Where freedom of expression, fairly exercised, subserves public interest
in reasonable measure, public justice cannot gag it or manacle it, constitutionally speaking. A free
people are the ultimate guarantors of fearless justice. Such is the corner stone of our Constitution;
such is the touchstone of our Contempt Power, oriented on the confluence of free speech and fair
justice which is the scriptural essence of our Fundamental Law. Speaking of the social philosophy and
 257

philosophy of law in an integrated manner as applicable to contempt of court, there is no conceptual

polarity but a delicate balance, and judicial 'sapience' draws the line.
All laws relating to contempt of Court had, according to the provisions of Article 19(2) to be
"reasonable restrictions" on the exercise of the right of free speech. The Courts were given the power
- and, indeed, the responsibility - to harmonize conflicting aims, interests and values.
The third principle is to avoid confusion between personal protection of a libeled Judge and prevention
of obstruction of public justice and the community's confidence in that great process. The former is not
contempt, the later is, although overlapping spaces abound.
Because the law of contempt exists to protect public confidence in the administration of justice, the
offence will not be committed by attacks upon the personal reputation of individual Judges as such.
The fourth functional canon which channels discretionary exercise of the Contempt Power is that the
fourth estate which is an indispensable intermediary between the State and the people and necessary
instrumentality in strengthening the forces of democracy, should be given free play within responsible
limits even when the focus of its critical attention is the Court, including the highest Court.
The fifth normative guideline for the Judges to observe in this jurisdiction is not to be hypersensitive
even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by
dignified bearing, condescending indifference and repudiation by judicial rectitude.
The sixth consideration is that, after evaluating the totality of factors, if the Court considers the attack
on the Judge or Judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the
strong arm of the law must, in the name of public interest and public justice, strike a blow on him who
challenges the supremacy of the rule of law by fouling its source and stream.
Speaking generally, there are occasions when the right to comment may be of supreme value and the
law of contempt must adjust competing values and be modified, in its application by the requirements
of a free society and the shifting emphasis on paramount public interest in a given situation.
(A) A 'fair comment' is protected for the reason that the public has an interest in the administration of
justice.107 Message of Senior Advocate of long standing practice criticising judiciary and suggesting
corrective measures in Bar all for betterment of legal system is not contempt. It was held that the
message being an exposition of the advocate's ideology and written with an object to achieve
maintenance of purity in administration if justice is not contempt. 108 Though certain imputations against
the judge may also be libelous against the particular individual, they may at times amount to contempt
also depending upon the gravity of allegation.
Therefore, apart from the fact that a particular statement is libellous, it can constitute criminal
contempt if the imputation is such that the same is capable of lowering the authority of the court. The
gravity of the statement must be such as would scandalise the court. 1 When, therefore, any
reasonable argument is offered against any judicial decision as contrary to law or the public good, it
would enlighten not only the public but also the Judges themselves, so that they may be better
informed.2 It would also be conducive to the advancement of the science of law. If comment is based
on facts and is thus honestly made by a member of public motivated only by public interest, it would
easily pass the test of fair comment.3 But attributing impropriety or lack of integrity, partiality or
extraneous consideration to a court exceeds the bounds of criticism. 4
Fair comment and criticism must confine itself to act ual facts. It is permissible for a newspaper to
express its opinion on the facts and the law even if it is adverse to court's opinion. While even severe
criticism in this regard may be tolerated, it is not permissible to indulge in scurrilous or vicious attack
on the judge or charge him with corruption, partiality, prejudice or incompetency. 5
Allegation of thwarted justice, flouting law, denigrating the face of judiciary, ridicule, the sanctity of the
mandatory provisions and established dictates of law against the judge is beyond permissible limits of
fair criticism and has the tendency to scandalise the court. 6 Fair criticism of judgment and orders of the
court within the parameters of law is welcome in a democratic system. 7 It is a gross contempt to
 258

impute the judges of the highest Court of Justice acted on extraneous consideration in deciding a
case.8

4B)  On the other hand, if the criticism exceeds the limits of fair comment and
tends to scandalise the administration of justice or undermine the confidence which the
public rightly repose in the courts of justice or is likely to interfere with the due
administration of justice, the Press would lose its freedom to criticise the judgment
because such criticism has ceased to be for the public good. 9
An 'irrational and abusive' comment on a judgment cannot be said to be a 'fair comment.' 10 On the
other hand, where a judgment took one of two views possible in a case, and a newspaper criticised
the view taken, it would not justify a proceeding in contempt against the newspaper. 11

24c)  Everyone is entitled to criticise the judgment of a Court, but none can attack
the judge who delivered that judgment, as that would deingrate the judicial institution. 12
II. When the Court sits in camera, the law, in India, prior to the enactment of the Contempt of Courts
Act , 1971, was that it would constitute a contempt of Court to publish a report of the proceedings at
such sitting (which the Press might have obtained somehow from somebody who was allowed to be
present), excepting, the formal order of the Court which was considered apart from the proceedings.
This rule of common law has been altered by the Contempt of Courts Act , 1971 (s. 7); according to
which--

33a)  Publication of the order (or a fair and accurate summary thereof) made at a
sitting in chambers or in camera would not be contempt unless the Court expressly
prohibits its publication on grounds of public policy, public order, security of State,
nondisclosure of information relating to any secret process, discovery or invention; or in
exercise of any other power vested in the Court.
34b)  Publication of proceedings of the Court at a sitting in chambers or in camera
would be contempt:
5. if it not a fair and accurate report;
5. if the Court has expressly prohibited its publication on grounds of public
policy or in exercise of any power vested in it;
4. if the Court has ordered sitting in private on grounds of public order or
security of State;
3. if it gives information relating to a secret process, discovery or invention;
3. if such publication would be contrary to the provisions of any enactment for
the time being in force.

In order to save the press and the public from the uncertainty due to lack of any statutory definition of
the exceptions to the rule of public hearing, the present section enumerates the four exceptional cases
in Cls. (a)-(d) of sub-sec. (1) and lays down that in any case not covered by these clauses, there will
he no liability for contempt of court if in camera proceedings are published, provided that it is a 'fair
and accurate' report of such proceeding.13
Injunction Against the Press
In India, the traditional test for the grant or refusal of an injunction pendente lite is the 'balance of
convenience'.14 In applying this test, the Supreme Court has referred 15 to the 'clear and present danger'
or 'the imminent and present danger' test 'enunciated in some American decisions. The American test
can be reconciled with the equitable principles of 'irreparable injury' and 'balance of convenience'
inasmuch as where there is no likelihood of imminent danger, it cannot be said that either of the
equitable considerations exists in favour of the person seeking the injunction.
Right to privacy is implicit in the right to life and liberty guaranteed to the citizens under Art. 21. It is a
right to be let alone. A citizen has a right to safeguard privacy of his own, his family, marriage,
 259

procreation, motherhood, childbearing and education among other matters. None can publish anything
concerning the above matters without his consent - whether truthful or otherwise and whether
landatory or otherwise. If he does so, he would be violating the right to privacy of the person
concerned and would be liable for damages. Position may, however, be different, if a person
voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. In cases where
the person's privacy is likely to be affected and who has not voluntarily thrusts himself into a
controversy, an injunction can be granted from publishing anything regarding the private life. But in
cases where the aforesaid aspects are part of public records including court records, the same could
be published and no injunction could be granted. But even in such cases, an exception is to be carved
out, i.e., regarding a female who is the victim of a sexual assault, kidnap, abduction or a like offence,
should not be further subjected to the indignity of her name and the incident being publicised in press
or media.
In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy for action for
damages is simply not available with respect to their act s and conduct relevant to the discharge of
their official duties. This is so even where the publication is based upon facts and statements which
are not true, unless the official establishes that the publication was made with reckless disregard for
the truth and in such cases no injunction could be granted. But in regard to matters not relevant to the
discharge of his duties, his right to privacy is to be protected.
Persons apprehending defamation have no right to impose prior restraint of publication and the
remedy of such person is after publication, but repeatedly publishing defamatory matter may be
restrained because Art. 19(1)(a) does not give a free hand to goan publishing defamatory matters. 16 It
was further held therein that right to speech cannot be exercised recklessly and in utter disregard to
other person honour and reputation. The court also reminded that freedom of speech is a right with a
corresponding duty to the other and has a natural limitation, i.e., the right is guaranteed to all to
citizens alike.
The protective cover of press freedom must not be exercised for wrong doings and if a newspaper
publishes what is mischievously false, illegal and abuse of liberty, it should be punished in a court of
law.17
The Government, local authority and other organs and institutions exercising Government power,
cannot maintain a suit for damages and hence no injunction could be granted. 18 Likewise, in view of
the social object of preventing social victimisation or ostracism of the victim of sexual offence for which
s. 228 -A of the Indian Penal Code has been enacted; the name of the victim shall not be printed or
published.19
Tax on Newspapers
Government may impose "generally" applicable regulations upon the press in common with other
citizens that may be burdensome. But if the Governments subject the press or any segment of the
press to unique treatment that is based on the contents of speech or that "threatens to suppress the
expression of particular ideas or viewpoints", the regulations are constitutionally 'suspect'. Such
regulations are valid 'only' when the Government proves that they are necessary to achieve an
overriding Governmental interest.
In Minneapolis Star and Tribunal Co. v. Minnesota Commissioner of Revenue ,20 the Court said: "A
power to tax differently as opposed to a power to tax generally, gives a government a powerful
weapon against taxpayer selected. When the State imposes tax generally applicable tax, there is little
cause of concern. We need not fear that a government will destroy a selected group of taxpayers by
burdensome taxation if it must impose the same burden on the rest of the constituency. When the
State singles out the press, though the political constraints that prevent a Legislature from passing
'crippling' taxes of general applicability are weakened, the threat of burdensome taxes becomes acute.
That threat can operate as effectively as a censor to check critical comment by the press, undercutting
the important restraint on government. Differential treatment, unless justified by some special
characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of
expression and such a goal is presumptively unconstitutional. Differential taxation of the press, then,
places such a burden on the interest protected by the First Amendment that we cannot countenance
 260

such a treatment unless the State asserts a counterbalancing interest of compelling importance that it
cannot achieve without differential taxation". Justification for different treatment on the ground of
raising revenue was not accepted as good ground for differential treatment.
In Arkansas Writers' Project Inc. v. Ragland ,21 the case involves the validity of Arkansas exemption its
sales tax of all newspapers and "religious professional, trade and sports journal", but no other
magazine. The court struck down the law because a magazine's tax status depends entirely on its
content. In another case, the court voided a New York statute that confiscated any income earned by a
person "accused or convicted of a crime" from books or other publication concerning the crime and
provided that such proceeds be held in trust to satisfy civil judgment obtained against the accused or
convicted criminal by his victim. A statute is presumptively inconsistent with First Amendment if it
imposes a financial burden on speaker because of the content of their speech. While New York's
interest facilitating compensation to crime victim was a compelling interest, New York had little if any
interest in limiting such compensation to the proceeds of the wrongdoer's speech about crime. But in
Leathers v. Medlock ,22 the decision in Arkansas Writers' Project Inc. case was distinguished where the
Court held: "The danger from a tax scheme that targets a small number of speakers is censorship, a
tax on small number of speakers runs the risk of affecting only a limited range of views. The risk is
similar to that from content based regulation; it will distort the market ideas".
U.S.A.
(A) U.S. A. --In the United States, it has been held that the freedom of the press guaranteed by the
First Amendment to the Constitution implies immunity not only from censorship but also from any
other form of previous restraint.23"Thus, a statute imposing a license tax for the privilege of engaging in
the business of publishing advertisements in any newspaper having circulation above a fixed volume,
has been invalidated on the ground that it abridges the freedom of the press in contravention of the
'due process' clause."24 As to the nature of the tax, the Court observed that "its direct tendency was to
restrict circulation" and that "if it were increased to a high degree, it well might result in destroying both
advertising and circulation".25
The case26 illustrates the utility and effectiveness of the guarantee of freedom of the press in the
American Constitution, as compared with the situation in England, where, for historical reasons
already pointed out freedom of the press has been un- derstood to mean only absence of censorship
or licensing. In this case,27 giving a wider meaning to the guarantee in the American Constitution, the
Supreme Court observed--
"It is impossible to concede that by the words 'freedom of the press' the framers of the Amendment
intended to adopt merely the narrow view then reflected by the law of England that such freedom
consisted only in immunity from previous censorship; for this abuse had then permanently
disappeared from English practice. It is equally impossible to believe that it was not intended to bring
within the reach of these words such modes of restraint as were embodied in the two forms of taxation
already described (i.e., a tax on newspapers and a tax on advertisements)...it is evident...that by the
First Amendment it was meant to preclude the national government, and by the Fourteenth
Amendment to preclude the States, from adopting any form of previous restraint upon printed
publications, or their circulation, including that which had heretofore been effected by these two well-
known and odious methods.
...It is not intended...to suggest that the owners of newspapers are immune from any of the ordinary
forms of taxation for support of the government. But this is not an ordinary form of tax...The tax here
involved is bad not because it takes money from the pocket of the appellees...It is bad because, in the
light (if its history and of its present setting, it is seen to be a deliberate and calculated device in the
guise of a tax to limit the circulation of information to which the public is entitled in virtue of the
constitutional guarantees...It is not measured or limited by the volume of advertisements. It is
measured alone by the extent of the circulation of the publication in which the advertisements are
carried, with the plain purpose of penalising the publishers and curtailing the circulation of a selected
group of newspapers".28
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Freedom of expression may be affected not only by imposing a discriminatory 29 tax but also by
denying exemption from a tax on the ground of a person's engaging in certain forms of speech and
expression.
Though taxes deliberately calculated to restrict the freedom of the press are unconstitutional, the
press is not in any better position than individuals as to the liability to pay non-discriminatory taxes on
the business of printing and publication.30
It would not be unconstitutional to impose a licence fee for "registration of a newspaper, provided it is
not so manifestly excessive or of such a character as to lead to the conclusion that it had been
enacted for "same purpose other than that of raising revenue". 31
India
(B) India.--Though the freedom of the Press is not specifically guaranteed, as in the U.S.A., and
though it has not yet been authoritatively settled whether a tax directed against the Press as such
would be struck down as an 'unreasonable restriction' under Art. 19(2), the observations of the
Supreme Court, speaking through BHAGWATI J, in Express Newspapers v. Union of India ,32 suggest
that the Court would not tolerate a tax directed against the freedom of publication or circulation and
that an enactment of the nature involved in Grosjean's case33 would not be differently viewed in India.
In Indian Express Newspaper's case (supra), it was held that tax is leviable on newspaper industry.
But when taxes are levied not for raising revenue but for killing the business, it is a legitimate ground
for complaint. In that case, the Court quoted with approval the following statement in Corpus Juris
Secundum (Vol. 16) 213(13) Taxing and Licensing:
The constitutional guarantees of freedom of speech and of the press are subject to the proper
exercise of Government's power of taxation and reasonable licence fee may be imposed on trade or
occupations concerned with the dissemination of literature or ideas. As a general rule, the
constitutional guarantees of freedom of speech and of the Press are subject to the proper exercise of
Government's power of taxation, so that the imposition of uniform and non-discriminatory taxes are
not invalid as applied to persons or organisations engaged in the dissemination of ideas through the
publication, distribution of writing. The guarantee of freedom of Press does not forbid the taxation of
money or property employed in the publishing business, or the imposition of reasonable licence and
licence fee on trade or occupation concerned with the dissemination of literature or ideas. It was
further observed in that case that "Taxation is the legal capacity of sovereignty or one of its
governmental agents to exact or impose a charge upon persons or their property for the support of the
government and for payment of any other public purposes which it may constitutionally carry out".
Following the observations in Grosjeans case,34 BHAGWATI J. said--
"The Press is not immune from the ordinary forms of taxation for support of the Government nor from
the application of the general laws relating to industrial relations ....While, therefore, no such immunity
from the general laws can he claimed by the Press it would certainly not be legitimate to subject the
Press to laws which take away or abridge the freedom of speech and expression or which would
curtail circulation.... or would undermine its independence by driving it to seek Government aid. Laws
which single out the Press for laying upon it excessive and prohibitive burdens which would restrict the
circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an
alternative media, prevent newspapers from being started and ultimately drive the Press to seek
Government aid in order to survive, would therefore be struck down as unconstitutional". 35
Subsequent to the foregoing observations at Art. 19(1)(c) a three-judge Bench of the Supreme Court 36
has held that--
The arbitrary imposition of customs duty on newprint used by newspapers or the arbitrary action of the
Government, without taking into account the relevant circumstances, in the matter of granting,
modifying or withdrawing exemptions from duty, would offend against Arts. 14 and 19(l)(a) of the
Constitution of India (Paras. 76,80).37
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The three-judge Bench of the Supreme Court38 has, in fact, made the American precedents more
explicit, in holding that a tax on a newspaper will be unconstitutional not only where the newspaper
industry has been singled out for the purpose of taxation but also where the quantum of taxation is so
heavy, that it would constitute an unreasonable burden upon the production and circulation of the
newspaper.
In the words of VENKATARAMAIAH, J., for the Bench39 --
"While there can be no tax on the right to exercise freedom of expression, tax is leviable on
profession...and industry. Hence, tax is leviable on newspaper industry. But when such tax
transgresses the field of freedom of expression and stifles that freedom, it becomes unconstitutional.
As long as it is within reasonable limits ...... it will not be contravening the limitationsof Art. 19(2).
[Para. 63].40
"In the case of ordinary taxing statutes, the laws may be questioned only if they are either 'openly
confiscatory, or a colourable device to confiscate. On the other hand, in the case of a tax on a
newsprint, it may be sufficient to show a distinct and noticeable burdensomeness clearly and directly
attributable to the tax". [Para. 67].41
The Court also said: "What may however have to be observed in levying a tax on newspaper industry
is that it should not be an overburden on newspapers which constitute the Fourth Estate of the
country. Nor should it single out newspaper industry for harsh treatment. A wise administrator should
realise the imposition of a tax like the custom duty on newsprint is an imposition on knowledge and
would virtually amount to a burden on a man for being literate".
The fundamental principle involved was the "people's right to know". Freedom of speech and
expression should, therefore, receive a generous support from all those who believe in the
participation of the people in the administration. The court noted that with a view to checking
malpractices interfering with the free flow of information, democratic constitution of the world over
make provisions guaranteeing freedom of speech and expression and laying down the limits of
interference therewith. It is, therefore, the primary duty of all rational courts to uphold this freedom and
invalidate all laws or administrative act ion which interferes with this freedom, contrary to the
constitutional mandate.
The court pointed out that the imposition of customs duty on newsprint amounts to imposition of tax on
knowledge and virtually amounts to a burden imposed on a man for being literate and for being
conscious of his duty as a citizen to inform himself of the world around him. It is on account of special
interest which society has in the freedom of speech and expression that the approach of the
Government must be more cautious while levying taxes on matters concerning newspaper industry
than levying taxes on other matters.
A tax will be discriminatory against the press, if instead of imposing the burden on selected
newspapers, the State grants exemption to a group of selected newspapers on consideration other
than that of raising revenue, e.g., promoting the circulation of small newspapers or to eliminate unfair
competition among newspapers or to prevent the growth of monopolies. 42
In Minneapolis Star & Tribune Co. v. Minnesota Commission of Revenue ,43 the U.S. Supreme Court
held that imposition of sales-tax on the sale of newspapers, books and periodicals at the rate of 6%
whereas in the case of sale of other goods at the rate of 4% was ultra vires the freedom of press.
Minnesota imposed sales-tax on detailed sales to avoide double taxation. The sale of components to
be used in the production of goods that would themselves be sold at retails was exempted from the
sales-tax. As a result of the imposition of sales-tax, the use in such publication of materials and
newspapers became the only components of goods to be sold in detail subject to the use of taxes. In
1974, Minnesota amended the used tax to exempt $ 1,00,000 worth of ink and papers consumed by
publication in any calendar year. After enactment of exemption, eleven publishers producing fourteen
of the 388 newspapers in Minnesota incurred tax liability. Appellant was one of them and because of
the size of the publication, it had to pay nearly 2/3 of the total revenue raised by tax. It was held that
the Minnesota offered no adequate justification for the special treatment of the newspaper and ink and
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paper tax violated First Amendment not only because it singles out the Press, but also targets a small
group of newspapers.
In Arkanas Writers Project v. Ragland ,44 the US Supreme Court invalidated the State statute that
imposed a sales-tax on General Interest magazine, but exempted religious, professional, trade and
sports journals. It was held that selective taxes of the Press either singling out the Press as a whole or
singling out the individual members of the Press posed a particular danger of Government abuse.
In American Jurisprudence45 it is said: "Speech can be effectively limited by the exercise of taxing
power. Where the constitutional right to speak is sought to be deterred by a State's general taxing
programme, "due process" demands that the speech be unencumbered until the State comes forward
with sufficient proof to justify its inhibition. But constitutional guarantees are not violated by a Statute
the controlling purpose of which is to raise revenue to help defray the current expenses of State
Government and State obligations and which shows no hostility to the press nor exhibits any purpose
or design to restrain the press. Referred to in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union
of India .46
In Associated Newspaper Co. v. Fleming ,47 a company publishing newspapers employed many
journalists for gathering news item. To establish cordial relationship with people likely to give
information, the company used to have a "get together". The company claimed deduction of the
expenses in arriving at its profits for income-tax purposes contending that expenses was incurred "in
the provision of newspapers" which was its trade to provide. The House of Lords did not accept the
contention and held that the company was not entitled to deduct the expenses as its trade was the
provision of newspapers and not of business entertainment.
In Sakal Papers v. UOI ,48 the Government fixed a minimum price for the number of pages a
newspaper was entitled to publish under the Newspaper (Price and Page) Act, 1956. The Act also
authorised the Government to curtail the space available in a newspaper for advertisements. It was
held that both these provisions would affect the circulation of the bigger dailies by compelling them
either to raise the price or reduce the price.
There was no denying the fact that the object and effect of the Act and the Order issued thereunder
was "to prevent unfair competition" between the bigger and smaller dailies as stated in the Act itself;
this the Government sought to do by benefiting smaller dailies, by curtailing the bigger ones. It was
further held that though the prevention of unfair competition might be justified as an economic
measure for the regulation of business under Art. 19(1)(g) read with clause (6) thereof, this could not
be done by reducing the circulation of a class of newspaper which was an unreasonable restriction on
the freedom of press under Art. 19(1)(a). The following observation made by the court in this
connection should be borne in mind:
"...even if the end is desirable and permissible, the means employed must not transgress the limits
laid down by the Constitution".
In short, Art. 19(1)(a) could not be invoked for securing an object which might be laudable under Art.
19(6).
In Bennett Coleman v. UOI ,49 the Government policy under challenge was the Newsprint Control
Order which controlled the distribution of newsprint, the fodder of all newspapers which could at that
time be supplied by the Government. In this order, Government "treated unequals as equals" by fixing
maximum number of pages which a newspaper would be allowed to print and the volume of supply of
newsprint was subject to that fixed volume of publication. The obvious effect of this would be to
compel the bigger dailies to reduce their pages, their space for the advertisement and thus reduce
their circulation. Though the Control Order did not expressly say so, the Government in its stand
before the court clearly pleaded in defence that "the Newsprint policy was to be in aid of allowing
small newspapers to grow and to prevent monopolistic combination of big newspapers. Applying the
principle in Sakal Papers case (supra), the court had little difficulty in holding that this Control Order
violated Art. 19(2) and this could not be done in the name of prevention of monopolistic combination or
promotion of small newspapers, though commercial regulation might be permissible under Art. 19(6).
The Court held that the fixation of the maximum page level for the purpose regulating supply of
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newsprint amounted to "treating unequals as equals" and discrimination against bigger dailies, even
though it might be beneficial to new ones or smaller ones. The Court also said: "The Govt. should not
determine which newspaper should grow in page and circulation and which newspaper should grow
only in circulation and not in pages".
Government should be more cautious while levying taxes on matters concerning the newspaper
industry than taxing other matters because of the four-fold social purpose served by freedom of press
viz., (a) that it helps an individual to attain self-fulfilment; and (b) to strengthen his capacity in
participating in decision-making; (c) it assists in the discovery of truth; (d) it provides a mechanism to
establish a balance between stability and social changes. 50
Other interferences with the Freedom of the Press
Both in the U.S.A. and in India, it has been established by this time that freedom of the press does not
consist merely in the freedom from pre-censorship as was supposed in the days of Milton, but any
interference with the Press as a medium of expression,--direct or indirect,--would be struck down by
the Court unless its reasonableness with reference to a constitutionally permissible ground of
restriction (e.g. defamation)51 can be demonstrated. Though the case-law in the U.S.A. has assumed it
striking dimension, the Indian Supreme Court is also taking rapid strides, of late.
I. Re. the Matter to be Published
Subject to the law of crimes, the Press has the freedom to print or not to print any matter it likes, and
the State has no power either to prohibit what the Press may publish or to command what it prefers to
withhold.52
This freedom extends to news,53 editorial content; discussion of Governmental affairs, the conduct of
Governmental agencies; the structures and forms of Government, the manner in which Government is
or should be operated.54
It follows that every newspaper has the right to express its own political, social and economic views,
limited only by its editional judgment.55 It was held in that case: "It would be anomalous to hold, in the
name of promoting the constitutional guarantee of free expression, that the day to day editorial
decisions of broadcast licensees are subject to the kind of restraints by respondent. To do so in the
name of First Amendment would be a contradiction. Journalists' discretion would in many ways be lost
to the rigid limitation that the First Amendment imposes on Govt. Application to such standards to
broadcast licensees would be antithetical to the very ideal of vigorous, challenging debate on issues of
public interest". Commenting on the above decision, learned authors on Constitutional Law have said:
"Note that the result maximises the journalists' freedom of broadcasters, who need not account to a
court or government agency for their editorial decision. But it arguably does so at the expense of the
freedom of those wishing to present editorial advertisements, who may be prevented from securing
the forum".56
(b) Conversely, Government cannot compel a newspaper to publish which it would not otherwise print,
however desirable, the publication of such matter might be, 57e.g., to require that it must offer to every
political candidate a right to equal space to reply to criticism against his candidature.58 In this case,59
CHIEF JUSTICE BURGER, speaking for the Court observed--
"Even if a newspaper would face no additional costs to comply with a compulsory access law and
would not be forced to forgo publication of news or opinion by the inclusion of a reply (of the
candidate), the Florida statute fails to clear the barriers of the First Amendment because of its
intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for
news, comment and advertising. The choice of material to go into a newspaper, and the decisions
made as to limitations of size and content of the paper, and treatment of public issues and public
officials--whether fair or unfair--constitute the exercise of editorial control and judgement." 60
It (Freedom of Press) means that there is "no censorship". No restraint should be placed on the press
as to "what they should publish". Not by a "licensing" system. Not by "executive direction". Not by
Court "injunction". It means that the press is to be free from what Blackstone calls "previous restraints"
 265

or what our friends in the United States...call "prior restraint". The press is not to be restrained in
advance from publishing whatever it thinks right to publish". 61
But in Red Lion Broadcasting Co. v. Federal Communication Commission ,62 the Court unanimously
upheld the Commission's "fairness doctrine" which required broadcasters to provide balanced
coverage of controversial issues and to permit victim of personal attacks a right to reply. The contrast
between the two cases (i.e., Miami's case and Red Lion case) illustrates the court's view that the First
Amendment permits greater control by Government over the broadcast media than it does over
newspapers, magazines and books. The reason for different treatment was because "Broadcast
frequencies constituted a scarce resource whose use could be regulated and rationalised only by
Govt. Without Govt. control, the medium would be of little use because of the cacophony of competing
voices, none of which could be clearly and predictably heard". 63
In Turner Broadcasting System v. FCC 64 and in Turner Broadcasting System v. FCC ,65 the court
upheld a federal law requiring private owned cable transmission system to carry free of charge local
broadcast television. The court concluded that the "must carry" provisions were content-neutral and no
more burdensome than necessary to accomplish the Government's significant objective, unrelated to
the suppression of ideas of protecting the economic viability of over the air television broadcasters.
II. Re. the Volume of Newspaper and its Circulation

7.  Any arbitrary or excessive restriction on the supply of newsprint which

reduces the advertisement revenue of newspaper or compels it to raise its price, thereby
affecting the volume of its circulation, would be an unreasonable restriction under Art.
19(2) [paras 88-9, 101].66
8.  For the same reason, discriminatory allotment of Government
advertisements to different newspapers of the same category, as would reduce the
advertisement revenue of an establishment which is discriminated against, would be
violative of Art. 14 as well as Art. 19(1)(a).67
Advertisements in newspapers play an important role in the matter of revenue of the
newspapers and have a direct nexus with its circulation. For the purpose of meeting the
cost of the newsprint as also for meeting other financial liabilities which include the
liability to pay wages, allowances and gratuity, etc. to working journalists as also liability
to pay a reasonable profit to the shareholders vis--vis making the newspapers available
to the readers at a price at which they can afford to purchase it, the publishers have no
other option but to collect more funds by publishing commercial and other
advertisements in the newspaper. Where the Government issued executive orders under
Art. 162 divesting deduction of an amount of 5% from the bills payable to newspapers
having circulation of more than 25,000 copies for publication of Government
advertisements for implementation of its Pension-cum-Social Security Scheme for full
time journalists with an option to newspapers not to accept it if it appears onerous, i.e.,
option is on "take it - or leave it basis" was held to be bad. It was held that bargaining
power of the State and the newspapers in matters of release of advertisements is
unequal and the condition imposed was invalid under Art. 14, i.e., arbitrary.68 It was held
therein that advertisements in a newspaper have a direct nexus with its circulation.
Reduction of space for advertisement
6.
15. Right to publish advertisements is not a part of the freedom of expression,
but if a restraint on advertisements curtails circulation, Art. 19(1)(a) would be
violated.69
15. A reduction of the space for advertisements not only reduces the earnings of
a newspaper but also reduces its circulation and its scope for dissemination of
news and views and thus violates Art. 19(1)(a).70 It was held in that case that since
advertisements are the main source of income and means of sustenance of a
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modern newspaper, any deprivation of such source of income would constitute an

indirect interference with the freedom of press.71
To get rid of criticism, laws are enacted. Enactment of laws providing for
precensorship seizures, interference with the transit of newspapers and demanding
security deposit, imposition of restriction on the price of newspapers and the area that
can be denoted for advertisements, "withholding Government advertisements", increase
postal rates, imposition of taxes on newsprint, canalisation of import of newsprint with
the object of making it unjustly costlier, etc. are some of the ways and means the
Government may try to interfere with freedom of Press. It was further observed that
"while newspapers which are commercial enterprises expect to sustain themselves by
sales and advertising, they are not viable on this traditional basis. Capital and profits
from other media and from business in general are often injected into the newspaper
industry. In many cases, the financing or atleast the deficiencies are covered by
Government or political bodies. Assistance from the State has taken various forms
including tax concessions not enjoyed by other industries, reduced postal and telephone
rates guaranteed governmental advertising and subsidies to the price of newsprint.72
Following the above decision, Gauhati High Court held that if the assistance from the
Government is curtailed, it may be that the newspaper will not be able to withstand the
competition and in the long run it may die down, and such an action of the Government
would directly affect freedom of Press.73 In that case, it was held that where guidelines
are issued by the Government regarding the manner of publication of advertisement,
and the same are violated by the newspaper, the Government is entitled to remove the
name of the newspaper from the approved list, after giving an opportunity to show
cause.
The Government's power to distribute the largesse through issue of advertisement
should not be arbitrary or discriminatory to muzzle a section of Press which criticises its
policies and programmes.74
3.  The restrictions which can be legitimately imposed on the freedom of the
press are exhaustively specified in Art. 19(2). Government has no general power to
regulate a newspaper apart from Art. 19(2).75
But in the case of a newspaper which is not following the guidelines, the State is entitled
to remove its name of the paper from approved list of papers entitled to advertisements. 76
At the same time, a Government order or memorandum alloting more advertisements to
only one daily newspaper leaving the other dailies in the same class is violation of Arts.
19(1)(a) and 14.77 It is also held that blacklisting of commercial firms or Government firms
without hearing offends natural justice.78
3.  Freedom of expression cannot be restricted for the purpose of restricting the
commercial act ivities of newspapers,79 such as advertisements.--
If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens,
the circulation will inevitably go down. This would be no remote, but a direct consequence of
curtailment of advertisements...The advertisements revenue of a newspaper is proportionate to its
circulation. Thus the higher the circulation of a newspaper the large would be its advertisement
revenue. So if a newspaper with a high circulation were to raise its price, its circulation would go down
and this in turn would bring down also the advertisement revenue. That would force the newspaper
either to close down or to raise its price. Raising the price further would affect the circulation still more
and thus a vicous cycle would set in which would ultimately end in the closure of the newspaper. If, on
the other hand, the space for advertisement is reduced the earnings of a newspaper would go down
and it would either have to run at a loss or close down or raise its price. 80
II. Control Over Advertisements
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DD Basu Commentary on the Constitution of India, Vol 1-4, 9e 2015/Volume 4/PART III FUNDAMENTAL
RIGHTS/Article 19 (Contd.) 2 of 4

INDIA
Apart from any control over the news and views to be published in a newspaper or journal,
Government may seek to restrict its commercial activities, such as publishing advertisements. Even
such lateral control may violate the freedom of expression of the newspaper under Art. 19(l)(a), in the
following circumstances:
Denial of Government advertisements
(b) Government is under no obligation to publish its advertisements in any newspaper at all. No
newspaper, therefore, has any vested right to compel the State to publish in it Government
advertisement.81
If, However, Government does publish any advertisement in newspapers, it must do it in terms of a
definite policy or standard known to the public; and if the Government does it arbitrarily, to
discriminate between different newspapers, of the same category 82its act ion will offend not only Art. 14
but also Art. 19(1)(a).83
In Sushil Chaudhary v. State of Tripura ,84 a policy decision was taken by the State Government to allot
30% of the Government advertisement to a category of newspapers. The Government allotted 24% of
the Government advertisement to only one daily and the remaining 6% of the total advertisement was
allotted to other dailies belonging to the same class. It was found that the allotment was discriminatory
and also violative of freedom of speech and expression under Art. 19(1)(a).
In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd .,85 it was held that "publication of
advertisement" which is a "commercial speech" is also protected under Art. 19(1)(a) and the said right
cannot be denied to the petitioner on the ground that it is prohibited under Indian Telegraph Rules
(Rules 458 and 459). It was held that rule prohibits only publication of list of telephone subscribers and
not publication of advertisement. It was held that newspaper industry obtains 60 to 80% of its revenue
from advertising and advertising pays a large portion of the costs of supplying the public with
newspaper. For a democratic press, the advertising "subsidy" is crucial. Without advertising, the
resources available for expenditure on the 'news' would decline, which may lead to an erosion of
quality and quantity. The 'cost' of the 'news' to public would increase, thereby 'restricting' the
'democratic' availability. It was observed that advertising is a 'commercial speech' and any restraint or
curtailment of advertisement would affect the fundamental right under Art. 19(1)(a).
Advertisement is a commercial speech which has two facets - (1) Advertising which is no more than a
commercial transaction, nonetheless disseminates information regarding the product advertised.
Public at large stands benefited by the information made available through advertisement. In a
democratic economy, free flow of commercial information is indispensable. Therefore, any curtailment
on advertisement would affect the Fundamental Right under Art. 19(1)(a) on the aspect of
propagation, publication and circulation. (2) The public at large has a right to receive commercial
information. Art. 19(1)(a) protects the right of an individual to listen, read and receive the said speech.
The protection of Art. 19(1)(a) is available to the speaker as well as the recipient of the speech. In
Tata Press case (supra),86 the Supreme Court accepted as valid the printing of yellow pages by Tata
Press. It was held that printing of a telephone directory is to be done exclusively by the Telephone
Department as part of its service to telephone subscribers. But yellow pages only contain commercial
advertisements and Art. 19(1)(a) guarantees freedom to publish the same.

1II.  Control Over Price

The fixation of a minimum price for the number of pages which a newspaper is entitled to
publish deters a class of its readers from purchasing such newspapers, on account of
high price, and thus curtails its circulation. The right to publish a supplement, when
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subjected to the uncharted discretion of the Government, also affects the independence
of the Press.87
The right of a newspaper to publish its news and views in as many pages it likes is made
to depend upon the price charged to the readers, by Government fixing the maximum
number of pages for the particular price charged, it operates against the bigger
newspapers by making the price so high for a class of its readers as is likely to deter it
from purchasing such newspaper. It is aimed at cutting down their circulation. 88
Parliament enacted Newspaper (Price Control) Act, 1972, to provide for the control, in
the interest of the general public, of the prices of newspapers with a view to ensuring
that newspapers continue to function in the prevailing condition, "as effective mass
communication media" and for "securing their availability at fair prices". The Act was a
temporary legislation, and has ceased to be effective at present.
Earlier, Parliament had enacted the Newspaper (Price and Page) Act, 1956 (Act 45 of
1956). The Act was passed to provide for the regulation of the prices charged for
newspaper in relation to their pages and matter connected therewith for the purpose of
preventing unfair competition among newspapers so that newspapers have full
opportunities of freedom of expression. This Act was annulled by the Supreme Court in
Sakal Papers v. UOI ,89on the ground that it interfered with freedom of press. The Act
was held to have been framed to prevent unfair competition. The Central Government
had issued Daily Newspaper (Price and Page) Order, 1960 which was turned by the
Supreme Court.
1V.  Control Over Size
Any Government action which compels a newspaper to reduce its size, would be a
restriction upon its freedom to publish under Art. 19(1)(a), 90e.g., the fixation of a
maximum page-level;91 or the reduction of the space for advertisement. 92 In Bennett
Coleman's case,93 the Court observed--
"Requiring newspapers to reduce their sizes would be compelling them to restrict the
dissemination of news and views and thus directly affecting their right under Art. 19(1)
(a). But it is said that the object could be achieved by reducing the advertisements. That
is to say, the newspapers would be able to devote the same space which they are
devoting today to the publication of news and views by reducing to the necessary extent
the space allotted to advertisements... It is true that many newspapers do devote very
large areas to advertisement. But then the Act is intended to apply, also to newspapers
which may carry no or very few advertisements. Again, after the commencement of the
Act and the coming into force of the Order a newspaper which has a right to publish any
number of pages for carrying its news and views will be restrained form doing so except
upon the condition that it raises the selling price as provided in the schedule to the
Order. This would be the direct and immediate effect of the Order and as such would be
violative of the right to newspapers guaranteed by Art. 19(l)(a)."
1.  Control through Supply of Government--controlled Newsprint
Another way in which Government can compel a newspaper to reduce its size or to raise its price is to
reduce the supply of Government-controlled newsprint on which the newspaper is published. 94
Government has the power to import newspaper and to control its distribution, and no Court can
adjudicate on the policy of distribution adopted by the Government unless it is mala fide or infringes
the freedom of expression of the Press95, or the distribution is not fair and equitable.96
At the time of allotment, Government must take into consideration the interests of all newspapers---
big, medium or small.97
Government may help or protect newly started newspapers but not at the expense of the existing
newspapers; nor can it help small newspapers at the expense of the bigger ones. The freedom of
expression is abridged on the ground of conferring benefit upon the public or any section thereof. 98
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The Court explained further that the contention of Government that they were intended (i.e., supply of
newsprint) to eliminate unfair competition between bigger and smaller newspapers and to promote the
growth of the latter could not be accepted as a valid restriction under Art. 19(2) which enumerates the
permissible grounds of restriction. Elimination of unfair competition might be in public interest, was not
one of the grounds of restriction specified in clause (2). It was a permissible ground under Art. 19(6)
and the commercial activities of a newspaper could be restricted "in the interests of general public".
But in restricting the commercial act ivities of a newspaper, the State was not competent to
substantially abridge or take away the freedom of press which was governed by clause (2) and not
clause (6).
Nor is it open to the Government to utilise its power of distribution of newsprint to control newspapers,
by imposing any conditions operating after the grant of the quota or allocation of the supply. The
majority held that newsprint is not steel and the Government would not be entitled to impose any
restriction as to utilization, subsequent to allotment because, newsprint was the medium of expression
and the newspaper was entitled to utilise its quota in any manner it liked and the curb on its size was a
direct curtailment of its circulation.
"Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from
publishing is not. Freedom of the press from governmental interference does not sanction repression
of that freedom by private interests. The First Amendment does not have the slightest support for the
contention that a combination to restrain trade in news and views has any constitutional immunity". 99 In
that case, American Supreme Court upheld the application of anti-monopoly legislation of the press
because "freedom to publish means freedom for all and not for some".
In short, curtailment of the space allocated for advertisement or limiting the number of subscribers of a
newspaper would reduce the volume of its circulation. Such restriction cannot be justified on any
ground outside those enumerated in Cl. (2) of Art. 19, such as suppressing unfair practices by
newspapers,100 or prevention of monopolies101, or conferring benefit upon the public or any section
thereof,102 or helping small newspapers.103
Broadly speaking, any measure adopted by the Government to undermine its independence by driving
it to seek Government aid would be violative of the freedom of expression of the press. 104
Special privilege, if any, as to non-disclosure of source of information
U.K.

8.  In the U.K., a question assumed importance in the year 1963 as to whether
a journalist had any special privilege, under the law, not to disclose the source of his
information relating to any matter, analogous to that which exists in the case of
confidential relationship between attorney and client, husband and wife. The answer was
given in the negative.105
It was held106 that the well-recognised cases of privilege admitted by the law of evidence,
in the case of confidential relationship, on grounds of public policy, could not be
extended to the case of a journalist when he is to give evidence before a Court of law or
a statutory commission of inquiry or tribunal, because public interest in the
administration of justice or inquiry into public affairs demanded a full disclosure of all
relevant evidence, which the Court or tribunal considered necessary for the disposal of
the matter for inquiry. Hence, any journalist who refuses to answer such question would
be liable to be punished for contempt of Court107 or other penalty that may be provided by
law.108
In British Steel Corpn. v. Granada Television Ltd .,109 the House of Lords ordered the
Granada company to reveal the name of an employee of the Corporation who has
passed secret documents to Granada that were then used in a programme about the
Corporation. Although, failure by Granada to comply with this order would have
constituted contempt, the matter was resolved when the employee concerned made his
identity known. In another case, a junior civil servant delivered anonymously to the
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Guardian newspaper confidential document addressed to Cabinet ministers by Secretary

of State for Defence. The Ministry of Defence sought to recover the documents to help
them to identify the person responsible for the leak. House of Lords held that Sections
10 of Contempt of Courts Act was a valid defence not only where a journalist was
asked a direct question in court, but also in an action for recovery of property where the
property once recovered would help to reveal the newspaper's source. S. 10 of the Act
empowers the court to require a person to disclose the source under certain
circumstances. Court also held that discovery of document is necessary in the interest of
national security.110 In that case, the court said that disclosure will be ordered only when
the same was necessary in order to identify him or her; if other means of identification
were reasonably readily available, they should be used. The expression "necessary" in
s. 10 was expressed to mean something less than indispensable, but something more
than useful.111 In X v. Morgan Grampian Publishers ,112 it was decided that when a
journalist relies on Sections 10 of Contempt of Courts Act 1981 in order to protect a
source, it must be determined whether the applicant's right to take legal action against
the source is outweighed by the journalist's interest in maintaining the promise of
confidentiality made to him or her.
According to learned authors A.W. BRADLEY & K.D. EWING,113 "The more robust view
of European Court of Human Rights on this issue has led to conflict between that body
and the House of Lords. The decision in Goodwin v. UK ,114 concluded that the decision
in Morgan Gramphin (supra) contravened Art. 10 of ECHR. The domestic courts
nevertheless appear willing to require the disclosure of sources where this will help an
employer to identify an employee within an organisation who has leaked commercial
information or confidential medical information about a patient. 115 But the court may
refuse to order disclosure of source where the applicant's interest will be adequately
protected by an injunction116 or where in the circumstances the applicant has not tried to
find the source of disclosure by other means first.117
9.  Of course, in an act ion for libel, the Court would not, as a rule, compel a
news- paper to disclose the source of its information Error! Bookmark not defined.
because the aggrieved person has his remedy in damages against the newspaper itself,
and even in other cases, the Court may, in its discretion, exempt a journalist from
disclosure of the source of his information where the Court is satisfied that more harm
than good would result from compelling a disclosure or punishing for refusal to answer.
7.  The question came up before the House of Lords in 1980 and the law as laid
down by a majority (4:1, LORD SALMONdissenting) in the case relating to television,118
which was regarded as included in the 'freedom of the press', may be summarised as
follows:
6. Though journalists, as such, have no absolute immunity from the obligation
of disclosure of the sources of their information when public interest so requires,
Courts have an inherent wish to respect the confidentiality of information obtained
as the result of a particular relationship including the relationship between a
journalist and his sources (p. 455).119
6. The grounds of such public interest, requiring, disclosure of the source of
such information so far recognised, are--
1. Where the disclosure was necessary to protect the security of the
nation (pp. 456, 474).120
1. Where the disclosure is necessary for the purpose of a fair and
speedy121 hearing of proceedings before courts and tribunals (p. 474),93
e.g. where the alleged confidential documents contain important evidence
to determine the issue before the Court, such as whether employer
defendant had committed unlawful discrimination against the employee
plaintiff.122
1. Where it is necessary for a proper administration of justice. 123
19.
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The principle on this score is that the press or journalists have no immunity to protect from the
obligation to disclose the source of their information when such disclosure is necessary in the interest
of justice (p. 456).124 It is the Court and not the journalist (p. 457), 125 who is to balance the conflicting
interests, namely, the need for freedom of the press and the respect due to confidence in the
profession on the one hand, and the interest of the community in justice being done on a proper
investigation being made into serious allegations126 relating to misconduct, such as bribery relating to a
public servant (p. 456).127
In that case, VISCOUNT DILHORME observed: "It is not in every case that a journalist will be ordered
to disclose his source. There must have been some wrongdoing in which the journalist has become
involved and where that is established, a judge must be satisfied that "in the interests of justice"
require him to exercise his discretion in favour of making such an order.
LORD DENNING in his book What next in the Law has said: "On consideration, therefore, I think that
in cases of investigative journalism, save in most exceptional circumstances, the newspaper or
television company ought not to be ordered to disclose the source of information; first, because it
impedes the flow of information, concerning matters of public interest and second, because such an
order is apt to be mere "brutum fulmen - which Addison in Spectator described as an "empty Noise;,
when it has not the sound of the Oaken Plant in it".
Article 10 of the European Convention of Human Rights embodying the right to speech, sets out
limitation similar to those in Art. 19(2) - restrictions - as are prescribed by law and are necessary in
democratic society, in the interests of natural security, public safety, for prevention of disorder, crime,
etc.
It was observed that protection of journalistic sources is one of the basic conditions of Press freedom,
as reflected in the laws and the professional codes of conduct in a number of contracting states and is
affirmed in several international instruments of journalistic freedom. ... Without such protection,
sources may be deterred from assisting Press in informing the public as matters of public interest. As
a result, the vital public-watch dog role of the Press may be undermined and the ability of the Press to
provide accurate and reliable information may be adversely affected. Having regard to the importance
of the protection of journalistic sources for Press freedom in a democratic society and potentially
chilling effect an order of source of disclosure has on the exercise of that freedom, such a measure
cannot be compatible with Art. 10 of the convention unless it is justified by an overriding requirement
in public interest. The true test is an interest "overriding public interest in the confidentiality of the
source" - (Decision by European Court of Human Rights in Goodwin v. U.K .,1 defended the right of the
press stating, "the press have always attached the greatest importance to their ability to protect their
source of information. If they are not able to do so, they believe that many of their sources would dry
up and this would seriously interfere with their effectiveness. It is in the interests of all of us that we
should have a truly effective press, and it seems to me that Parliament by enacting Sections 10
( Contempt of Courts Act ) has clearly recognised the importance that attaches to the ability of the
press to protect their sources".2In that case, the court gave an example of a disloyal employee who
reveals information to an outsider. If the employer suffers "grave damage" as a consequence, it would
be in the "interest of justice" that he be able to identify the employee, in order to dismiss him, despite
no legal act ion being taken against that employee. It is a question of balance, in that, the judge
should only order "disclosure" if the activity is of "such preponderating importance" that it takes
precedence over the general rule of nondisclosure. It is a question of fact, taking into account such
material considerations are (1) whether his very livelihood depends on it. However, if only a minor
inconvenience, then probably no disclosure would be warranted; (2) The nature of information; thus,
the greater the legitimate public interest in the information revealed, generally the greater will be the
importance of protecting the source; (3) How did the informant acquire the information? (a) If acquired
legally, then there is a greater likelihood that the sources' identity will be protected; (b) if it is without
authority, then the likelihood would be in favour of disclosure being ordered.
In the UK, under the Police and Criminal Evidence Act, 1984, a partial shield against enforced
disclosure in criminal investigation was given to "journalistic materials". Under s. 11 and 14 of the Act,
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all 'journalistic material' became either excluded material (if it is held in confidence and consists of
documents or other documents) or 'special procedure material' (if it is not held in confidence or is in
any other form). The effect of this is that no search warrant can be granted in respect of such material
unless the highly restrictive conditions on the grant of warrants are met. In relation to most
investigations, the police now have to apply for an order for access or production rather than a
warrant, and the procedure requires notices to the application to be given to the person holding the
material.
Journalists have a moral obligation to protect confidential sources of information according to Code of
Practice (1994) framed by the British Press itself which is to be enforced by British Press Complaint
Commission (para 16).
In Camelot Group PLC v. Centaur Communication Ltd.,3 the law was summarized thus:

1(1)  There is an important public interest in the press being able to protect the
anonymity of its sources.
8)  The law does not however enable the press to protect that anonymity in all
circumstances.
6)  When assessing whether an order forcing disclosure of the source should
be made, a relevant but a conclusive factor is that the employer may wish to identify the
employee so as to exclude him for future employment.
2)  Whether sufficiently strong reasons are shown in a particular case to
outweigh the important public interest in the press being able to protect the anonymity of
its sources will depend on the facts of the particular case.
1)  In judging the sufficiency of precedents, in particular recent judgments,
made by courts in similar cases should be given great weight".

4.  Subsequent to the foregoing judicial view, 4 Parliament has codified it in the
Contempt of Courts Act , 1981, to provide that no Court may require a person to disclose
the source of the information contained in his publication unless it is established to the
satisfaction of the Court that the disclosure was necessary in the interests of justice, or
national security or for the prevention of disorder or crime. The House of Lords has held5
that the affidavit of a responsible public servant in this behalf would suffice to satisfy the
Court that disclosure of the source of information was necessary on any of the specified
grounds.6
The question of absolute ban and need to publish the disclosure came up for consideration in
Saunders v. Punch Ltd . (t/a Liberty Publishing),7 wherein it was observed: "Although legal
professional privilege was extremely important in the administration of justice, the need to protect or
enforce it was not such that it had inevitably and always to preponderate in the balancing exercise
which the Court was required to carry out in determining whether disclosure of a source of information
was necessary in the interests of justice. Rather the question for the Court was whether the need in
the particular case "was so pressing as to require the absolute ban on disclosure to be overridden".

12I.  The same view, as in the U.K., has been arrived at by the American
Supreme Court,8 holding that the guarantee of freedom of the Press does not immunise
the Press to render assistance to the investigation of crimes which obligation lies on
every citizen. They are, accordingly, bound to disclose the information gathered by
journalists, with their sources, even though such information may have been obtained
under an agreement not to disclose,9 provided such information is relevant to the
investigation, in a particular case, and they are not compelled to disclose more than is
necessary for such purpose.10
The reason is that the public interest in the information relating to and investigation into the
commission of a crime overrides the public interest in the gathering of news by pressman, for the
purpose of enlightening the public on matters relating to public affairs. 11
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The Court held that the Constitution does not exempt the newsmen from performing the citizen's
normal duty to appear and furnishing information relevant to the grand jury's task. While the court
conceded that there must be some circumstances where the Constitution provides such a privilege, it
concluded that the strong public interest in investigating crime outweighs the press's interest in
protecting its interest.
In Herbert v. Lando ,12 the Court refused to fashion a constitutional shield to protect publishers from
inquiry into their editorial processes in the context of civil defamation act ion; although it did not
squarely reject all claims to a reporter's privilege in civil cases.
In that case, the Court was evenly split. One view was that the First Amendment does not accord
privilege against appearing before a grand jury and answering question as to their identity of the news
sources or information which he has received in confidence. Another view was that a newsman has an
absolute right not to appear before the grand jury. Third view as that before a newsman is asked to
appear, and reveal confidences, the State must show: (1) probable cause to believe that the newsman
has information clearly relevant to a specific probable violation of law, (2) that the information cannot
be obtained by alternative means less destructive of First Amendment rights, and (3) a compelling and
overriding interest in the information. POWELL J. while concurred with Court's opinion, in a separate
reasoning held: "The Court does not hold that newsman, subpoenaed to testify before a grand jury
and without constitutional rights with respect to the gathering of news or in safeguarding their
sources... If the newsman is called upon to give information bearing only a remote and tenuous
relationship to the subject of the investigation, or if he has some other reason to believe that his
testimony implicates confidential relationships without a legitimate need of law of enforcement, he will
have access to the Court on a motion to quash and an appropriate protective order may be enforced".
Judgment of POWEL J. further held : "The asserted claim to privilege should be judged on its facts by
the striking of a proper balance between freedom of the press and by the obligation of all citizens to
give relevant testimony with respect to criminal conduct".
Newspapers enjoy no constitutional immunity from search of their premises for evidence of crime
when a search is conducted under a warrant based on probable cause. Zurcher v. Stanfoerd Daily ,13
involved Stanford Daily, a student newspaper and Stanford University that had published photos of a
violent encounter on campus between student demonstrators and the police. Police obtained a
warrant to search the Daily for negative films and print that might aid the police to identify the
demonstrators who had assaulted the police. After the search, which proved to be fruitless, the Daily
sought damages for which it was contended that the search violated First Amendment. Court rejected
the contention reasoning that so long as a search complies with the Fourth Amendment, First
Amendment does not impose any requirement that law enforcement officials proceed by subpoena
instead of search warrant.
The Privacy Protection Act, a federal statute, limits the power of federal or State officials to obtain
evidence from the news media by search warrant unless the medium itself is believed to be the
criminal or there is a reasonable basis to believe that the evidence would be destroyed if sought by
subpoena.
In general, the press may not be excluded from criminal trials or preliminary hearings in criminal
cases. Only if there is some overriding public interest (such as preserving a defendant's fair trial right)
may the press be excluded. However, the press enjoys no general right of access to Government
information and non-Governmental judicial proceedings. 14
India
III. 1. In India, all persons who are competent to be witnesses under Sections 118 of the Indian
Evidence Act are also compellable to give evidence and also to answer relevant questions, unless
exempted by law. Such exemptions are contained in--

34i)  Section 5 of the Bankers' Books Evidence Act, 1891;

32ii)  Sections 51-52 of the Divorce Act , 1869;
21iii)  Sections. 121-27, 129 of the Indian Evidence Act , 1872.
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Hence, a journalist has no privilege as to non-disclosure of his source of information, though a

Magistrate or Police or Revenue Officer has such privilege in regard to the source of his information
as regards commission of an offence, under Sections 125 of the Indian Evidence Act .
Press Council Act

10.  In this context, it should be pointed out that though a newspaper or journalist
has no right to withhold the source of information from a Court of law, by Sections 15(2)
of the Press Council Act , 1978, they have been given such might as against the Press
Council, even though that Council includes their own representatives and though the
Council is otherwise vested with the same powers as that of a Civil Court in the matter of
receiving evidence, examining witness, etc.15 But s. 15(2) says: "Nothing in sub-section
(1) shall be deemed to compel any newspaper, news agency, editor or journalist to
disclose the source of any news or information published by that newspaper or received
or reported by that news agency, editor or journalist".
THE LAW COMMISSION OF INDIA, IN ITS NINETY-THIRD REPORT ON
DISCLOSURE OF SOURCES OF INFORMATION BY MASS MEDIA submitted to the
Government of India on 9-9-1983, considered this question at some length in the light of
developments in the law in Britain, the United States and elsewhere and recommended
the insertion of an explicit provision in the Indian Evidence Act 1872 (s. 132A) in
recognition of the right which reads: " Section 132A - No Court shall require a person to
disclose the sources of information contained in a publication for which he is
responsible, where such information has been obtained by him on the express
agreement or implied understanding that the source will be kept confidential".
Press & Registration of Books Act, 1867
Existing Central Laws.--Of the existing Central laws which impose any prior control on
the press, the Press and Registration of Books Act , 1867, requires the registration of
the printing presses, newspapers, books and periodicals printed in India. But this
enactment does not, in reality, impose any restriction upon the Press any more than a
law requiring registration of births and deaths does upon an individual. The object is
merely to secure information relating to printing establishments and their publications. 16
Legislation by Parliament
1. The Working Journalists and other Newspaper Employees (Conditions of
Service) and Miscellaneous Provisions Act, 1955, has been enacted to regulate
the conditions of service of employees of the Press as an industry. This legislation
is not directed against the freedom of expression and its constitutionality has
been upheld even though it may have a tendency to curtail circulation, in some
cases, as a remote and indirect effect of the legislation. 17
1. The Newspaper (Price and Page) Act, 1956, was enacted to prevent unfair
competition among newspapers by regulating the prices charged by them. This
Act has, however, been struck down by the Supreme Court in Sakal Papers v.
Union of India ,18 and the decision in this case constitutes a landmark in the
history of the freedom of expression in India.
Section 3(l) of this Act provided--
"If the Central Government is of opinion that for the purpose of preventing unfair
competition among newspapers so that newspapers generally and in particular,
newspapers with smaller resources and those published in Indian languages may have
fuller opportunities of freedom of expression, it is necessary or expedient so to do, the
Central Government may, from time to time, by notification in the Official Gazette, make
an order providing for the regulation of the prices charged for newspapers in relation to
their maximum or minimum number of pages, sizes or areas and for the space to be
allotted for advertising matter in relation to other matters therein".
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The Supreme Court held that the above provision constituted an unreasonable
restriction upon the freedom of expression, which included not only the right to circulate
but also the volume of circulation of one's ideas. "In other words, the citizen is entitled to
propagate his views and reach any class and number of readers as he chooses subject
of course to the limitations permissible under a law competent under Art. 19(2)". It
follows that the fixation of a maximum number of pages that a newspaper may publish
for a given price interferes with the freedom of a newspaper to utilise as many pages as
it likes for publishing its view because that is made to depend upon the price charged to
the readers. Further,
"The fixation of a minimum price for the number of pages which a newspaper is entitled
to publish is obviously not for ensuring a reasonable price to the buyers of newspapers
but for expressly cutting down the volume of circulation of some newspapers by making
the price so unattractively high for a class of its readers as is likely to deter it from
purchasing such newspapers."19
As to the contention that a newspaper could, instead of rising prices, reduce its
advertisements, the Court observed--
"If the area for advertisements is curtailed the price will be forced up. If that happens, the
circulation will inevitably go down. This would be no remote, but a direct consequence of
curtailment of advertisements".
Though the object of the law is apparently laudable, namely, to prevent 'unfair
competition among newspapers', "it seeks to achieve its object of enabling what are
termed the smaller newspapers to secure larger circulation by provisions which without
disguise are aimed at restricting the circulation of what are termed the larger papers with
better financial resources.... Carrying on unfair competition may be a matter for
condemnation. But that would be no ground for placing restrictions on the right of
circulation".20
8.  The Court similarly struck down cl s. 3-3A of the Newsprint Control Order,
1962, which sought to control the bigger newspapers through its policy of distribution of
imported newspaper, in the name of preventing monopolies and encouraging the smaller
newspapers.21
Criminal Law Amendment Act , 1961
5.  The enactment of Criminal Law Amendment Act (23 of 1961) was a
retrograde step in so far as it re-enacted, in a modified form, the provisions of the Press
(Objectionable Matter) Act, 1951, relating to forfeiture of offending publications. The
relevant provision is s. 4.
A newspaper, book or other document, wherever printed, comes within the purview of s.
4, if--
16. it questions the territorial integrity or frontiers of India in a manner which is,
or is likely to be, prejudicial to the interests of the safety or security, of India;
16. it is made, published, circulated in a 'notified area' (i.e., an area notified by
the Central Government 'in the interest of the safety or security of India or in the
public interest') and is, or is likely to be, prejudicial to the maintenance of public
order or essential services in the notified area; or to the interests of the safety or
security of India.
If the State Government is satisfied that any book, newspaper or other document
contains any such matter as aforesaid, it may declare every copy of such document to
be forfeited to Government, but the aggrieved person has been given the right to apply
to the High Court, within two months of such order of forfeiture, to set aside such order
on the ground that the document in respect of which such order was made, did not
contain any such offending matter as aforesaid.
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But though the opinion of the State Government is subjective, it is required, by s. 4(l) to
state, in its notification of forfeiture, the 'grounds of its opinion'. The Supreme Court has
held that this expression means that the notification or newspaper which must state the
representation contained in the book according to the Government offends against s. 2
of the Act . 'Grounds of the opinion' must mean the conclusions of facts on which the
opinion is based, and where no such facts are disclosed and the order merely recites the
contents of s. 2,e.g. 'prejudicial to the security of India', the order will be struck down as
ultra vires.22
Criminal Law Amendment (Amending) Act, 1990 came into force on 17-4-1990. It lays
down a ban as follows: "Whoever publishes a map of India, which is not in conformity
with the maps of India as published by the Survey of India, shall be punishable with
imprisonment which may extend to six months, or with fine or with both". The said
amendment is an amendment to Sections 2 of the Amending Act of 1961, which was
enacted as the border question with China erupted into open.
Section 2 of Criminal Law (Amendment) Act, 1961 provides "Whoever by words either
spoken or written, or by signs, or by visible representation or otherwise, questions the
territorial integrity or frontiers of India in a manner which is, or is likely to be, prejudicial
to the interests of the safety or security of India, shall be punishable with imprisonment
for a term which may extend to three years, or with fine, or with both".
Commenting on the Amendment Act of 1990, noted columnist and lawyer A. G.
NOORANI has said that the amendment is violative of freedom of speech and
expression. It is better to extract what the learned author has said in his article "Freedom
of Excpression in Maps" - Article No. 44 in the book Constitutional Question and
Citizen's Rights.
"The difference between the 1961 and the 1990 Act s is that the former requires proof
that the publication is at the least 'likely to be prejudicial to the interests of the safety or
security of India', not prejudicial merely to the government's diplomacy or publicity
campaign. There must be a real likelihood of the nation's safety or security being
imperilled, not the policy of the government of the day. The 1990 Act drops this
requirement in respect of maps altogether while retaining s. 2 of the Act of 1961 in
respect of all writings. But any map of India which is 'not in conformity' with a Survey of
India map will invite punishment for its publisher - six months in prison - quite regardless
of whether it is likely to prejudice the nation's safety or security or not. The power of
search and seizure under s. 4 remains, for the Act of 1990 only inserts the new provision
regarding maps, leaving the rest of the Act of 1961 intact.
Why was the 1990 amendment brought forward at all? It was moved in the Rajya Sabha
on 1st August 1989 by Union Home Minister, Buta Singh. The statement of objects and
reasons attached to the Bill makes shocking reading and bears quotation in extenso:
Publication of wrong maps of India, depicting incorrect boundaries of the country
amounts to indirectly questioning the frontiers of India and its territorial integrity. Certain
measures were taken to ensure that correct maps of India were published. In 1986,
instructions were issued to all State Governments and Union Territories to see that
publishers get their maps vetted by the Survey of India before publication. It was decided
later that the Survey of India would make available on 'free sale basis' the outline maps
of various scales and the publishers who utilize them as base of their maps would not be
required to get their maps vetted by them.
Where maps were required to be prepared on scales, other than those on which outline
maps were available, the publishers were required to get them vetted by the Survey of
India.
In spite of these measures, instances of incorrect depiction of external boundaries of
India by private agencies, newspapers and so on continued to come to notice. With a
 278

view to discourage the tendency to publish wrong maps of India, with impunity, it was
considered necessary to make it an offence, per se, to publish a wrong map of India.
Note that first a virtual pre-censorship was informally installed: maps 'vetted' by the
Survey of India. It was next made the poor man's ministry of guidance issuing maps for
free. However, the vetting remained for maps on a different scale. The last paragraph is
candid - "No element of wrongful intent or likelihood of harm is required". The publication
of a 'wrong map of India' must be made a criminal 'offence per se'. And a wrong map is
one which differs from that of the Survey of India. Reason? It 'amounts to indirectly
questioning' India's frontiers. No other democracy punishes 'wrong maps'.
Article 19(2) of the Constitution empowers the State to impose only 'reasonable
restrictions, on the fundamental right to freedom of speech and expression 'in the
interests' inter alia of 'the sovereignty and integrity of India'. How can a nonconformist
map be said to 'amount to indirectly questioning' the country's territorial integrity?
The Unlawlful Activities (Prevention) Act 1967, penalises anyone who advocates 'the
cession' of a part of India even if it be in the country's best interests - Katchativu ceded
to Sri Lanka, for instance. Also punishable is one who 'disclaims or questions the
sovereignty of India in respect of any part of the territory of India'.
However, Act of 1967 excludes from its scope an agreement entered into the
Government of India with a foreign Government as well as 'negotiations therefore carried
on by any person' authorised by the Government. A citizen who advocates the cession of
Aksai Chin or who draws a map on the lines of the 1950 map can be sent to jail. The
Prime Minister or the Minister for External Affairs who signs a boundary treaty with China
which provides for such cession is protected.
In any case the overriding question remains: Does s. 2 of the Act of 1961 prohibit mere
expression of opinion on international questions? If it does, it could hardly be said to be
a reasonable restriction on the fundamental right of free speech; still less the
Amendment of 1990 which penalised 'wrong maps' per se. There is no reason in law or
logic why maps should be dealt with more strictly than writings. The right to dissent
extends to both.
On 26th November 1991, twentyfour judges of the European Court of Human Rights
ruled unanimously in the cases brought by The Sunday Times and the Observer that the
restraint, by interlocutory injunction, of publication by three newspapers in the United
Kingdom of details and extracts from the book SPYCATCHER, Sunday Times v. United
Kingdom ,23 cited in Attorney General v. BBC ,24 after it had already been published
overseas constituted a violation of Art. 10 of the European Convention on Human Rights,
which guarantees freedom of expression.
On 14th July 1987 Spycatcher was published in the US. The Court ruled that the
continuation of the curbs thereafter in Britain prevented the press from exercising its
right and fulfilling its duty to provide information already available on a matter of
legitimate public concern. This is an extreme case concerning the intelligence agencies.
It applies all the more so to maps of India which are freely available abroad and do not
conform to the Survey of India's 1954 map.
Criminal Procedure Code, 1973
4.  Sections 95-96 of the CrPC , 1973 (which substantially reproduce ss. 99A-
G of the old Code of 1898), provide for the forfeiture of objectionable documents after
they have been printed and published, subject to a right of judicial review against the
order before a Special Bench of the High Court.25 It does not constitute prior restraint.
The grounds of the opinion of the State Government must be stated in the order of
forfeiture. Mere reference to s. 153A or 295A of the Indian Penal Code is not enough.
Nor mere reproduction of the offending matters in an appendix to the notification. State
 279

of U.P. v. Lalai Singh Yadav ,26 wherein it was held that the law forces the mind of the
Administrator to the obligation to reflect on the need to restrict and to state the grounds
which ignites its action". To fail here is to fault the order. 27 It must be stated which
communities were alienated from each other or whose religious feelings were
wounded.28Section 144 of the same Code, under which prior restraint is possible, is not
directed to the Press as such and is of a general application. 29 One of the essential
conditions for exercise of power under s. 95 of CrPC is that the publication contains
matter which is an offence under various provisions of Indian Penal Code specified
therein. The mere statement in Government notification that the book is likely to result in
breach of peace and public tranquility and in particular between those who revere Shivaji
and those who may not is too vague a ground to satisfy the tests enumerated in the
provision. The contention that in such cases, only the subjective satisfaction of
Government is required and the matter covered by notification is sufficient cannot be
assailed was not accepted by the Court. Mere citation of words of the section is not
sufficient. In that case, against the publication, an FIR was registered which was
quashed by Supreme Court earlier in 2007. In spite of the same, a notification was
issued which was quashed by High Court and later confirmed by Supreme Court. 30 In
that case, court said that the power to issue a declaration of forfeiture under s. 95 CrPC
postulates compliance with twin essential conditions - (a) The Government must form
the opinion to the effect that the newspaper, book or document contains "any matter...s.
295-A IPC ; and (2) the Government must state the grounds of opinion". Therefore, it is
mandatory that such a declaration by State Government in the form of notification must
state the grounds on which the State Government has formed a particular opinion. A
mere citation of the words of the section is not sufficient. Court further said that the
power to forfeit a newspaper, book or document is a drastic power in as much as it not
only has a direct impact upon the due exercise of the cherished right of freedom of
speech and expression, as envisaged in Art. 19(1)(a), it also clothes the police officer
with the right to seize the infringing copies of the book, document or newspaper and to
search places where they are reasonably suspected to be found, impinging upon the
right of privacy. Therefore, the provision has to be construed strictly and exercise of
power under it has to be in the manner and according to the procedure laid down
therein. Following guidelines were laid down by court--(1) The statement of the grounds
of the opinion by State Government is mandatory and a total absence thereof would
vitiate the declaration of forfeiture. Therefore, the grounds of Government's opinion must
be stated in the notification issued under s. 95 CrPC and while testing the validity of
the notification, the court has to confine the inquiry to the ground so disclosed; (2)
Grounds of opinion must mean conclusion of facts on which the opinion is based.
Grounds must necessarily import or the effect or the tendency of matters contained in
the offending publication, either as a whole or portions of it as illustrations by passages
which the Government may choose. A mere repetition of opinion or reproduction of the
section will not answer the requirement of a valid notification. However, it is not
necessary that the notification must bear a verbatim record of the forfeited material or
give a detailed gist thereof; (3) The validity of the order of forfeiture would depend upon
the merits of the grounds. The High Court would set aside the order of forfeiture if there
are no grounds of opinion because, if there are no grounds of opinion, it cannot be
satisfied that the grounds given by Government justify the order. However, it is not the
duty of High Court to find out for itself whether the book contained any such matter
whatsoever; (4) The State cannot extract stray sentences of portions of book and come
to a finding that the book as a whole ought to be forfeited; (5) The intention of the author
has to be gathered from the language, contents and import of the offending material. If
the allegations made in the offending article are based on folklore, tradition or history,
something in extenuation could perhaps be said for the author; (6) If the writing is
calculated to promote feelings of enmity or hatred, it is no defence to a charge under s.
153 -A IPC that the writing contains a truthful account of past events or is otherwise
supported by good authority. Adherence to the strict path of history is not by itself a
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complete defence to a charge under s. 153 -A IPC ; (7) Section 95(1) CrPC postulates
that the ingredients of the offence stated in the notification should "appear" to the
Government to be present, it does not require that it should be "proved" to the
satisfaction of Government that all requirements of punishing section, including mens
rea were fully satisfied; (8) The onus to dislodge and rebut the prima facie opinion of
Government that the offending publication comes within the ambit of the relevant
offence, including the requirement of interest is on the applicant and such intention has
to be gathered from the language, content and import thereof; (9) The effect of the words
used in the offending material must be judged from the standards of reasonable, strong-
minded, firm and courageous men and not those of weak and vacillating minds, nor of
those who scent danger in every hostile point of view. The class of readers for whom the
book is primarily meant would also be relevant for judgment of the probable
consequences of the writing.31
3.  More comprehensive and momentous was the Prevention of Publication of
Objectionable Matter Act, 1976 (which re-enacted, in a more rigorous form, the
substance of the Press (Objectionable Matter) Act, 1951).
This Act of 1976 has, however, been repealed in 1977.
Regulation of the mails and censorship of correspondence
U.K.
(A) U.K.--Until recently, in England, there was no statutory protection against wire-tapping or intrusion
into privacy through electronic devices.32 The only statute was one of 1360 which made it an offence to
listen to discourses taking place in another man's house by the crude methods of 'eavesdropping'.

34a)  The Wireless Telegraphy Act, 1949, was enacted to penalise eavesdropping
by the use of electronic devices.
35b)  There was no statutory remedy against interference with or interception of
one's mail or telephone conversation until the enactment of the Interception of
Communications Act, 1985. This Act makes it an offence to intercept a communication
sent by post or through the Public telecommunications system, except by virtue of a
warrant issued under the Act, by the Secretary of State.
25c)  Of course, the Post Office Act s, 1953 and 1969 empower the Postal
authorities, and the Customs and Excise Management Act, 1979 empowers the Customs
authorities, to seize and destroy or forfeit indecent or obscene articles which are sent
through the mails or imported.
Japan
(B) Japan.--Some Constitutions expressly guarantee the secrecy of correspondence. Thus, Art. 21 of
the Japanese Constitution provides--
"No censorship shall be maintained, nor shall the secrecy of any means of communication be
violated".
(C) Some Constitutions guarantee the privacy of correspondence against the Executive but not
against the Legislature, e.g.
West Germany
West Germany.--Article 10 of the West German Constitution (1949) says--
"The privacy of correspondence and of postal and telegraphic communications is inviolable.
Limitations shall only be imposed in virtue of law."
Article 8(1) of the European Convention of Human Rights says: "Everyone has the right to respect for
his private and family life, his home and his correspondence", and Art. 8(2) says that there shall be no
interference by a public authority with the exercise of this right except such as in accordance with law
and is necessary in a democratic society in the interest of national security, public safety or economic
 281

well being of the country for the prevention of disorder or crime, for the protection, health or morals or
for protection of the rights and freedom of others".
Correspondence nowadays is not restricted merely to letter and written communication, but extends to
telephones, wire services, E-Mail and the like and in general any interference with private
communication by the public authorities is to be considered a violation of Art. 8. However,
correspondence between prisoners and outsiders has led to that right being questioned. In Golder v.
UK ,33 the court considered whether preventing or writing to a solicitor with a view to taking a libel act
ion against prison officer was violation of Art. 8(1) and especially whether the interference was justified
for the "prevention of disorder or crime". The court held that the applicant has a right to consult a
solicitor and it was not upto the Home Secretary to consider the legal prospects for any possible future
proceedings - that is the Court's domain. Therefore, by refusing the free flow of correspondence on
this matter, interference could not be justified as being "necessary in a democratic society" and hence
there had been a violation of Art. 8. This decision coupled with that in Secretary of State for Home
Dept. exparte Anderson34 ensured that restraints on correspondence with a solicitor were relaxed, but
they did not cover persons other than solicitors with whom prisoners might wish to correspond in order
to complain, such as MPs. And so the simultaneous ventilation rule still applied in such instances until
it was abolished entirely in 1989.
The decision in Silver v. UK 35 was concerned not only with communication with a solicitor, but also
with privacy of correspondence "generally"; certain letters unconcerned with legal proceedings,
including communication with journalists had also been stopped. It was found that such interference
with correspondence was in breach of Art. 8 and certain changes were therefore made to standing
orders in prison. Prisoners were free as to contents of letters, previously they could not make criticism
of persons in public life, or to make complaints about the prison; they were also allowed greater
freedom in their choice of correspondent; they were not confined to relatives or friends, but could
correspond with others including journalists.
In Campbell v. UK ,36 the applicant was convicted of murder and sentenced to life imprisonment
(recommended to serve no less than twenty years). In respect of possible future legal proceedings
against the Secretary of State for Scotland, for various claims suffered by the applicant whilst in prison
and complaints to Commission, the applicant wished to write to his solicitor without his
correspondence being interfered with. The Dy. Governor of the prison gave him an assurance that
only matters concerning his ECHR complaint would not be tampered with, but all other mails would be
scrutinised under the then Prison (Scotland) Act, 1952. The Government admitted that some ECHR
mail had been opened. The applicant complained to the Commission that such interference with his
correspondence by prison authorities was a breach of Art. 8. The Court found that though there was
interference, it was in accordance with law and that there was a legitimate aim involved i.e., the
correspondence did not contain material which was detrimental to prison order and security or related
to crime. The court further held that the action was not necessary in a democratic society i.e.,
corresponded to a pressing social need and that it was proportionate to the legitimate aim pursued.
The Court said that letters between solicitor and client are generally privileged, but could be opened,
but not read; where there are reasonable grounds to suspect that some illicit object or substance are
enclosed. The letter may be read in circumstances where "the authorities have reasonable cause to
believe that the privilege is being abused in that the contents of letter endanger prison security or
safety of others or are otherwise of criminal nature" and provides sufficient safeguards against the
possibility of abuse. Therefore, there was violation of Art. 8(2).
U.S.A.
(D) U.S.A.--The privacy of correspondence, like any other means of communication, is included in the
freedom of speech37 and no censorship can be imposed except, perhaps, in times of war. 38
But, under its 'Postal power' (Art. 1, s. 8), Congress may authorise the Postal authorities to exclude 39
from the mails matters that are injurious to the public interest, e.g. obscene40 and fraudulent41 matters,
such as lottery tickets42 or puzzle contest journals,43 seditious matters.44
Exclusion from the right of the mails is an effective means of suppressing a publication, for, in modern
times, there is hardly any other means of circulating a written publication by the general public besides
 282

the mails. Hence, the limits of the Postal control are judicially determined upon the same
considerations as in the case of restrictions imposed upon the freedom of expression by other means,
Thus.--

35a)  Apart from the objective grounds of exclusion permissible under the doctrine
of 'Police powers', such as obscenity45, prevention of fraud and the like,46 the Postal
authorities do not possess any subjective discretion to exclude matters from the mails on
the ground that they do not, according to their opinion, conduce to the 'public good or
welfare', though not 'obscene';47 or on political grounds, viz., that the literature contains
Communist propaganda.48
36b)  The Courts insist upon a judicial review of the finding as to the obnoxious
nature of the mailed article before it is excluded. 49
26c)  The right to exclude is confined to the offending issue. There is no power to
ban future issues of a journal on the ground that a previous issue was obscene, for, such
exclusion would amount to pre-censorship of publication. 50
12d)  The restriction by way of censorship would also be unconstitutional if it is
unnecessarily wide or greater than is necessary for the protection of the particular
Governmental interest involved.51
On the other hand,--
7. No mailer has any constitutional right to send unwanted material to another
person's home and, accordingly, it would be constitutionally permissible for the
State to prohibit a vendor from sending obnoxious material at the, instance of the
unreceptive addressee, provided 'due process' is complied with. 52 The Court said
that a mailer's right to communicate stops at the mail box of an unreceptive
addressee. The power of a householder under the statute is unlimited. Congress
provided that sweeping power not only to protect privacy, but also to avoid
possible constitutional question that might arise from vesting discretionary power
in Government official. In Bolger v. Young Drug Products Corpn .,53 the court
struck down a federal law banning mailing of unsolicited advertisements for
contraceptives including condoms. No matter how offensive the condom
advertisement might be, said the court, the short journey from mail box to trash
can is an acceptable burden to preserve free speech. Freedom of expression
would not include any right to communicate offensively with another.54
7. It has also been held that the Postal Department has the power to impose
conditions for obtaining the 'second-class privileges' i.e., a cheaper rate for
periodicals, e.g. that such periodical must be regularly issued and be published
for dissemination of information of a public character.55 At the same time, this
power cannot be so exercised as would give the Post-master General the power
of censorship; thus, he cannot deny the privilege on the ground that the contents
of the periodical does not 'meet some standard of the public good or welfare'. 56

7e)  The analogous freedom against 'unreasonable searches and seizures',

guaranteed by the 4th Amendment, must be noted in this context. Though in the
exercise of its power to exclude from the mails matters injurious to the public interest,
the Post Office may have to inspect the contents of an article the power to open or seize
can be exercised on the same conditions as would be valid under the 4th Amendment, if
such inspection had taken place in the addressee's home, i.e., under a valid warrant.57
In Reno v. American Civil Liberties Union ,58 the issue was regarding validity of Communication
Decency Act of 1996 and Child Online Protection Act, a law enacted to protect minors from indecent
and patently offensive communication on the Internet. Notwithstanding the legitimacy and importance
of the congressional goal of protecting children from harmful material, court said that the provision
violated First Amendment. While so holding, court also observed that unlike the conditions that
prevailed when Congress authorised regulation of the broadcast spectrum, the Internet can hardly be
considered a "scarce" expressive commodity. It provides, relatively unlimited, low cost capacity for
 283

communication of all kinds. Court said: "Our cases provide no basis for qualifying the level of First
Amendment scrutiny that should be applied to this "medium". Court said that in order to deny minors
access to potentially harmful speech, the legislation effectively suppresses a large amount of speech
that adults have a constitutional right to receive and to address to one another. Though court justified
Governmental interest in protecting children from harmful speech, that interest does not justify an
unnecessary broad suppression of speech addressed to adults.
India
(E) India.--There is little doubt that the freedom of correspondence or other Postal communication
would be regarded as included in the freedom of speech and expression 59 guaranteed by Art. 19(l)(a).
Consequently, restrictions may be imposed upon this freedom only if they are reasonable and founded
on any of the grounds specified in cl. (2) of that Article, such as security of the State, public order.

35i)  Sections 5 of the Indian Telegraph Act , 1885 and Sections 26 of the
Indian Post Office Act , 1898, empower the Government or any officer specially to take
possession of telegraphic messages and postal articles not only on the occurrence of a
public emergency but also in the interests of the public safety or tranquillity and a
certificate of the Central or State Government as to the existence of such interest is
conclusive proof. There is no provision corresponding to this in times of peace either in
the U.S.A., on in England. Suchprovisions in India would be covered by the expression
'in the interests of public order'. But the reasonableness thereof may possibly be
challenged since these Act s do not provide for any hearing or representation nor for an
administrative review even when the power is exercised by an officer under delegated
authority.
Section 5(2) of the Telegraphs Act permits interception of messages in accordance with
the provisions of the said Act . "Occurrence of any public emergency" or "in the interest
of public safety" are the sine qua non for the application of provisions of s. 5(2). Unless a
public emergency has occurred or the interests of public safety demand, the authorities
have no jurisdiction to exercise the powers under the said section. Public emergency
would mean the prevailing of a sudden condition of state of affairs affecting the people at
large calling for immediate action. The expression "public safety" means the state of
condition of freedom from danger or risk for the people at large. When either of these
two conditions is not in existence, the Central Government or State Government or
authorised officer cannot resort to telephone tapping. Even if the Central Government is
satisfied that it is necessary or expedient so to do in the interest of sovereignty and
integrity of India or security of the State or friendly relation with sovereign States or
public order or for preventing incitement to the commission of an offence, it cannot
intercept the message or resort to telephone tapping unless public emergency has
occurred or in the interest of public safety or the existence of public safety requires.
Neither the occurrence of public emergency nor the interests of public safety are
secretive conditions or situations. Either of the situations would be apparent to a
reasonable person.
The first step under s. 5(2) is the occurrence of any public emergency or the existence of
public safety interest. Thereafter, the competent authority under s. 5(2) of the Act is
empowered to pass an order of interception after recording its satisfaction that it is
necessary or expedient so to do in the interest of (1) sovereignty and integrity of India;
(2) the security of State; (3) friendly relation with foreign State; (4) public order; or (5) for
preventing incitement to the commission of an offence. When any of the five situations
mentioned above is to the satisfaction of the competent authority, then the said authority
may pass the order for interception of messages by recording reasons in writing to do
so. Since no procedural rules were framed under the Act, Supreme Court gave certain
directions to be complied with for exercising the power to intercept. 60 In that case, the
validity of the provision was not challenged.
 284

33ii)  On the other hand, the power to exclude from the mails injurious matters is
provided by ss. 19-23 of the Post Office Act . Thus--
17. Section 19 prohibits the transmission of any '... filthy, noxious or deleterious
substance .......'
17. Section 19A prohibits transmission by post of tickets or advertisements of a
lottery.
10. Section 20 prohibits the transmission of 'indecent, obscene' articles, or any
article which has a cover or mark which is 'obscene, seditious, scurrilous,
threatening or grossly offensive'.
8. Section 21(2)(a), further empowers the Central Government to make rules
specifying the articles which may not be transmitted by post.
Any rule framed under s. 21(2)(a) which seeks to prohibit transmission of an
article on any ground other than those specified in Art. 19(2) would be ultra vires,
and, for the same reason, the words 'threatening or grossly offensive' in s. 20 are
likely to be challenged on the ground of being beyond the constitutional,
permissible limits of regulation as provided by Art. 19(2).
3. Section 27B of the Act empowers the Postal authorities to detain any
document suspected to contain any seditious matter.

This is now to be read subject to the narrow interpretation given by the Supreme Court to the word
'sedition' (see ante).
The interception of communication has been recognised by Government as a patent invasion of
individual's privacy, and it should occur only when it is properly justified within the law. It involves
interception of both post and telephone communication and as technology has advanced, now
includes matters such as faxes, Email and mobile phones. It has long been an offence to intercept the
mail without authority of a warrant granted by the Home Secretary. (Post Office Act, 1953. But now the
Postal Services Act, 2000 (ss. 83 and 84). A legal challenge to the procedure in Malone v.
Metropolitan Police Commissioner (1979) Ch. 344 was unsuccessful on the ground that the
interception of communication did not involve the violation of any right of the applicant. In that case,
learned judge observed that the subject "cries out for legislation". The practice was, however, found to
breach Art. 8 of ECHR: although Art. 8(2) permits limitation on a person, Art. 8(1) rights, there must be
prescribed by law a requirement which was not met by British practice of interception at the time. 61 The
Regulation of Investigatory Powers Act, 2000 (RIPA) which replaces Interception of Communication
Act, 1985 corresponds to ECHR. It includes not only the police and intelligence services, but also
revenue and military services and can be extended by the Secretary of State to other public bodies.
The RIPA authorises telephone tapping and intercepting electronic data such as E-mails and websites,
both on public and private systems. It also creates new powers of surveillance by making it clear that
certain forms of interception and uses of information are lawful including bugging devices.
The Regulation of Investigatory Powers Act, 2000 (RIPA) empowers any one in lawful possession of
intercepted information to require the disclosure of the key to protect (encryptified) data on the ground
of national security, serious crime and more dubiously that it is necessary for the performance of a
public function. The UK is the only leading democracy to allow this. A disclosure notice must be
authorised by a Circuit Judge who must be satisfied that there is no other means of obtaining the
required information ad the direction is proportionate to what is sought to be achieved.
The use of covert surveillance devices by the police is also regulated by Police Act , 1997 and the two
regimes can overlap. The statutory regime is not covert surveillance in a public place by CCTV
camera although there may, in some circumstances, be a breach of confidence, for example, if CCTV
pictures are published in the media.62The Act also regulates covert human intelligence such as
undercover agents and imposes duties on private communication providers, such as internet service
providers, to co-operate with authorities.63
Restriction through Customs
 285

Apart from the mails, the Customs afford another means of restriction upon the freedom of expression.
It relates to matters printed outside the State which imposes the restriction.
U.S.A.
(A) U.S.A.--A federal statute of 1930 (the Tariff Act) empowers the Customs authorities to seize any
obscene or seditious book and bring the matter to Court for ordering it to be destroyed. The final
authority to determine the issue of obscenity is thus in the Court, and the decisions in the Ulysses64
and Lady Chatterley's Lover65cases show that the Court is reluctant to prohibit the importation of any
publication which has a genuine literary value.
The Supreme Court has also laid it down that though the importation of obscene materials may be
prohibited, whether for commercial or non-commercial purposes, there must be a judicial review of the
finding as to the offending nature of the material before it is forfeited. 66
India
(B) India.--Section 11 of the Customs Act , 1962, confers wide powers upon the Central Government
to prohibit the import or export of goods of any specified description for the purpose, inter alia, of--

36a)  the maintenance of the security of India;

37b)  the maintenance of public order and standards of decency or morality.
Sections 110 and 111 of the Act give the Customs authorities power to seize and confiscate such
prohibited goods if they are attempted to be imported or exported.
Article 323B(2)(b), (3)(d), introduced by the Constitution (42nd Amendment) Act, 1976 enables
Parliament to exclude the jurisdiction of all Courts (other than the Supreme Court under Art. 136) to
adjudicate any 'complaints' arising from the administration of this Act.
The newspapers are bound to bear the common fiscal burden like other citizens when communication
amenities are provided by the State at considerable cost to itself to include facilities like telephones,
teleprinters, postal transport, etc. However, such levy is subjected to judicial review in view of the
constitutional mandate in Indian Express Newspaper v. Union of India .67 In this case, following the
issue of notification dated 1-3-1981 by the Government imposing specified rates of customs duty on
imported newsprints several newspapers approached the Supreme Court challenging the
constitutional validity of the notification. It was contended by the newspapers that levy of import duty
on imported newsprint had the immediate effect on the freedom of speech and expression and such
duty would result in increase in the prices of newspapers, consequently resulting in reduction in their
circulation. The Supreme Court directed the Government to reconsider the entire question on the levy
of customs duty and take necessary steps after modifying levy of duty.
Licensing as Distinguished from Censorship
U.S.A.
I. Licensing of speeches or meetings in public places to prevent breach of the peace or the like should
be distinguished from censorship or licensing of the contents of a speech, which makes the freedom
of speech illusory.68 While the object of licensing is to regulate the exercise of the freedom of
expression, the object of censorship is to prohibit its exercise in certain cases or circumstances, by
means of prior restraint, or to allow it only under the permission of an administrative authority. It is too
late in the day to doubt that liberty of religion and expression may be infringed by the denial of or
placing of some condition upon a benefit or privilege. Conditions upon public benefits cannot be
sustained if they so operate, whatever be their purpose as to inhibit or deter the exercise of First
Amendment. It is basic that no showing merely of a rational relationship of some colourable State
interest would suffice; in this highly sensitive constitutional area, only the gravest abuses, endangering
paramount interest give occasion for permissible limitation. 69
City of Lakewood v. Plain Dealer Publishing Co .70was concerned with a city ordinance which
prohibited unlicensed newstracks on city side walks and gave the mayor discretion to grant newstrack
licences on terms and conditions that he "deemed necessary and reasonable". The court found the
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ordinance facially invalid and explained why standardless licensing is always facially invalid. The
licensor's unfettered discretion coerces parties into censoring their own speech.The Court said: "...it
(self-censorship) derives from the individual's own act ion, not an abuse of government power. A facial
challenge lies whenever a licensing law gives government substantial power to discriminate between
the content or viewpoint of speech by suppressing disfavoured speech or disliked speakers. Govt.
may employ special licensing procedures for conduct commonly associated with expression, but the
Constitution requires that a government establish a neutral criterion to insure that its licensing decision
is not based on the content or viewpoint of speech. By contract, laws of general application that are
aimed at expression carry with them little danger of censorship. A law requiring building permit is
rarely effective as a means of censorship. Such laws provide too blunt censorship instrument to
warrant judicial intervention prior to an allegation of actual misuse". 71
Even in the U.S.A., the latter is unconstitutional72 but not the former,73 but if the object of licensing, i.e.,
for the requirement for publishing or distributing printed matter, the same will be invalidated. 74
"If a municipality has authority to control the use of its public streets for parades, for procession, it
cannot be denied authority to give consideration, without unfair discrimination, to time, place and
manner in relation to the other proper uses of the streets". 75
The very object of such regulation is the preservation of effective freedom of speech. 76
"The right of free speech would often be an empty privilege in a place and a time beyond the
protecting hand of the guardians of public order." 77
Hence, the Supreme Court has upheld 'reasonable and non-discriminatory' regulation by Government
authority that preserves peace, order and tranquillity, 'without deprivation of the guarantees of free
speech, press and the exercise of religion'. Thus, the hours and place of public discussion can be
controlled,78 for, the Constitution cannot be "treated as a promise that everyone with opinions or beliefs
to express may gather around him at any public place and at any time a group for discussion or
instruction".79 In Freedman v. Maryland ,80 in the course of striking down a Maryland statute designed
to prevent exhibition of obscene films, the court identified the "procedural safeguards" necessary to
avoid constitutional infirmities with a licensing scheme. The burden of proving that the film is
unprotected expression must be on censor. While the State may require advance submission of all
films, only a judicial determination in an adversary proceeding suffices to impose a valid final restraint.
A Government censor must within a specified brief period, either issue a licence or go to court to
restrain showing the film. Finally, any licensing procedure must also assure a prompt final judicial
decision, to minimize the deterrent effect of an interim and possibly erroneous denial of licence.
In Thomas v. Chicago Park District ,81 the Court held that the decision in Freedman (supra) is not
applicable to a content-neutral permit ordinance directed to all activities conducted in a public park in
order to co-ordinate multiple uses of limited space; to assure preservation of park facilities, to prevent
uses that are dangerous, unlawful or impermissible under the relevant rules; and to assure financial
accountability for the damage caused by the event. The court viewed "licensing to censor the content
of a speech" as totally different from regulation of the use of the public forum that ensures the safety
and convenience of the people. The court said that since the rules are applicable for "all act ivities
conducted in public parks", it is intended to exclude communication of a particular content, but to co-
ordinate multiple uses of limited space, it will not amount to censorship.
Censorship means "preventing something from being expressed in speech, writing or pictorially". 82
The essential features of censorship are: (1) the matter to be published has to be submitted to a
Government authority by the editor or publisher of the newspaper prior to its printing or publishing, (2)
the standard applied by the censor is subjective, and is not subject to judicial review. He thus
becomes the guardian of people's ideas and expression, which acts as a "deterrent to the creation of
new thoughts", (3) while in a judicial trial for punishment for an offence committed by the publication,
the burden is on the prosecution, the censorship over publication, there is hardly any hearing and if
there is any, the onus would be placed by the censor on the publisher. 83 Licence is not necessarily a
permit. A licence is intended to regulate business while a permit would be one without which the
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business can ever be started, so that a permit may amount to a prohibition of the business in regard to
persons who are unable to obtain the same.84
India
In line with the above statement made in Art. 19 of this Commentary, the Gujarat High Court, 85 in
reviewing the constitutionality of a law providing for licensing of the right to use loudspeakers in or
near public places, observed--
"...there is a clear distinction between the requirement of a licence and the imposition of pre-
censorship. Where pre-censorship is imposed, it requires the citizen to submit his views to the
authorities concerned as a condition precedent to its publication. When a citizen is required to take out
a licence, he is not required to submit his views to the authorities prior to publication. All that he is
required to do is to take out a licence before exercising the right to free speech". 86
II. But even in this case, the licensing is upheld only if an objective, definite standard87 is provided by
the law instead of vesting discretionary or unregulated power 88 in the hands of the licensing authority,89
and no power to discriminate is left to such authority. 90 It is on this ground that the Supreme Court
invalidated a municipal law which prohibited the use of amplifiers in streets and public places except
without permission of the chief of police, where the law prescribed no standards for guiding the
exercise of his discretion,91 but upheld a conviction for breach of a similar law which prohibited the use
of amplifying instruments emitting 'loud and raucous noises', 92 holding that the law was not vague.
In K. Venu v. Director General of Police ,93 it was held that freedom of expression is a constitutional
guarantee, subject to public order, morality and decency and a citizen has no fundamental right to use
loudspeaker. It is for the authority to satisfy itself whether in a given situation, permission to use
loudspeaker should be given. At the same time, it was also held that total restriction in the use of
loudspeakers in the public meeting is against Art. 19(1)(a) and any such rule without any condition
appended thereto is unconstitutional. It may have limited application in case of an apprehension of
breach of peace.94
In Kovacs v. Cooper ,95 the US Supreme Court in a five to four decision upheld the validity of an
ordinance prohibiting any person to use any sound track or other instrument that emits "loud and
raucous" noise in any public street. It was held that the ordinance imposing was total prohibition on
use of sound track or other instruments which emit loud and raucous noise but does not restrict the
communication of ideas or discussion of issue of human voice, by newspapers, by pamphlets or by
doggers. There was a need for reasonable protection in the homes and business houses from
distracting noise from vehicles equipped with sound amplifying devices to justify such an ordinance
prohibiting loudspeaker and other instruments. It was further held that the modern devices for
amplifying the range and volume of the voice offered easy, too easy opportunity to aural aggression,
and if "uncontrolled", the result is intrusion at the cherished "privation". In Saia v. New York ,96
JUSTICE FRANKFURT said: "...modern devices of amplifying the range and volume of voice afford
easy, too easy, opportunities for aural aggression. If uncontrolled, the result is intrusion into cherished
privacy. Surely, there is not a constitutional right to force unwilling people to listen". In Shuttleworth v.
City of Birmingham ,97it was observed: "Although this Court has recognised that a Statute may be
enacted which prevents serious interference with normal usage of streets and parks.... We have
consistently condemned licensing system which vests in an administrative official discretion to grant or
withhold a permit upon broad criteria unrelated to proper regulation of public places. Even when the
use of its public streets and sidewalls is involved, the municipality may not empower its licensing
officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket or
parade according to their opinions regarding the potential effect of the act ivity in question on the
"welfare", "decency" or "morals" of the community." It was declared that the provision was
administered "to deny or unwarrantedly abridge the right of assembly and the opportunities for the
communication of thought immemorially associated with resort to public places". In that case, a
person was convicted for having participated in a 'parade' for which no permit was obtained from the
local authority. The conviction was set aside. In ISKON v. Lee ,98 the question was whether an airport
terminal operated by a public authority is a public forum and whether a regulation prohibiting
solicitation in the interior of an airport terminal violates the First Amendment. It was held that the ban
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on distribution of literature or pamphlets in the airport terminal was violative of First Amendment,
whereas the ban on solicitation was reasonable. It was observed that face to face solicitation presents
risk of duress and is appropriate target of regulation.
In City of Ladve v. Gilleo ,99 the Court voided a near total ban on signs displayed on or in residence.
The Court said that even though the law was content-neutral, the State has almost completely
foreclosed a venerable means of communication that is both unique and important. Although
prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, the
danger they pose to the freedom of speech is readily apparent--by eliminating a common means of
speaking, such measures can suppress too much speech".
In Hague v. Ohio ,100 the Court considered the constitutionality of a municipal ordinance forbidding all
public meetings in the streets and other public places without a permit. The city maintained that the
ordinance was clearly constitutional. In that case, court said: "Wherever the title of streets and parks
may rest, they have immemorially been used for purposes of assembly, communicating thought
between citizens and discussing public questions. Such use of the streets and public places has, from
ancient times, been part of the privileges, immunities, rights and liberties of citizens. The privilege of a
citizen of United States to use the streets and parks for communication of views on national question
may be regulated in the interest of all, it is not absolute, but relative and must be exercised in
subordination to the general comfort and convenience and in consonance with peace and good order,
but it must not, in the guise of regulation, be abridged or denied. In US v. Kokinda ,101 the court upheld
a postal regulation barring solicitation on postal property as applied to a political advocacy group
soliciting contribution on a post office sidewalk that ran from a postal parking lot to the post office and
was used solely by postal customers. It was not a public thoroughfare and thus was not a traditional
public forum, even though it is open to the public.
Freedom of expression is fundamental. The censor is not the moral tailor setting his own fashions, but
statutory gendarme policing films under Art. 19(2) from the angle of public order, decency or morality.
These concepts themselves are dynamic and cannot be whittled down to stifle expression or
licentiously enlarged to promote a riot of sensational display. 102 A film intended to depict consequences
of social evil can show the evil itself to the extent it is relevant for the purpose of the film. Where the
theme of the film is to condemn degradation, violence and rape on woman, scenes of nudity and rape
and use of expletives to advance the message intended by the film arousing a sense of revulsion
against perpetrators and pity for victim is permissible. Exhibition of such film cannot be prohibited on
the ground that it violates the guidelines laid down by the Central Government whereby scenes of
violence and obscenity offending human sensitivity, etc. are to be avoided.103
In Romesh Chotalal Dalal v. Union of India ,104 a petition was filed to restrain the screening of the serial
"Tamas" on the ground that it violates Arts. 21 and 25 and Sections 5 of the Cinematograph Act ,
1952. Based on the novel of Bhisma Sahni, the serial depicted the event that took place in Lahore
immediately before the partition of the country. Two learned judges of the Bombay High Court rejected
the contention after viewing the film, that the film propagated the cult of violence. When the matter
was taken before the Supreme Court, it was observed that the picture is a powerful instrument with a
much stronger impact on the visual and rural sense of the spectator than any other medium of
communication. It was held that if some scenes of violence, some nuisances of expression or some
events in the film can stir up certain feelings in the spectator, an equally strong, lasting and beneficial
impression can be conveyed by scenes revealing the machination of selfish interest, scenes depicting
mutual respect and tolerance, scene showing comradeship, help and kindness which transcended
barriers of religion.
The right of the State to exert its power of regulation is hemmed by Art. 19(2). It does not include
intolerance to expression of one's views in the market place. There will be periods of renaissance in
history only when there is free inflow and outpouring of ideas, ideas which may even run counter to
the dominant, traditional opinions must have their free play, and this is the hypothesis on which free
speech is built, that speech can rebut speech and propaganda will answer propaganda. Where in the
art of literature or film making, alternate interpretation to religious faith is possible, State should not
curtail the freedom of expression and also the freedom to see the film, merely because some people
have a different view about the film. The issue in such cases is whether the petitioner's right to
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freedom of expression and equally, a person's right to see the film can be curtailed by the State
ostensibly on the ground that a section of the people does not accept that the petitioner has "such"
freedom of expression. The issue is whether the State is bound to protect the person whose
fundamental right is sought to be violated by people who threaten to breach peace or whether the
State will mutely watch such threats. In that case, though the film "The Da Vinci Code " was given
clearance by Censor Board, the State Government refused permission to exhibit the film for a
temporary period on the ground that certain section of Christian community have expressed strong
resentment against the objectionable content of the film and they are likely to resort to various forms
of agitations, where the film is screened". The High Court declared the Government order as 'void'. 105
Once the Censor Board has given permission to exhibit a film for public, the State Government cannot
interfere and stop its exhibition on the ground of law and order. Once the Censor Board has certified
that a film is fit for public exhibition, it is the duty of State Government to effectively maintain law and
order once such film is being publicly exhibited. The Government has also no power to suspend the
exhibition before the film is publicly exhibited.106
In S. Rangarajan v. P. Jagajivan Ram,107 the Supreme Court said:
"The democracy is a government by the people via open discussion. The democratic form of
government itself demands its citizens an active and intelligent participation in the affairs of the
community. The public discussion with peoples' participation is a basic feature and a rational process
of democracy which distinguishes it from all other forms of govt. The democracy can neither work nor
proper unless go out to share their views. The truth is that public discussion on issues relating to
administration has positive value. When men act on the principles of intelligence, they go out to find
the facts. When they ignore it, they go inside themselves and find out what is there. They elaborate
their prejudice instead of increasing their knowledge".
The court also said: "...in a democracy, it is not necessary that everyone should sing the same song.
Freedom of expression is the rule and it is generally taken for granted".
This aspect of the discretion being unregulated by any standard was not considered in an Allahabad
case.1
III. The position becomes somewhat complicated when knowledge is disseminated through a medium
which is commercial. In such a case, there is no doubt that the State has the power to regulate the
business or calling by a licence in the exercise of its 'police power' to shield the public against
untrustworthy, incompetent or fraudulent businessmen, but at the same time, it cannot assume a
guardianship of the public mind by prohibiting the advocacy or propagation of a particular school of
thought without a previous permit (which amounts to censorship of speech or of the press). 2
Distribution of Literature
U.S.A.
(A) U.S.A.--The freedom of the press obviously includes the freedom of circulation and distribution of
printed matter. Freedom of the press has also been held not to be confined to newspapers but to
embrace pamphlets and leaflets.3
It would follow that--

36i)  Any prior restraint or requirement of a licence or permit for the distribution of
any literature would, in general, be unconstitutional. 4 Though a municipality may punish
persons for littering the streets and other public places, it cannot forbid the distribution of
any literature on the streets or public places.5
34ii)  A distinction has been drawn between distribution amongst the public and
sending an unwanted material to a particular individual.
Distribution amongst the public of literature relating to the public conduct of an individual
cannot be suppressed,6 but if any individual does not like the sending of any commercial
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material to his home, its circulation, by personal intrusion 7 or even by post, may be
prohibited at his instance, for the protection of his right of privacy. 8
22iii)  A distinction has also been made between commercial and religious
literature. As regards religious literature, even door to door solicitation has been upheld
as constitutionally protected under the freedom of religion. 9 But this freedom would not
be available in the case of commercial advertising, 10 except when there is some public
interest involved.11
In Heffrow v. ISKON ,12 the US Supreme Court upheld the validity of a rule of Minnesota State Fair
which prohibits the sale or distribution of any merchandise including printed and written material,
except from a booth rented from the State. The fair is conducted every year in an area of more than
one hundred acres and used to attract huge crowds. In this fair, booths are rented out to all comers on
a nondiscriminatory manner on a first come first serve basis and the charges are levied on the basis of
size and location of booth. ISKON challenged the rule on the ground that the regulation would impair
its ability effectively to distribute its religious literature. Rejecting the contention and accepting the
principal justification asserted by the State that there was a need to maintain orderly movement of the
crowd which is attended by a large people. ISKON's contention that the fair ground to city streets have
enimeriously been used for the purpose of assembly and discussing the public question was not
accepted. It was held that flow of the crowd and the demands of safety are more pressing in the
context of the fair. The Court further held that in the interest of the State to control the crowd and if
organisation would be allowed to move freely in the fair ground for distribution and selling literature
and soliciting fund at will, it will affect substantial State interest and the restriction will not serve a
substantial State interest. It was held that ISKON have alternative forum for distribution of literature or
soliciting donation anywhere outside the fair ground.
In another case, where ISKON is a party, the question was whether an airport terminal operated by a
public authority is a public forum and whether a regulation prohibiting solicitation in the interior of an
airport terminal violates the First Amendment. It was held that the ban on distribution of religious
literature in the airport terminal is violative of the First Amendment, but the ban on solicitation was held
as valid. It was held that face to face solicitation presents risks of duress that are an appropriate target
of regulation.13
Similarly, the US Supreme Court in ISKON v. Lee ,14 held that the activities of ISKON in so far as
raising funds for movement while making Sankirtan within the area of airport will affect free flow of
traffic and the solicitation of money in the busy area which makes visitors to stop is not permissible. It
was held that nothing should be done which would disrupt the movement of the public in the airport
area and solicitation for money would result in stopping a person and in the alternative the passengers
who wish to avoid the solicitation may have to alter path slowing both themselves and those around
these was unconstitutional.
Public property which is not by tradition or designation a forum for public communication is governed
by different standards. The court has recognised that the First Amendment does not guarantee access
to property simply because it is owned or controlled by Government. In addition to time, place and
manner regulations, the State may reserve the forum for its intended purposes, communicative or
otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression
merely because public officials oppose the speaker's view. The State, no less than a private owner of
property, has power to preserve the property under its control for the use to which it is lawfully
dedicated.15 In Greer v. Spock ,16 it was held that a military base cannot be treated as a public forum
merely because on certain occasion's civilian speakers and entertainers had sometime been invited.
Court sustained the prohibition, holding, "The business of Fort Dix is to train soldiers and not to
provide public forum".
India
(B) India.--The guarantee in Art. 19(1)(a) is that of the freedom of 'expression' and is thus more
definite than the guarantee of freedom of 'speech' and of the 'press' as in the First Amendment to the
American Constitution. Hence, there is no difficulty in holding that this freedom would extend to any
form of expression and the circulation of any form of printed matter. 17
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When the printed matter is purely commercial, restrictions may be imposed under Cl. (6) of Art.
19.18But when expression and commercial act ivity are mixed up (as in the case of a newspaper), any
restriction which may be imposed upon the commercial activity can be valid only if it does not curtail
the freedom of expression and circulation.19
It was held in Sakal Papers v. Union of India ,20 that though the press have two aspects--
disseminations of news and views and the commercial aspect, under the cover or with the object of
putting restrictions on the commercial right of the press, the right to freedom of speech and expression
cannot be curtailed, if the restriction sought to be imposed directly affects the said right. Freedom of
speech cannot be restricted for the purpose of regulating the commercial aspect of the act ivities of
the newspapers. State cannot restrict directly one freedom by placing an otherwise permissible
restriction on another freedom.
The newspaper industry enjoys two of the fundamental rights, namely, the freedom of speech and
expression under Art. 19(1)(a) and the freedom to engage in any profession, occupation, trade,
industry or business under Art. 19(1)(g). While no tax can be levied on the freedom of speech and
expression, tax can be levied on the commercial activity. Taxes have to be levied by reason of public
services facilities and amenities enjoyed by the newspaper industry, and are bound to contribute to the
burden of the exchequer and the same cannot be said as fatal to the freedom of press. But in such
cases, the Court is called upon to reconcile the social interest involved in the freedom of speech with
the public interest involved in the fiscal levies imposed by the Government. In view of the intimate
connection of newsprint with the freedom of the press, the tests for determining the vires of a Statute
taxing newsprint have to be different from the test usually adopted for testing the vires of other taxing
statutes. In the case of ordinary taxing statutes, the laws can be questioned only if they are openly
confiscatory or a colourable device to confiscate. On the other hand, in the case of tax on newsprint, it
may be sufficient to show a "distinct and noticeable" burdensomeness, clearly and directly attributable
to the tax. It was based on the principle that how far the duty will affect people of "their right to know".
It was observed that imposition of customs duty on a newsprint, in effect amounts to an imposition of
tax on knowledge.21
Distribution of literature on public streets or State-owned property may also be regulated (see post).
Regulation of freedom of expression in public places
U.S.A.
(A) U.S.A.--Different standards appear to have been applied by the American Supreme Court in
dealing with the different aspects of the present problem which demands a reconciliation between the
freedom of the individual and the interests of the public in public places. 22
We may start with the following general propositions:

37a)  While the general proposition is that a person cannot exercise his
fundamental right on another man's property,23 and that this proposition extends to
property, owned by the State,24i.e.,public property, an exception has been made in
respect of certain public places which are regarded as 'public forums' (below).
"Public forum" is public property where people traditionally gather to express ideas and
exchange views. To be constitutional, the Government's regulation of a public forum
must be narrowly tailored to serve a significant Government interest and must be usually
limited to time, place or manner restriction.25
Court has divided public property into three categories - (1) The unlimited public forum,
open to all subjects and speakers to the fullest degree protection by the First
Amendment; (2) the limited public forums open to those subjects and speakers that the
Government wishes to permit provided that the limiting criteria are not view-point based
or otherwise offensive to some other constitutional guarantee (e.g., a public forum
limited only to those of a given race is a presumptive equal protection violation); and (3)
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the "nonpublic forum" which is not public forum at all and may be closed to all or some
speech so long as the closure is reasonable.
The "unlimited public forum" may be further subdivided into "traditional public forum -
streets, parks and plazas traditionally open to speech - and the designated public forums
- public property that is not traditionally open to speech, but which has been so opened
by Government deliberately. This "designated unlimited public forum" is a very small set.
However created - by tradition or designation - speech in the unlimited public forum
receives the full protection of First Amendment.26
38b)  Public Places, such as streets,27 parks,28 are, in general, regarded as 'public
forums' for communication between people who have a right to gather there and to
discuss public questions.29 This exception is founded on the 'immemorial claim of the
free man to use the streets as a forum'.30 But military bases31 and mailboxes32 are not
public forum.
In Lehman v. City of Shaker Heights ,33 the Court upheld the refusal of a public transit system that
offered advertising space on its vehicles to accept paid political advertising by a candidate for public
office. The Court held that an advertising space is not a public forum. The offer of advertising space
was purely a commercial venture and like a private advertiser, the transit authority was free to refuse
advertising so long as it act s in a viewpoint neutral fashion. Though closing of all political speech in a
nonpolitical forum was permissible, denying advertising space to only some political speakers would
not be valid.
In U.S. v. Grace ,34 the Court invalidated a federal statute prohibiting any person from displaying on
public sidewalks surrounding the Supreme Court building "any flag, banner or device designed to
bring into public notice any party, organisation, or movement. It was held that "public sidewalks"
forming the perimeter of the Supreme Court building are "public forums" and that the Governments'
ability to restrict expression in such places is very limited. The Court further held that relevant statute
could not be justified as a "means to maintain proper order and decorum" near the Supreme Court for
a total ban was not necessary to achieve those ends and the restriction could not be justified as a
means to prevent the appearance that the Supreme Court is subject to outside influence, for, the
restriction did not "sufficiently serve" that purpose "to sustain its validity".
In Adderly v. Florida ,35 it was held that State no less than a private owned property has power to
preserve the property under its control for the use to which it is lawfully dedicated. The U.S.
Constitution does not forbid a State to control the use of its own property or its own lawful
discriminatory purpose and the demonstrations have no constitutional right to stay on the property. As
such the freedom of speech and assembly of the demonstrations are not violated. It was held that
right does not include the right to block the vehicular passage meant for the jail authority. In that case,
some students held a demonstration in front jail entrance and sat on the entrance thus preventing
vehicular traffic. It was held that the demonstration and the prevention of traffic was illegal and the
conviction was upheld.
It was further held in that case that a public property need not be a public forum. It has to be a
traditional or designated public fourm. The above decision was followed in Green v. Spock ,36 where
some military regulation was challenged as violative of the First Amendment. The contention was that
whenever members of public are permitted freely to visit the place owned or operated by the
Government, then that place becomes a "public forum". The contention was rejected.
In International Society for Krishna Consciousness v. Lee 37 and Lee v. International Society for
Krishna Consciousness ,38 the Court upheld a ban on solicitation of money in airport terminals and
voided a ban on the sale or distribution of literature in airports. Court ruled that airports were not public
fora because "given the lateness with which modern air terminal has made its appearance, it "hardly
qualifies" as a traditional public forum. Nor have airports "generally been intentionally opened" to
speech.
Internet access in public libraries is not public forum. Such access is neither a traditional, nor a
designated public forum. First, this resource - which did not exist until quite recently - has not been
immemorially been held in trust for the use of the public and time out of mind been used for purpose of
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assembly, communication of thought between citizens and discussing public questions. Nor does
internet access in a public library satisfy the definition of designated public forum. The Court said that
to create such a forum, Government must make an affirmative choice to open up its property for use
as a public forum. A public library does not acquire Internet terminals in order to create a public forum
for web publishers to express themselves any more than it collects books in order to provide a public
forum for the authors of book to speak.39
On the other hand,--
The special feature of a public place or State-owned property is that the State is entitled to preserve
the property under its control for the use to which it is lawfully dedicated. 40

39b)  When, therefore, a person seeks to exercise his freedom of speech on a

public forum, the Court has to balance the above two conflicting interests, having regard
to the nature of the forum41 and the use the person wants to make of it, for exercising his
freedom of expression.42 In that case, the Court upheld an executive order by which only
certain tax-exempt charitable organisations were permitted to participate in a co-
ordinated charity drive directed at federal employees during working hours. Legal and
political advocacy groups were expressly barred. The Court concluded that charity drive
was a non-public forum because there was no traditional access right and the
Government had opened its workplace to limited charitable solicitation "not to provide an
open forum, but to minimise the disruption to the work place by lessening the amount in
expressive activity. The Government's intention was critical i.e., it did not intend to
dedicate its property for speech purposes.43
The right of the individual is the highest where the public place, like the public streets and parks, have
been traditionally devoted to assembly and debate. 44
At one time, the court agreed with the view expressed by JUSTICE HOLMES, when he was a member
of Massachusetts's Supreme Judicial Court "For the legislature to forbid public speaking in a highway
or public park is no more an infringement of the right of a member of the public than for the owner of a
private house to forbid it in his house".45 That was repudiated by a dictum in Hague v. CIO 46 that
spawned the public forum doctrine. The Court held: "Wherever the title to streets and parks may rest,
they have immemorially been held in trust for the use of the public and, time out of mind, have been
used for the purpose of assembly, communicating thoughts between citizens and discussing public
questions. Such use of the streets and public places has, from ancient times, been a part of privileges,
immunities, rights and liberties of citizens".
In that case (Hague's case), an ordinance was held void on its face because it provided for previous
administrative censorship of the right to exercise, right to speech and assembly in appropriate public
places. The ordinance did not purport to licence distribution, but all of them totally prohibited it in the
streets and one of them in other public places as well. It was observed that wherever the titles of
streets and parks may rest, they have immemorially been held in trust for the use of the public and,
time out of mind, have been used for the purpose of assembly, communicating thoughts between
citizen and discussing public question. Such use of the street and public place from ancient time has
been part of the privileged immunities, rights and liberties of the citizen. The privilege of a citizen to
use the streets and public places, parks for communication of views on national question may be
regulated in the interest of all. It is not absolute, but relative and must be exercised in subordination to
the general comfort and convenience and in consonance with peace and good order, but it must not,
in the guise of regulation, be abridged or denied. 47
Hence, as regards public streets, sidewalks and parks the scope of permissible restriction is very
limited;48 thus--

37i)  Government may impose reasonable time, place and manner regulations49
upon expressive act ivities as long as the restrictions are 'content neutral', and are
narrowly tailored to serve a significant Government interest, and leave open alternative
channels of communication. But--
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35ii)  Additional restrictions, such as an absolute prohibition on a particular type of

expression, will be upheld only if narrowly drawn to accomplish a compelling
Governmental interest.50
(b) In the case of any other public place, the right of the individual to use it as a public forum would
depend upon the dedication or designation of the place by the Government for use by the public at
large for assembly and speech.51
In U.S. v. Kokinda ,52 a regulation prohibiting soliciting contribution "on postal premises" was held
invalid. The sidewalk was entirely the property of postal services and the same was the sole means by
which the customers could reach office building. It was held that solicitation is inherently destructive of
the postal service business, because it impedes the normal flow of traffic and is more intrusive and
intimidating than an encounter with a person giving out information. It was held that the regulation was
reasonable.
Such right cannot be claimed simply because the property is owned or controlled by the Government 53
or because of the inaction of the Government. The intention of the Government must be proved by
evidence54 and the nature or extent of the use by the public will be limited by such intention as
proved.55
The Court would be reluctant to infer any such intention on the part of the Government to create a
public forum in the case where Governmental interest is high in using the property to uses other than
as a public forum e.g., a military installation56 or jail property.57
In Members of City Council of Los Angeles v. Tax Payers for Vincent ,58 the Supreme Court upheld Los
Angeles ordinance prohibiting the posting of signs on public property applied to individual to tie
political campaign signs to public utility poles. It was held that the ordinance diminishes the total
quantity of appellant's communications in the city; but the State may curtail speech in a contained
neutral manner for which restriction furthers an importance of substantial Governmental interest and if
the restriction on the free speech is greater than is essential to furtherance of that interest. It was
undisputed that the problem which was sought to be faced by the audience is that the visual assault
on citizens presented by an accommodation of sign post on public property, which constitute a
significant substantial evil. By banning these signs, the authority did no more than eliminate the exact
sources of evils it had sought to remedy. The contention that public property covered by ordinance
was a 'public forum' was rejected as they failed to demonstrate the existence of traditional right of
access respecting such item as utility poles for the purpose of communication comparable to that
recognised for public streets and parks. It was held that the mere fact that the Government property
can be used as a vehicle for communication does not mean that the Constitution requires such use to
be permitted.
In US Postal Service v. Council of Greenburgh Civic Association ,59 the Court upheld a federal statute
prohibiting the deposit of unstamped "mailable matter" in a letter box approved by Postal Service, as
applied to Association which routinely delivered its messages by placing unstamped notices in the
letter boxes of private homes. Court said that there is neither historical nor constitutional support for
the characterisation of a letter box as a public forum. Merely because it will be more convenient or
efficient to place their messages in letter boxes, there is a first amendment right to do so. The Court
reiterated that property owned or controlled by Government which is not a public forum may be
subject to a prohibition of speech, leafleting, picketing or other forms of communication without
running afoul of the First Amendment. The Court also said while upholding the statute that the
Government must act reasonably in imposing the restrictions and the prohibition must be content
neutral.
Where the property is held to be a public forum, only reasonable regulation of the exercise of the
freedom of speech would be justified while there will be no violation of the freedom if access is denied
to a Government property which does not constitute a 'public forum'. 60
The American Supreme Court61 has held that a military base or airport cannot be allowed to be used
as a public forum.
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The question as to a civil airport has not yet come up before the Supreme Court. Of course, the
Federal Court of Appeal62 has held that an airport terminal building should be regarded as a public
forum open to 'First Amendment act ivity'.
In Marsh v. Alabama ,63 the Court considered the question whether a State could constitutionally
"impose criminal punishment" on a person who undertakes to distribute religious literature on the
premises of a company-owned town contrary to the wishes of town's management. The town known
as Chickasaw in Alabama was owned by a company Gulf Shipbuilding Corpn. The town was freely
used by public and there was nothing to distinguish it from any other town property except the fact that
title to the property belonged to a private corporation. Appellant, "a Jehowah's Witnesses" attempted
to distribute literature on one of the town's side walks. She was informed that pursuant to a formal
corporative policy, she could not distribute literature without a permit and that no permit would be
issued to her. She was convicted when she refused to leave on the ground of having violated a State
statute prohibiting any person to enter or remain on the premises of another after having been warned
to do so. The Supreme Court set aside the conviction. The court did not accept the contention that
corporation's right to control the inhabitant of the town is coextensive with the right of a home-owner to
regulate the conduct of his guests. The Court said that ownership does not always mean absolute
dominion. The more an owner, for his advantage opens up his property for use of the public in
general, the more do his rights become circumscribed by the statutory and constitutional rights of
those who use it. In our view, the circumstance that the property rights to the premises where the
deprivation of liberty, here involved took place were held by others than the public is not sufficient to
justify the State permitting a corporation to govern a community of citizens so as to restrict their
fundamental liberties and enforcement of such restraints by the application of a State statute.
In Food Employees Local 590 v. Logan Valley Plaza ,64 the Court held that a peaceful labour picketing
of a business enterprises "within the shopping center" cannot be constitutionally prohibited by the
owner of the plaza. The decision was overruled in Hudgems v. NLRB .65 While overruling the decision,
the court said: "The court has said that the First Amendment is not implicated in cases like Hudgems
(supra) because no Government regulation of speech is involved. All that has happened is that private
property owners have barred people from their land. But this is a poor way of understanding the
situation. The owners of shopping center are able to exclude the protesters only because Government
has conferred on them a legal right to do so. The conferment of that right is an exercise of State
power. It is this action that restricts the speech of the protesters. Surely, it is a real question whether
the grant of exclusionary power violates the First Amendment".
Canada
But the better view appears to have been taken by a dissenting judge of the Canadian Federal Court
of Appeal,66 that Government has the right to control the use of an airport owned by the Government
and that a member of the public has the right to use it only for such purposes for which the
Government opens it to the public.
An airport cannot be likened to a street, if a fairground cannot; 67 or just as the city transit system's
rental space open for commercial advertising cannot be allowed for political advertising. 68
Greer v. Spock ,69upheld the regulation which prohibits demonstration, picketing, sit-in protest
marches, political speeches and similar act ivities on the Fort Dix Military Reservation. It was held that
the regulation reflects "a considered policy, objectively and even-handedly applied of keeping official
military activities free from entanglement with partisan and political campaigns of any kind nor to
insulate military from the reality and appearance of act ing as a handmaiden for parties and political
causes of candidates".
In regard to Government properties in India, the law is that the Government has got the right to enjoy
their properties in the same manner as any private individual may do subject only to such restriction
as the law or the usage may place on them. Hence a direction or order by the General Manager of
Railway Board, who is the custodian of all railway properties, prohibiting holding of meetings within
railway premises was held valid. It was held that there is no fundamental right for anyone to hold
meetings in Government premises. The fact that those who work in office can go there does not
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confer on them the right of holding a meeting in that office even if be the most convenient place to do
so.70
Distribution of literature
I. As to distribution of literature in public places, a distinction appears to have been made between
commercial and non-commercial literature. Thus,
As regard handbills and other advertising (commercial) literature, it has been held that their
distribution on the streets may be prohibited, even though such literature may contain some matter of
non-commercial nature.71
But a similar prohibition or even a requirement of prior permission from the appropriate authority 72 is
invalid, if it relates to "literature of any kind" 73 or offers no standard to guide the discretion of the permit
issuing authority.74 Such restriction cannot be justified on the ground of prevention of littering of the
streets; the proper remedy for littering would be to punish those who actually throw paper on the
streets,75 and not to prohibit dissemination of information on the streets which are a 'natural and proper
place' for such purpose.76 A municipality cannot prohibit the dissemination of ideas, in an orderly
fashion, on the streets, on the ground that the municipality holds the legal title in the streets. 77
The distribution of literature containing religious or political ideas on the public streets 78 can thus be
neither prohibited, censored nor subjected to a permit to be issued by an official at his will or to the
payment of a license tax.79
In Martin v. City of Struthers ,80 Court declared an ordinance prohibiting any person to ring the door bell
or otherwise summon of any residence for the purpose of distributing handbills as invalid. It was held
that freedom to distribute information to every citizen whenever he desires to receive it is so clearly
vital to the preservation of free society that putting aside reasonable police and health regulation of
time and manner of distribution, it must be fully preserved. American law punishes persons who enter
into property of another after having been warned by owner to keep off. A law can be passed making it
an offence for any person to ring the bell of a householder which has apparently indicated that he is
unwilling to be disturbed. The ordinance was held to be a naked restriction of the disseminating idea
which is a constitutionally protected right.
Speech
II. As to right of speaking at public places, it has been held that the right is not absolute but must be
reconciled with the comfort and convenience81 of the general public who are entitled to use those
places. Hence, assemblies on streets and parks may be regulated in the interests of the general
comfort and convenience,82 or of public peace and tranquillity,83 provided the standard84 for the
administrative regulation is laid down in the law. Provided there is a definite and legitimate standard,
"the hours and place of public discussion may be controlled".85
In Kovacs v. Cooper ,86 validity of an ordinance prohibiting any person to use any sound track or other
instrument that emits "loud and raucous voice" on public street was upheld. Though streets are public
places for free expression or exchange of ideas, it does not mean that this freedom is beyond control.
It was held that it was a permissible exercise of legislative discretion to bar sound tracks amplified to a
loud or raucous volume from public ways of municipalities. The right to free speech though
guaranteed cannot mean that Legislature or the Constitution has disregarded citizen's right to comfort
and convenience. Any disregard to that right was held to be harsh and arbitrary. It was held that there
is a need for reasonable protection in the home and business houses from distracting noise from
vehicles equipped with sound amplifying devices, to justify such an ordinance prohibiting
loudspeakers and other instruments. Reasonable restriction on the volume of sound or the hours
during which an amplifier may be used does not infringe the guaranteed free speech, though there
cannot be any absolute prohibition on the use of amplifier.
Our Supreme Court has held that recognition of the right to speech or expression is recognition
accorded to human faculty. The right belongs to human personality and not to a mechanical device.
One may put his faculties to reasonable use, but he cannot put his machines to any use he likes and
cannot use the machines to injure others. No mechanical device can be upgraded to a human faculty.
 297

A computer or a robot cannot be conferred the right under Art. 19(1)(a), though it may be useful to
man to expose or express his faculties. The use of a loudspeaker may be incidental to the exercise of
the right, but its use is not a right or part of a right. It was held that no one can indulge in aural
aggression. If anyone increases the volume of his speech and that too with the assistance of artificial
devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or
obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable
and pollution free life guaranteed by Art. 21. Article 19(1)(a) cannot be pressed into service for
defeating the fundamental right under Art. 21. It was held that right to speak implies right to silence. 87
In Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association ,88 it was held
that in the name of religion no body can be permitted to make use of amplifier or beating of drums,
thus disturbing peace of others. In that case, Court prohibited the use of microphone between 10 P.M.
to 6 A.M. It was held that guaranteed right to speech must be consistent with the enjoyment of rights
of others. The decision of Calcutta High Court in Om Birangana Religious Society v. State ,89 was
approved. In Ward v. Rock ,90 the Court upheld a New York City Regulation requiring the use of city-
provided sound system and technicians for concerts in parks. The principal justification for the
regulation was the city's desire to control noise levels to avoid undue intrusion into other areas of park
and other residential areas. The Court said that Government clearly has a substantial interest in
protecting its citizens from unwelcome noise and the regulation clearly leaves open ample alternative
channels of communication. In Madsen v. Women's Health Center Inc .,91 an injunction prohibiting
demonstrations, use of amplifiers singing, chanting, whistling, shouting, yelling, use of noise near the
clinic, use of auto horns was justified by the Supreme Court on the ground that noise control is
particularly important around hospitals and medical facilities. 92
Demonstration before a school while in session was held to disturb peace and good order of such
school. It was held that the right to an undisturbed school session conducive to students' learning is to
be preserved and nothing which materially disturbs the classes could be protected. It was held that
such prohibition does not offend the First and Fourth Amendments to the U.S. Constitution. 93It was
held therein that it is the nature of a place, the pattern of its normal act ivities that dictates the kinds of
regulation of time, place and manner that are reasonable. The crucial question is whether the manner
of expression is basically incompatible with the normal activity of a particular place at a particular time.
Though the regulation must be narrowly tailored to further State's legitimate interest, this ordinance is
narrowly tailored to further the city's compelling interest in having an uninterrupted school session
conducive to the students' learning. A legislation which prohibits demonstration, though in a public
way, but in front of a private residence house, is valid since right to privacy is affected. 94
But the Court has made a distinction between the requirement of prior permission in the nature of
censorship and subsequent punishment. Thus, the Court has invalidated a law which authorised a
police authority to refuse permit to a meeting in a public place on his mere opinion that such refusal
would prevent riots or disturbances,95 though it would uphold the punishment of those found guilty of
disturbing the public peace.96 To place the freedom of speech or assembly at the unfettered discretion
of the administrative authority to issue a permit is virtual censorship. 97 If, however, a standard is laid
down in the law for the guidance of the licensing authority, e.g., the necessity for control of traffic,1 or
prevention of injury to the religious susceptibilities of others, 2 the court would uphold the validity of a
law which prohibits parades and processions along public streets without obtaining a licence, on
payment of a licence fee which was graduated according to the size of that parade and the expense of
policing it.3 But the State may not impose a flat licence tax as a condition to the pursuit of act ivities
whose enjoyment is guaranteed by First Amendment, where the tax is not a nominal fee imposed as a
regulatory measure to defray the expenses of policing the activities. 4
But even in such cases the licensing would be upheld only if the standards governing the licensing
authority are objective, definite, and non-discriminatory. 5
Such regulation should not be 'undue' and must not be an absolute prohibition. 6 Thus, a statute which
prohibited the making of speeches7 or the distribution of literature anywhere (whether on private or
public property) or at any time without a permit,8 was held unconstitutional as a denial of the freedom
of speech.
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Secondly the regulation must be restricted in its application with respect to time or place or the like9
and must have a substantial relation to the maintenance of public order, 10 prevention of public
inconvenience and similar grounds upon which the freedom may be legitimately regulated. 11"It must
not, in the guise of regulation, be abridged or denied". 12 Thus, a public park authority cannot refuse
permit to hold public demonstration in the public, but would be justified in prohibiting camping or
sleeping in the park.13
It follows that the regulation cannot be resorted to avert "a relatively trivial harm to society". 14 Thus, the
distribution of literature in a public place, cannot be subjected to licensing merely for the purpose of
keeping the streets clean of litter. 15 In Schneider'scase, the court said that the legislation under attack
is designed to prevent littering. Although the alleged offenders were not charged with themselves
scattering papers in the streets, their convictions were sustained (by lower court) because upon the
theory that distribution by them resulted in such littering. We are of opinion that the purpose to keep
the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a
person rightfully on a public street from handing literature to one willing to receive it. Any burden
imposed upon the city authorities to cleaning and caring of the streets as an indirect consequence of
such distribution results from the constitutional protection on the freedom of speech and press. This
constitutional protection does not deprive a city of all powers to prevent street littering and there are
obvious methods of preventing littering. Amongst those is the punishment of those who act ually throw
papers on the streets. An argument was also made to support the validity of ordinance since its
operation is limited to streets and allays fear and leave persons free to distribute printed matters in
other places. The Court said that streets are natural and proper places for the dissemination of
information and opinion and one is not to have the exercise of his liberty of expression in appropriate
places abridged on the plea that it may be exercised in some other place.
Even where it is otherwise justified, censorship or prior restraint of any form must be preceded by a
judicial determination that the material is not protected by the freedom of expression, subject of
course, to the Court's power to issue a temporary injunction to maintain status quo pending such
determination.16
Where the above-mentioned justification and safeguards are absent the Court would strike down even
informal or indirect modes of censorship or prior restraint, e.g.--

38a)  By classifying the medium of expression as 'suitable' and 'not suitable' for
young persons, and by subjecting the latter class to special licensing to which the former
class would be, exempt.17
40b)  By reviewing materials 'manifestly tending to the corruption of the youth' and
trying to restrain them by persuasion or exhortation. 18
Subject to the foregoing conditions, the following have been considered legitimate grounds for prior
restraint or regulation--

38i)  Rights of individuals in surrounding areas being injured by reason of noise

or any other aspect of the exercise of the freedom of expression sought to be
protected.19
36ii)  Right of a 'captive audience', not to 'listen' being affected. 20
India
(B) India.--In India, there are certain laws which provide for the licensing of meetings on public
thoroughfares. But a power to prohibit any meeting likely to cause a breach of the peace is given to
the administrative authorities by the Prevention of Seditious Meetings Act , 1911, whether such
meeting takes place at a public or at a private place, and once an area has been declared by the
Government to be a 'proclaimed area', no public meeting likely to cause disturbance of peace can be
held within such area without notice to the specified administrative authorities.
While permitting holding of a meeting organised by groups or an individual which is likely to disturb
peace, tranquillity and orderliness, irrespective of the name, cover and methodology, it may assume
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and adopt, the administration has a duty to find out who the speakers and participants are and also
take into account previous instances and the antecedents involving or concerning those persons. If
they feel that the presence or participation of any person in the meeting or congregation would be
objectionable, for some patent or latent reasons as well as past track record of such happenings in
other places involving such participants, necessary prohibitory orders can be passed. Quick decisions
and swift as well as effective act ion necessitated in such cases may not justify or permit the
authorities to give prior opportunity or consideration at length of the pros and cons. The imminent
need to interfere instantly having regard to the sensitivity and perniciously perilous consequences, it
may result in if not prevented forthwith, cannot be lost sight of.
It is imperative that if any individual or group of persons by their action or caustic and inflammatory
speech are bent upon sowing seeds of mutual hatred, and their proposed act ivities are likely to create
disharmony and disturb the equilibrium, sacrificing public peace and tranquillity, strong action and
more so preventive act ions are essentially and vitally needed to be taken. Whenever the authorities
concerned in charge of law and order find that a person's speeches or actions are likely to trigger
communal antagonism and hatred resulting in fissiparous tendencies gaining a foothold, undermining
and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively
assert such untoward happenings. Any speech or act ion which is likely to affect this secular nature of
our Constitution, and which is a basic feature, can be prevented by invoking the provisions of s. 144
of the Code of Criminal Procedure .21 The right to hold meetings in public places is subject to control
of the appropriate authority regarding the time and place of the meeting. Orders temporary in nature
can be passed to prohibit meetings or to prevent an imminent breach of peace. Such orders constitute
reasonable restriction upon freedom of speech and expression. The content is not the only concern of
controlling authority, but the time and place of the meeting is also well within the jurisdiction. If the
authority anticipates imminent threat to public order or public tranquility, it would be free to pass
desirable direction within the parameters of reasonable restriction on the freedom of an individual. 22
The constitutionality of such laws will be discussed under the freedom of assembly [see Art. 19(1)(b)
post].
Distribution of literature or solicitation at private places
U.S.A.
(A) U.S.A.--As to the right of distributing literature from door to door, it has been held that
reasonableness of a restriction depends "upon a balancing of the conveniences between some
householder's desire for privacy and the publisher's right to distribute publications in the precise way
that, those soliciting for him think, brings the best result". 23 Hence, a distinction between commercial
and non-commercial propaganda has been made.
While the constitutionality of a law which prohibited house to house solicitation for subscription for
commercial magazines24 or commercial canvassing of other kinds25 has been upheld, a similar
prohibition26 or requirement of permit27 relating to the distribution of religious literature has been
annulled on the ground of interference with the freedoms of speech and of religion. Even the
imposition of a tax upon the privilege of door-to-door sale of religious literature has been invalidated. 28
The reason for this differentiation in the latter case is that--
"When we balance the constitutional rights of owners of property against those of the people to enjoy
freedom of press and religion... we remain mindful of the fact that the latter occupy a preferred
position".29 In that case, the Court said that it cannot agree with the contention that the corporation's
property interest (as title holder) settles the question. The submission in effect means, corporation's
right to control the inhabitant is co-extensive with the right of home owner to regulate the conduct of
his guest. The Court said that ownership does not always mean absolute dominion. The more an
owner, for his advantage opens his property for the use of the public in general, the more do his rights
become circumscribed by statutory and constitutional right of those who use it. Whether the
corporation or municipality owns or possesses the town, the public in either case has an identical
interest in the functioning of the community in such manner that channels of communication remain
free. It was also held that though title to property as defined by State law controls property relation, it
cannot control issues of civil liberties.
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As regards commercial literature, it has also been held that a vendor does not have a constitutional
right to send unwanted materials to someone's home, and a matter's right to communicate must stop
at the mailbox of an unreceptive addressee.30 The Court further added: "The power of a house-holder
under the statute is unlimited. Congress provided that sweeping power not only to protect privacy but
to avoid possible constitutional question that might arise from vesting discretionary power in a
governmental official".
India
(B) India.--The observations of the Supreme Court in the Railway Board case,31 have established that
any of the fundamental rights enumerated in Art. 19(l) can not be exercised on private property, even
though the ownership thereof belongs to the Government:
"The fact that citizens of this country have freedom of speech, freedom to assemble peaceably and
freedom to form associations or unions does not mean that they can exercise those freedoms in
whatever place they please. The exercise of those freedoms will come to an end as soon as the right
of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those
rights. The validity of that limitation is not to be judged by the tests prescribed by sub-articles (2) and
(3) of Art. 19. In other words. the contents of the freedoms guaranteed under Cls. (a), (b) and (c) [of
Art. 19(1)]... do not include the right to exercise them in the properties belonging to others. If Mr. Garg
(for the Respondent) is (were) right in his contentions then a citizen of this country in the exercise of
his right under Cls. (d) and (e) of Art. 19(l) could move about freely in a public office or even reside
there unless there exists some law imposing reasonable restrictions on the exercise of those rights". 32
The observations of the Author at Art. 19(2) of this Commentary that the exercise of a fundamental
right is not only subject to the restrictions authorised by the limitation clauses of Art. 19 but also
circumscribed by the exercise by other persons of the same or other fundamental right and that in
case of any conflict between such competing rights, it should be the duty of the Court to harmonise
them, have thus come to be upheld by the Supreme Court. 33
Broadcasting of Information by Loudspeakers
The broadcasting of information by amplifiers, radio and other devices is no doubt a medium of the
freedom of expression34 but it has a peculiarity apart from the hand to hand distribution of literature. A
person who receives a literature may not read it if he is not so inclined, but the audience of a
loudspeaking device has no such choice. Further, amplifying devices cause some degree of
interference with the business or social activities of the neighbouring people or the quiet they would
like to enjoy,35 and a satisfactory reconciliation of the conflicting interests of the public and of the
individual who seeks to exercise his freedom of speech through sound amplification is difficult.
U.S.A.
(A) U.S.A.--The decisions on this point are not so far logically coherent.
It has been held that the State cannot prohibit the use of amplifiers in public places except on a permit
to be issued at the discretion of the prescribed authority, because it would constitute a violation of the
First Amendment as applied to religious or other legitimate information. 36 Similarly unconstitutional
would be a total prohibition of all sound amplification in a municipal area. 37
At the same time, the peculiarities of this medium of expression call for the application of different
standards38 and regulation. Thus, the use of amplifiers emitting 'loud and raucous noise' can be
altogether prohibited in public streets,39 holding that the expression 'loud and raucous' gave a
sufficiently definite standard for the application of the law, and the interests of the public in the use of
the public streets was of sufficient importance to justify such prohibition of a particular medium of
expression in such places.
It was held in Kovacs v. Cooper ,40 that right to speech is guaranteed to every citizen that he may
reach the mind of willing listeners, and to do so, there must be an opportunity to win their attention.
But this freedom of speech does not require legislation to be insensible to claim by citizens to comfort
and convenience. To enforce such freedom of speech in disregard of the right of others would be
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harsh and arbitrary in itself. That more people may be more easily and cheaply reached by sound
tracks is not enough to protect that right. The ordinance imposing "total prohibition" on use of sound
track or other instrument which emits loud and raucous noise does not restrict the communication of
ideas or discussion of issue of human voice, by newspapers, by pamphlets, by doggers. There was a
need for reasonable protection in the homes and business houses from distracting noise from vehicles
equipped with sound amplifying devices to justify such an ordinance prohibiting loudspeaker and other
instruments. It was further held that the modern devices for amplifying the range and volume or the
voice afford easy, very easy, opportunity for aural aggression. If uncontrolled, the result is intrusion at
the cherished privation. Surely there is not a constitutional right to force unwilling people to listen by
persons who use instruments that emits loud and raucous noise. It was held by majority that though
absolute ban or prohibition from using loudspeakers may not be valid, but still reasonable restriction
can be imposed, i.e., by stipulating restricted volume of sound or the hours during which an amplifier
may be used. Similarly, the right of free speech of a broadcast does not embrace a right to snuff out
the free speech of others.41
In V. Rock Against Racism,42 the court upheld a New York City regulation requiring the use of city --
provided sound systems and technicians for concerts. The principal justification for the regulation was
the citys desire to control noise levels to avoid undue intrusion into other areas of the park and other
residential areas. It was held that the Government clearly has a substantial interest in protecting its
citizens from unwelcome noise and that the regulation clearly leaves open ample alternative channels
of communication.43
Re-affirming the principle in V. Rock against Racism case (supra) that time, place and manner
restrictions on speech do not trigger the more intense judicial scrutiny required of content based
regulation, Supreme Court in Thomas v. Chicago Park District 44unanimously upheld an ordinance
requiring any assembly, parade, picnic or events involving more than fifty people or any event emitting
amplified sound to obtain permit first. Regulation provided that completed application which will be
processed in the order of receipt, has to be accepted or denied within a time-frame and required
reason to be given by the authorities for any extended consideration or denial of application. The
authorities were given eleven grounds on which alone they could exercise their discretion while
disposing the application. The court held that these grounds sufficiently circumscribed the authorities
while exercising discretion and all applied across the board to all act ivities conducted in public parks,
so that the decision making did not have anything to do with what a speaker might say. Since the
object of permit system was not to exclude communication of a particular content, but to co-ordinate
multiple uses of limited space, to assure preservation of park facilities, to prevent uses that are
dangerous or unlawful and to assure financial accountability for damage caused by the event, stiffer
procedural requirements and heightened judicial scrutiny necessary for system of prior restraint has
no application.
Government may not regulate speech based on substantive content or the message that convey. In
the realm of private speech or expression, Government regulation may not favour one speaker over
another. Discrimination against speech because of its message is presumed to be unconstitutional.
Government offends the First Amendment when it imposes financial burden on certain speakers on
the content of their expression.45
On the other hand, it has been held that a passenger travelling in a public conveyance cannot
complain of the invasion of his liberty guaranteed by the Fifth Amendment, by the broadcasting of
radio programmes (against his liking) in the conveyance. 46
In that case, the court said: "The man on the street corner has no choice but to sit and listen or
perhaps to sit and try not listen". There is no difference when the message is visual, not auricular. In
each, the viewer or listener is captive".
The Court has thus made a distinction between one's home a public thoroughfare and a public vehicle
and applied different standards of privacy, comfort and need for regulation.
Another peculiarity of radio broadcasting is that there are more people who want to broadcast than
there are frequencies to allocate. The power of the State to license its use and to eliminate existing
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stations does not, therefore, violate the freedom of expression. 47 If follows that no one has a
fundamental right to a broadcasting licence or to monopolise radio frequency. 48
Why should broadcast receive less protection? The Court says that broadcast invades privacy of the
home and is uniquely accessible to children. It is sometimes said that broadcast spectrum is a scarce
public resource - given the finite and narrow band of available broadcast frequencies, Government
regulation and licensing is essential to avoid chaos of multiple signals on the same frequency. As a
result, broadcast licensees are holders of a unique public trust that requires greater accountability for
their use of the airwaves.49
Again, though licensing can be granted only in favour of a few, the people as a whole retain their
interest in free speech by radio and their collective right to have the medium function consistently with
the ends and purposes of the First Amendment. "It is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount" in the matter of use of this medium of expression. 50 It is,
therefore, legitimate for the State to require from the broadcasters that they should give fair coverage
to each side of the public issues which are boradcasted, or that they should not indulge in personal
attack without giving an opportunity of reply to the person who is attacked. 51
The licensing of the right to operate a private broadcasting station has been upheld. 52
But as regards censorship of the programme, different results have been arrived at on the basis of the
'commerce power' of Congress, provided, of course, the object of regulation is to prevent commercial
practices injurious to the public interests and the licensing power is not exercised on any capricious
basis, e.g. to choose amongst the applicants on the basis of their social, political 53 or other views.54 The
Court said that Government licences did not violate First Amendment, unlike other modes of
expression, radios inherently is not available to all. In considering the grant of licence, following
considerations are relevant. In making its licensing decision between competing applicants, the
Commission has long given "primary significance" to diversification of control of the media of mass
communication. This policy is consistent with the statutory scheme and with the First Amendment goal
of achieving "the widest possible dissemination of information" from diverse and antagonistic sources;
petitioner argue that the regulations are invalid because they seriously restrict the opportunities of
expression of both broadcasters and newspapers. To deny a station licence because public interest
requires it is not a denial of free speech. The regulations are reasonable means of promoting the
public interest in diversified mass communication; thus they do not violate the First Amendment right
to those who will be denied broadcasting licence pursuant to them. 55
The Supreme Court has held that since the radio as a means of communication is not available to all,
a regulation of its use by those to whom it is available would not be an abridgement of the freedom of
expression, say by licensing, provided a definite and legitimate standard is laid down by the
Legislature for guidance of the authority.
But as regards censorship of the programme, different results have been arrived at from that in the
case of motion pictures. So far as the Federal Government is concerned, censorship is prohibited by
statute, viz., the Federal Communications Act, 1934, which expressly prohibits the Federal
Communications Commission to exercise any sort of pre-censorship on broadcasts, though it may
take into consideration undesirable broadcasts while granting or renewing licences. 56 In the case of
censorship imposed by a State, it has been invalidated on a different ground than in the case of
freedom of the press, namely, that the radio and television are instrumentalities of inter-State
commerce, so that a pre-censorship would constitute a violation of the "Commerce Clause". 57 Later
view, however, is that suppression of views on public affairs through any media would constitute an
invasion of the freedom of speech guaranteed by the First Amendment. 58
India
(B) India.--Though broadcasting is not nationalised in India and it is possible for private individuals to
possess broadcasting apparatus by obtaining a licence under the Wireless Telegraphy Act, 1933, any
question relating to the censorship of private programmes has not so far come before the Courts.
Broadcasting
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The reason perhaps is that licences to private operators are seldom sought for or issued and
broadcasting is being carried on as a national service by the Ministry of Information and Broadcasting
of the Government of India, through the 'All India Radio', which was formed by taking over of the
industry from a private company which had failed.
The entire law on private broadcasting and its implication was considered in Secretary, Ministry of
Information and Broadcasting v. Cricket Association of Bengal .59 It was held that right to impart and
receive information is a species of the right of freedom of speech and expression guaranteed by Art.
19(1)(a). A citizen has a fundamental right to use the best means of imparting and receiving
information and as such to have an access to telecasting for the purpose. However, this right to have
an access to telecasting has limitation on account of the use of public property, viz., airwaves,
involved in the exercise of the right and can be regulated and controlled by public authority. The
limitation imposed by the nature of the public property in the use of the electronic media is in addition
to the restriction in the right to freedom of speech and expression under Art. 19(2) of the Constitution.
The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a
public authority in the interests of the public and to prevent invasion of their rights. Since electronic
media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the
case of other public property (by SAWANT & MOHAN, JJ.). In the concurring decision by JEEVAN
REDDY, J., it was held that freedom of the broadcaster means freedom from State or Government
control, in particular from the censorship. It implies freedom over selection, content and scheduling of
programme. Broadcasting freedom is to be protected in so far as its exercise promotes the goals of
free speech, i.e., an informed democracy and lively discussion of a variety of views. It was held that
broadcasting media by its very nature is different from press. Airwaves are public property. The fact
that a large number of frequencies or channels are available does not make them anything less public
property. It is the obligation of the State to ensure that they are used for public good. Broadcasting
freedom involves and includes the right of the viewers and listeners and listeners who retain their
interest in free aspect. It is on this basis that European Courts have taken the view that restrains on
"freedom of broadcasters are justifiable on the very ground of free speech" ... It was held that
theoretical foundation for the claim for free access to broadcasting is that freedom of speech means
the freedom to communicate effectively to a mass audience which means through mass media. It was
further observed that in none of the European countries, there is an unregulated right to establish
private radio or television station. It is governed by law. Even in the U.S., it requires a licence from
FCC.
The fact that airwaves are public property establishes that they are to be utilised to the greatest public
good, that they cannot be allowed to be monopolised or hijacked by a few privileged persons or
groups, that granting a licence to everyone who asks for it would reduce the right to nothing and such
a licensing system would end up in creation of oligo polies as experienced in Italy. Similar has been
the experience in U.S. where control of the media came to be restricted only in a few hands leading to
the "market place of ideas" being a monopoly controlled by the owners of the market.
Finally it was held that for the purpose of ensuring free speech rights of citizens, "it is not necessary to
have private broadcasting station. Allowing private broadcasting stations would be opening the door
for powerful economic, commercial and political interests, which may not prove beneficial to free
speech right of the citizen - and certainly so, if strict programme controls and other controls are not
prescribed. The analogy with press is wholly inapt.
It was declared that Art. 19(1)(a) though includes the right to receive and impart education, no one can
claim the fundamental right to do so by using or employing public property. Only when the statute
permits him to use the public property - that only - and subject to such conditions and restrictions as
the law may impose - he can use the public property, viz., airwaves. In other words, Art. 19(1)(a) does
not enable a citizen to impart his information, views and opinions by using the airwaves. He can do so
without using airwaves. Airwaves being public property, must be utilised to advance public good.
There is a far greater likelihood of private broadcasters indulging in misinformation, disinformation and
manipulation of news and views than the Government controlled media, which is atleast subject to
public and Parliamentary scrutiny. The consideration emphasised by Constitutional Courts in the US
and major West European countries - furnish valid grounds against reading into Art. 19(1)(a), a right to
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establish private broadcasting stations, whether permanent, temporary, stationary or mobile. Some
holding good for earth stations and other telecasting equipments. In other words, while public
broadcasting is implicit in Art. 19(1)(a), private broadcasting is not. Freedom of press stands on a
different footing and no claim for private broadcasting licence can be based on freedom of press. It
was observed that airwaves being public property, better it remains in public hands in the interests of
freedom of speech and expression of the citizens of the country.
A Single Judge of the Bombay High Court has held 60 that editing of a Government television interview
which amounts to censorship would be hit by Art. 19(1)(a), in the absence of a law which satisfies the
requirements of cl. (2) of that Article.
As regards loudspeakers, in an Allahabad case,61 the view had been taken that the guarantee of free
speech in Art. 19(l)(a) of our Constitution does not include the freedom to use mechanical appliances.
But, as has been stated earlier, the guarantee of freedom of speech includes the freedom to
communicate ideas through any auditory device. The better view would be, to hold that though a
person has the freedom to use such mechanical appliances, the State has the power to regulate its
use by reasonable restrictions on the ground of public order, inasmuch as the indiscriminate use of
such appliances may constitute a public nuisance and affect the health of the general public. 62
In line with the foregoing observation made at Art. 19 of this commentary, the Gujarat High Court has
upheld the validity of Sections 33(l)(r)(iii) of the Bombay Police Act , 1951, which provides--
"The Commissioner and the District Magistrate, in areas under their respective charges.... may make,
alter or rescind rules or orders not inconsistent with this Act, for....
(r) licensing, controlling or, in order to prevent obstruction, inconvenience, annoyance, risk, danger or
damage of the residents or passengers in the vicinity, prohibiting....
(iii) the using of loudspeakers in or near any public place".
Holding that this provision constitutes a reasonable restriction in the interests of public order, the Court
said--
" It is also obvious that, when people try to take advantage of mechanical devices in the exercise of
the right (of freedom of speech), conflicts of interests are bound to arise. If in the exercise of the right
of free speech, all or a great number of citizens were to gather together at one spot and every one of
them were to make use of a loudspeaker, it is quite obvious that there would be a babble of noises
and not only that none of them would be able to exercise the right of speech, but there may be clash
between individuals and groups; it may distract the pedestrians and motorists and cause a nuisance to
the locality which may lead to a breach of peace... It follows from this that, if power is conferred upon
the Executive by the Legislature for the prevention of such conflicts, dislocations and distractions, the
power must be regarded to be necessary to preserve public order". 63
Our Supreme Court considered the question as to the right of freedom of speech and expression and
use of microphone or loudspeaker. It was held: "Those who make noise often take shelter behind Art.
19(1)(a) pleading the freedom of speech and the right to expression. Undoubtedly the freedom of
speech and right to expression are fundamental rights, but the rights are not absolute. Nobody can
claim a fundamental right to create noise by amplifying the sound by his speech with the help of
loudspeakers. While one has a right to speak, others have a right to listen or decline to listen. Nobody
can be compelled to listen and nobody can claim that he has a right to make his voice trespass into
the ears or mind of others. Nobody can indulge in aural aggression. If anyone increases his volume of
speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling
persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is
violating the rights of others to a peaceful, comfortable and pollution free life guaranteed by Art. 21.
Art. 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed under Art.
21.
The right to speech implies a right to silence. It implies freedom, not to listen and not to be forced to
listen. The right comprehends the freedom to be free from what one desires to be free from. Free
speech is not to be treated as a promise to everyone with opinion and beliefs, to gather at any place
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and at any time and express their views in any manner. The right is subordinate to peace and order. A
person can decline to read a publication, or switch off a radio or a television set. But he cannot
prevent the sound from a loudspeaker reacting him. He could be forced to hear what he wishes not to
hear. That will be an invasion of his right to be let alone, to hear what he wants to hear or not to hear
what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of
another. No one has a right to trespass on the mind or ear of another and commit auricular or visual
aggression. A loudspeaker is mechanical device and it has no mind or thought process. Recognition of
the right to speech or expression is recognition accorded to a human faculty. A right belongs to human
personality and not to a mechanical device. One may put his faculties to reasonable uses. But he
cannot put his machines to any use as he likes. He cannot use his machines to injure others.
Intervention with a machine is not intervention with or invasion of a human faculty or right. No
mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conferred
the right under Art. 19 (though they may be useful to man to express his faculties). No more a
loudspeaker. The use of a loudspeaker may be incidental to the exercise of the right. But its use is not
a matter of right or part of the right. In that case, Supreme Court gave certain directions regarding the
use of loudspeakers, i.e., the volume of sound and time during which it could be used. 64
In Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association ,65 it was held
that no religion prescribes that prayers should be performed by disturbing the peace of others nor
does it preach that they should be through voice amplifiers or beating the drums. Approving the
decision of the Calcutta High Court in Om Birangana Religious Society v. State ,66 it was observed that
though one can practise, profess and propagate religion as guaranteed under Art. 25(1), the same is
not an absolute right. The provision of Art. 25 is subject to the provision of Art. 19(1)(a). It was held
that a citizen should not be coerced to hear which he does not like to hear. When no religion
prescribes or preaches that prayers are required to be performed through sound amplifiers, or by
beating drums, any such act should not adversely affect the right of others including that of being not
disturbed in their act ivities. It was observed that a particular fundamental right cannot exist in isolation
in a watertight compartment. One fundamental right of a person may have to co-exist in harmony with
the exercise of another fundamental right by others and also with reasonable and valid exercise of
power by the State in the light of Directive Principles of State Policy, in the interests of social welfare
as a whole. Enjoyment of one's right must be consistent with the enjoyment of rights also by others.
Where in a free play of social forces, it is not possible to bring about a voluntary harmony, the State
has to step in to set right the imbalance between competing interests. 67 Kerala High Court in P.A.
Jacob v. Supt. of Police ,68 dealt with the question of grant of permission to the use of loudspeakers at
public meetings. Court was of the view that sound levels generally caused by loudspeakers
transgresses safe-limits by a wide margin. In K. Venu v. Director General of Police ,69 the petitioner
approached the Court for a mandamus to compel the respondents to permit him to hold a meeting and
also to use loudspeaker. It was held that freedom of expression is subject top public order, morality
and decency and the same cannot be issued or granted without hearing the respondent. Mandamus
was refused. In D. Anantha Prabhu v. District Collector ,70 total ban on the use of mike, loudspeaker at
any time was held as an infringement of Art. 19(1)(a). 71
In Guruvayoor Devaswam v. Supt. of Police ,72 taking into consideration the opinion of expert
committee and Pollution Control Board, it was held that loudspeaker can be used. In Maulana Mufti
Syed Barkati v. State of W.B .,73 the restriction imposed on the use of loudspeakers was upheld. In
Free Legal Aid v. National Capital Territory ,74 was of the opinion that "House of God should be kept
peaceful and noise-free. Permission to hold public meeting in a public place cannot be denied on the
ground that the meeting is a religious meeting".
Raymond v. Cook ,75 was concerned about breach of a byelaw prohibiting the use of "any bell or other
noisy instrument for the purpose of selling any article in any street or public place so as to cause
annoyance to the inhabitants. It was observed: "The proper approach to these cases is for justices to
ask for themselves. (1) Was the instrument no noisy so as to be calculated to annoy? On that, the
facts speak for themselves, or it may be necessary for them to hear evidence, albeit of only one
person; but once they have come to the conclusion that the noise was calculated to annoy, then it is
quite unnecessary for them to have any evidence as to who and how many people were in fact
annoyed".
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Censorship and licensing of dramatic performances

U.S.A.
(A) U.S.A.--A theatre or dramatic performance is the acting out of the written word, or, in other words,
it is speech mixed up with representation or conduct. But, in general, the Supreme Court has not
made any distinction between pure speech and dramatic performance on the sole ground that the
medium of expression is different.76 Thus,
Prior restraint has been held to be prima facie unconstitutional77 and there is a presumption against it
as distinguished from subsequent punishment.78
But even prior restraint may be upheld if--

39a)  The ground for such restraint in the social interest must be of the imminent
type--grossest pornography, incitement to riot or forceful overthrow of orderly
Government.79
41b)  The law which authorises such censorship must define the grounds narrowly
and precisely.80
27c)  The censorship must take place under procedural safeguards designed to
obviate the dangers of a censorship system, viz.,--
A prior judicial determination that the material is not protected by the guarantee of freedom of
expression, the burden of proving which rests on the censor. 81
Of course, the Court may grant a temporary injunction to maintain the status quo pending such
determination.82
In National Endowment for the Arts v. Finley ,83 the Court upheld the facial validity of an amendment to
the funding act for NEA that directed the agency to ensure that "artistic excellence and merit are the
criteria by which 'grant' applications are judged, taking into consideration general standards of
decency and respect for the diverse beliefs and volumes of the American public. The court contended
that Government may allocate competitive funding according to criteria that would be impermissible
where direct regulation of speech or a criminal penalty is at stake. Congress has wide latitude to set
spending priorities. But the Congress may selectively fund a programme to encourage certain
activities it believes to be in the public interest, without at the same time funding an alternative
programme which seeks to deal with the problem in another way. In doing so, the Government has not
discriminated on the basis of viewpoint, it has merely chosen to fund one act ivity to the exclusion of
another. When Government is acting as patron and not as sovereign, the consequences of
imprecision are not constitutionally severe.
U.K.
(B) U.K.--The business of running a theatre is subject to licensing, but since the Theatres Act, 1968,
no condition can be attached to such licence as to the nature of the play, excepting a prohibition of
hypnotism.
As to the performance until 1968, no play could be performed, until the performance of the particular
play had been permitted by a licence granted by the Lord Chamberlain. This pre-censorship of
dramatic performances has been abolishedby the Theatres Act, 1968, leading to a spate of obscene
and perverted demonstrations on the stage.
Theatres are now licensed by local authorities, but only in regard to such matters as public health and
safety. In place of censorship, rules against obscenity similar to those in Obscene Publication Act
1959 are applied to the performance of plays, subject to a defence of public good. Other criminal
restraints placed on theatrical performance are in respect of the use of threatening, abusive or
insulting words or behaviour intended or likely to stir up racial hatred or occasion of breach of peace.
Prosecution for these various offences including obscenity requires consent of the Attorney General in
England and Wales. There may be no prosecution at common law for any offence the essence of
which is that a performance of a play is obscene, indecent, offensive, disgusting or injurious to
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morality, neither may there be prosecution under various statutes relating to indecency. Under s. 2(4)
of the Theatres Act, 1968, there is an important safeguard against moral censorship. However, in
1987, a private prosecution of the director of the National Theatre production of "The Romans in
Britain" was withdrawn after the judge had decided that the Sexual Offences Act 1956 (s. 13 relating to
gross indecency between males) could apply to simulated homosexual act s on stage. 84
India
(C) India.--Apart from the requirement of a business licence for running it professional theatre, the
Dramatic Performances Act , 1876, confers power on the State Government not only to prohibit any
dramatic performance within a specified area, without its licence, but also to prohibit the performance
of any particular drama which, in the opinion of the State Government, is--

40a)  of a scandalous or defamatory nature; or

42b)  likely to excite feelings of disaffection to the Government established by law
in India; or
28c)  likely to deprave and corrupt persons present at the performance.
In short, the latter provision is a form of total prohibition of performances which is, in the subjective
opinion of the Government, scandalous, defamatory, seditious or obscene. There is no provision for
any hearing before such order is made nor any standards offered by the Act for the determination to
be made by the State Government.85 The reasonableness of the restrictions imposed by this old Act,
enacted to suppress anti-Government dramatic performances, is well worth to be challenged. 86
Order prohibiting staging of the drama "Jesus Christ Super Star" in a particular district in Kerala State
was upheld, as the staging of the drama would cause communal disharmony and lead to serious
breach of peace. It was held that reasonable restriction has to be determined in an objective manner
and from the standpoint of the interest of general public and community at large and not from the point
of view of the author of the drama. They have to approach the issue from the standpoint of the
interests of the ordinary common man and not from the standpoint of persons who are well educated
and well informed of men and matters. 87
Censorship of Cinematograph Films
U.S.A.
(A) U.S.A.--Judicial opinion on the subject has been wavering in the United States. In an earlier case, 88
the Court had held that "exhibition of moving pictures was a business pure and simple, originated and
conducted for profit", and was not to be regarded as part of the press of the country or as organ of
public opinion.
But in later cases, the Supreme Court has found the above position untenable inasmuch as freedom
of speech and expression is not taken away by the fact that the medium of the expression is
conducted for private profit89 or the fact that its object is to entertain and not merely to inform.90 It is
now settled that freedom of moving pictures is included in the freedom of speech, 91 in the same way as
newspapers and the radio.
"It cannot be doubted that motion pictures are a significant medium for the communication of ideas.
They may affect public attitudes and behaviour in a variety of ways, ranging from direct espousal of a
political or social doctrine to the subtle shaping of thought which characterises all artistic expression...
That books, newspapers and magazines are published and sold for profit does not prevent them from
being a form of expression whose liberty is safeguarded by the First Amendment. We fail to see why
operation for profit should have any different effect in the case of motion pictures. 92In that case, a New
York statute prohibited the issue of a licence to exhibit a non-obscene motion picture on the ground
that it portrays act s of sexual immorality as desirable, acceptable or proper patterns of behaiour.
Court observed that the State was attempting to prevent the exhibition of a motion picture because
that picture advocates an idea - that adultery under certain circumstances may be proper behaviour.
Yet the First Amendment's basic guarantee is of freedom to advocate ideas. The State quite simply
has thus struck at the heart of constitutionally protected liberty. In response to State's argument that its
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action was justified because the motion picture attractively portrays a relationship which is contrary to
the legal code of citizenry, the court maintained that the State "misconceives what it is that
Constitution projects". The first amendment, the court declared, protects advocacy of the opinion that
adultery may sometimes be proper, no less than an advocacy of socialism or the single tax". Court
explained that advocacy of conduct prescribed by law is not a justification for denying free speech
where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would
be immediately act ed upon.
The current view, therefore, is that though motion pictures may call for social control inasmuch as they
"possess a greater capacity for evil, particularly, among the youth of the community, than other modes
of expression",93 that would not authorise unbridled censorship or previous restraint in the case of
motion pictures, if that is not constitutionally permissible in the case of other media of expression.
While it is not correct to hold that censorship of motion pictures under any circumstances would be
necessarily unconstitutional, it would be permissible only under definite conditions and judicial
review.94
In Time Film Corporation's case (supra), the court turned aside a constitutional attack on Chicago's
movie licensing procedure. In that case, a motion picture distributor challenged city's practice of
examining films before they were shown on the ground that the First Amendment guaranteed freedom
from prior restraint and not because of the obscenity standard the city applied. Court upheld the
practice of submitting the films for examination before they were shown in city's movie theatres.
In Freedman v. Maryland ,95 the court imposed stringent procedural requirements on such beforehand
examination. In that case, the action of State was challenged on the ground that film review was so
extensive, time-consuming and burdensome that it tantamounts to prior restraint. Court said: "We hold
that a non-criminal process which requires the prior submission of a film to a censor avoids
constitutional infirmity only if it takes place under procedural safeguards designed to obviate the
dangers of a censorship system. (1) First, the burden of proving that the film is unprotected expression
must rest on the censor. (2) While the State may require advance submission of all films, in order to
proceed effectively to bar all showing of unprotected film, the requirement cannot be administered in a
manner which would lend an effect of finality to censor's determination whether a film constitutes
protected expression. Because only a judicial determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression. Only a procedure requiring a judicial determination
suffices to impose a valid final restraint. To this end, the exhibitor must be assured, by statute or
authoritative judicial construction that the censor will, within a specified brief period either issue a
licence or go to a court to restrain showing of the film. Any restraint imposed in advance of a final
judicial determination on the merits must similarly be limited to preservation of status quo for the
shortest period compatible with sound judicial resolution. The procedure must also prompt a final
judicial decision to minimize the deterrent effect on an interim and possibly erroneous denial of
licence.
Without these safeguards, it may prove too burdensome to seek review of censor's determination.
Particularly in the case of motion pictures, it may take very little to deter exhibition in a given locality.
The exhibitor's stake in any one picture may be insufficient to warrant a protracted and onerous
course of litigation. The distributor, on the other hand, may be equally unwilling to accept the burden
and delays of litigation in a particular area when, without such difficulties, he can freely exhibit his film
in most of the rest of the country.
But though the American Supreme Court has eventually established the view that a motion picture is
as much entitled to the protection of the First Amendment as any other medium of expression, it has
made a distinction between this medium and the medium of written communication. While in the case
of the freedom of the press, any form of previous restraint has been held to be unconstitutional (see
ante), in the case of motion pictures it has been held that the guarantee of freedom of expression is
not violated in subjecting every film to its production at the office of the censor for his examination. 96 It
would be legitimate for the State to subject obscene films to censorship, even though they are
exhibited in theatres open to 'adults only'.97
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39i)  Censorship of films would, of course, be valid if some definite 98 and

constitutionally permissible standard is laid down by the law for the guidance of the
censors, but not so if the law provides no standard or some standard which is vague or
uncertain.99
The following laws providing for censorship have thus been invalidated for
indefiniteness--
18. A law which authorised the Board of Censors to deny a licence if the Board
was of opinion that the film in question was "of such character as to be prejudicial
to the best interests of the people of the said city". 100
18. A law which authorised the Courts to refuse a licence if in their opinion the
film was 'sacrilegious'.101 In this case, the Court observed--
20. "In seeking to apply the broad and all-inclusive definition of 'sacrilegious'...
the censor is set adrift upon a boundless sea amid a myriad of conflicting currents
of religious views, with no charts... New York cannot vest such unlimited
restraining control over motion pictures in a censor". 102
11. A statute which authorised the Censors to approve only such films which
were in their judgment "of a moral, educational or amusing and harmless
character",103 or to reject those which were 'immoral'.104
21. On the other hand, the Court has upheld the validity of a statute which
provided that a licence shall not be issued for the exhibition of a film which
portrays "acts of sexual immorality... as desirable, acceptable or proper pattern of
behaviour."105

37ii)  Another condition laid down by the Supreme Court for the validity of
censorship is that there must be a judicial review of the finding that the film in question is
obnoxious and is not protected by the constitutional guarantee of freedom of expression,
e.g., because it is obscene,--before the restraint on its exhibition is enforced. 106 This is
because "the separation of legitimate from illegitimate speech calls for... sensitive
tools".107
In the absence of any procedural safeguards against arbitrary exercise of the power,
as suggested in the Freedman case,108 a statute for censorship, of movies would be
struck down.109
Of course, the question of censorship should be distinguished from regulation of public show, 110 or
prosecution for obscenity.
In the UK, censorship of films operates in practice on two levels - firstly, the British Board of Films
Classificaiton (BBFC), a self-censorship body set up by the film industry in 1912, may insist on 'cuts'
before issuing a certificate allowing the film to be screened or may refuse to issue a certificate at all. It
was set up in response to the Cinematograph Act , 1909 which allowed local authorities to grant
licences in respect of the films to be shown in their particular area; the idea was that the film industry
would achieve uniformity of decision-making by local councils. Thus, it would have a guide as to
whether a film would be shown and as to where to make cuts in order to achieve a wider audience.
Under the Cinemas Act, 1985, the local authority has a duty to impose conditions which prohibit the
admission of children to film exhibitions which are "unsuitable". The local authorities have also power
to impose conditions which relate to the admission of adults.
The duty to issue or withhold licences (as appropriate) and the power to impose conditions on
licensed cinema has been used in practice as a censorship tool. There are model licensing conditions
which are drafted by Home Office and which are implemented by most of the local authorities which
include the following:- (a) no film, other than a current news real, shall be exhibited unless it has
received a certificate of the British Board of Film Classification (BBFC) or is the subject of the licensing
authority's permission; (b) no film shall be exhibited if the licensing authority gives notice in writing
prohibiting its exhibition on the ground that it would offend against good taste or decency or would be
likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling.
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In London, there are further conditions in cinema licences, prohibiting the exhibition of any film which
is likely to have the following effects: (1) encouragement or incitement of crime; (2) leading to disorder;
(3) stirring up racial ethnic or sexual hatred; (4) promoting the sexual humiliation or degradation of or
violence towards women; (5) being such as to tend to deprave and corrupt persons who are likely to
see it; (6) containing a grossly indecent performance which outrages the standards of public decency.
Thus, the licensing system, as it is operated, is a censorship system rather than a formality. Films are
granted certificates which permit them to be shown to persons above a particular age, based upon the
content of the film and its subject matter.
The BBFC uses the following classification system both for film and videos:- (a) 'U' (Universal),
suitable for all persons including children; (2) 'Ue' (Universal, particularly suitable for young children)
applies only to videos; (3) 'PG' (parental guidance); some scenes may be unsuitable for young
children, may contain some nonsexual nudity, mild violence; (4) 12 - passed for viewing only by
persons aged 12 or above, may include implication of sex within a relationship, some swearing, limited
violence; (5) 15 - passed for viewing only by persons aged 15 or above, may include non-sexual
nudity; even full frontal; brief sex, use of soft drinks, violence and horror ; (6) 18 - passed for viewing
only by persons aged 18 or above; may include controversial religious or sexual topics, full nudity,
simulated sex, use of hard drugs, any expletives, graphic violence. But sadism or glamorisation of
weapons or drugs will not normally be permitted within this classification; (7) R18 - (Restricted 18) -
passed for restricted distribution only through cinemas or sex with a special licence and to which no
persons under the age of eighteen have access. May contain graphic consensual sex as far as law
allows; pornographic language will be censored. If a film or video offends against the provisions of
Criminal Law, then it will be denied certificate altogether unless BBFC considers that cuts can be
made which will remove offensive material.
While local authorities have no duty to censor films for adults, but merely for children, it is clear that
they may so act . In R v. Greater London Council exparte Blackburn ,111 it was decided that if a local
authority does censor a film for adults (whether it exercises the power by itself or affirms a decision
made by BBFC), then it must not allow the exhibition of any film which constitutes an Obscene
Publication Act offence or indeed any other criminal offence such as the indecency offences.
By the Video Recordings Act, 1984, the State introduced a system of censorship of videos prior to
their release and distribution. By virtue of Criminal Justice and Public Order Act, 1994, BBFC while
exercising powers under Video Recording Act, 1984 must have special regard to "any harm that may
be caused to potential viewers or through their behaviour to society, the manner in which the works
deal with - (a) criminal behaviour; (b) illegal drugs; (c) violent behaviour or incidents; (d) horrific
behaviour or incidents; or (e) human sexual activity. 112
India
(B) India.--In India, censorship of films is known almost from the very introduction of cinematograph
into India,--since the enactment of the Cinematograph Act (II of 1918), which has now been replaced
by the Cinematograph Act (XXXVII of 1952).
After the commencement of the Constitution, the constitutionality of censorship or the power to
exercise previous restraint through licence has been raised in some cases. The question has been
elaborately discussed by a three-judge Bench in Rangarajan's case,113 where the following statements
made at Art. 19(1)(g) of this Commentary have been affirmed.
From the foregoing pages, it has been abundantly clear that freedom of expression includes
expression through visual or auditory media and also includes the right to propagate others' view. The
object of freedom of speech and expression being the dissemination of knowledge, it would be
meaningless if it did not include the right to disseminate knowledge or information which comes from
any source, provided, of course, that is not illegal. Nor is it possible to exclude moving pictures from
the ambit of the freedom on the theory of profit.
Nevertheless, it does not follow that censorship as such would not be valid at all under our
Constitution. Under our Constitution, the validity of a restriction upon a freedom guaranteed by Art.
19(1) is not to be tested with reference to any theory like that of 'clear and present danger' or that of
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'due process' but by the sole consideration whether the restriction is 'reasonable'. Hence, censorship
of films would not be per se unconstitutional.1 It would be valid if it has a substantial relation to the
grounds of restriction enumerated in cl. (2) of Art. 19, such as public order, decency or morality or the
like, and the law is substantively and procedurally reasonable. Thus, if the law or the order issued
under it denies natural justice, it cannot be said to impose a 'reasonable' restriction. 2

9.  As in the U.S.A., it has been held in India that though the cinema is a
medium of expression, it has certain features which place it on a different footing from
other means of communication, such as speech, books and newspapers,
magazines,etc. (para. 9).3
13I.  Because a movie has a more profound and immediate effect on the mind
and has a unique capacity to disturb and arouse feelings, it cannot be allowed to
function in a free marketplace just as does newspapers or magazines. Censorship by
prior restraint is, therefore, not only desirable but also necessary (para. 10), 4 in the case
of a movie.
Standard for censorship
9II.  Since only 'reasonable restrictions' can be imposed, under Art. 19(2), on the
freedom of expression, the standard to be adopted by the censor (or by the Court in
exercising its power of judicial review) must be a 'reasonable' one, namely, the standard
of an ordinary reasonable man (para. 20-21)5i.e., a man of common sense and prudence
and not a hypersensitive man.
The censor has to balance the literary, artistic, sociological and ethical merit of a picture 6 with its
tendency to deprave and corrupt (para. 10).7 He must be responsive to social change and must go
with the current climate (para. 21).8
The authorities concerned with film certification is to be responsive to the values and standards of
society and take note of social change. They are required to ensure that "artistic expression and
creative freedom are not unduly curbed". The film must be "judged in its entirety from the points of
view of overall impact". It must also be judged in the light of the period depicted and the contemporary
standards of people to whom it relates, but it must not deprave the morality of the audience. Human
sensibilities are not offended by vulgarity, obscenity or depravity that scenes degrading or denigrating
women are not presented and scenes of sexual violence against women are avoided, but if such
scenes are germane to the theme, they be reduced to a minimum and not particularised. A film that
illustrates the consequence of a social evil necessarily must show the social evil. No film that extols
the social evil or encourages it is permissible, but a film that carries a message that the social evil is
an evil cannot be made impermissible on the ground that it depicts evil. At the same time, the
depiction must be just sufficient for the purpose of the film. 9 When art and obscenity are mixed, what
must be seen is, whether the artistic literary of social merit of work in question overweighs the
obscene content. In Ranjit D. Udeshi v. State of Maharashtra ,10 the Supreme Court held that the
delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a
last resort by the Supreme Court and therefore the evidence of men of literature or others on the
question of obscenity is not relevant. However, in Samaresh Bose v. Amal Mitra ,11 it was observed
that in appropriate cases, the court for eliminating any subjective element or personal preference
which may remain hidden in subconscious mind and may unconsciously affect a proper objective
assessment may draw upon the evidence on record and also consider the views expressed by
reputed or recognised authors of literature on such question if there be any of its own consideration
and satisfaction to enable the court to discharge the duty of making a proper assessment. For judging
a work, the test should be that of an ordinary man of commonsense and prudence and not an "out of
the ordinary or hyper-sensitive man". The definition of obscenity differs from culture to culture,
between communities of same culture and also between individuals within the same community. Many
cultures have produced laws to define what is considered to be obscene and censorship is often used
to try to suppress or control materials that are obscene under these definitions. 12
When can a film to be publicly exhibited be castigated as prurient and obscene and violative of norms
against veneral depravity. KRISHNA IYER, J. observed: "Art, morals and laws manacles on aesthetics
 312

are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark
and bite because State-made straitjacket is an inhibitive prescription for a free country unless
enlightened society actively participates in the administration of justice to aesthetics.
The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konarks
and Khajurahos, lofty epics, luscious in patches may be asphyxiated by law, if prudes and prigs and
State moralists prescribe paradigms and prescribe heterodoxies.
The Court will examine the film and judge whether its public display, in the given time and clime, so
breaches publics morals or depraves basic decency as to offend the penal provisions. Statutory
expressions are not petrified by time but must be updated by changing ethos even as popular ethics
are not absolute but abide and evolve as community consciousness enlivens and escalates. ... Social
scientists and spiritual scientists will broadly agree that man lives not alone, but by mystic squints,
ascetic chants and austere abnegation, but by luscious love of beauty, sensuous joy of companionship
and moderate non-denial of normal demands of the flesh. Extremes and excesses boomerang
although some crazy artists and film directors do practise Oscar Wild's observation, "Moderation is a
fatal thing, nothing succeeds like excess".13
In Samaresh Bose v. Amal Mitra ,14 it was observed: "If a reference to sex by itself in any novel is
considered to be obscene and not fit to be read by adolescents, adolescents will not be in a position to
read any novel, and will have to read books which are purely religious". The incidence of shielding
minors should not result in a situation where the adult population is restricted to read and see what is
fit only for children. It would be inappropriate to deprive the adult population of the entertainment
which is well within the acceptable levels of decency on the ground that it may not be appropriate for
the children of certain photographs and news items, etc. This will lead to a situation where the
newspaper will be publishing material which caters only to children, and adolescents and adults will be
deprived of reading their share of the entertainment which can be permissible under the normal norm
of decency in any society.15
"Again, our Constitutional democracy guarantees the right of free speech and that right is not
conditional upon the expression of views which may be palatable to mainstream thought. Dissent is
the quintessence of democracy. Hence those who express views which are critical of prevailing social
reality have a valued position in the constitutional order. History tells us that dissent in all walks of life
contributes to the evolution of the society. Those who question unquestioned assumptions contribute
to the alterations of social norms. Democracy is founded upon respect for their courage. ... Artists, film
makers and playwrights are affirmatively entitled to allude to incidents which have taken place and to
present a version of those incidents which according to them represents balanced portrayal of social
reality. A film cannot be denied its right to be exhibited on the ground that it had characters which bear
a resemblance to real life personalities. The Constitutional protection under Art. 19(1)(a) that a film
maker enjoys is not conditioned on the premise that he must depict something which is not true to life.
Those who hold important position must have shoulders which are broad enough to accept with grace
a critique of themselves. Critical appraisal is the corner stone of democracy and the power of the films
as a medium of expression lies in its ability to contribute to that appraisal". 16 Reservation is a sensitive
social issue and in a vibrant democracy like India, public discussion and debate on such social issues
are required and are necessary for smooth functioning of a healthy democracy. Such discussions on
social issues bring in awareness which is required for effective working of the democracy. In fact,
when there is public discussion and there is some dissent on these issues, an informed and better
decision could be taken which becomes a positive view and help the society to grow. 17
Court has justified pre-censorship of a film because it caters for mass audience; it has unique capacity
to disturb and arouse feelings and has as such potential for evil as it has for good. A film cannot
therefore be allowed to function in a free market place just as a newspaper or magazines do.
If some scenes of violence, some nuances of expression or some events in the film can stir up certain
feelings in the spectator, an equally deep, strong, lasting and beneficial impression can be conveyed
by scenes revealing by machinations of selfish interests, scenes depicting mutual respect and
tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion.
Unfortunately, modern developments both in the field of cinema as well as in the field of national and
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international politics have rendered inevitable for people to face the realities of internecine conflicts
inter alia in the name of religion. Even contemporary news bulletin very often carry scenes of pitched
battle or violence. "What is necessary sometimes is to penetrate behind the scenes and analyse the
causes of such conflicts. An attempt by the author of the film to draw a lesson from country's past
history, expose the motives of persons, who operate behind the scenes to generate and foment
conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above
religious barriers and to treat one another with kindness, sympathy and affection, can be best
conveyed only through a film and if the author succeeds in that attempt, it will be an achievement of
great social value. Exhibition of such film cannot be prohibited. 18
In Union of India v. Association for Democratic Reforms ,19 which dealt with voters' right to know the
antecedents of candidates, held that Art. 19(1) and (2) shall include freedom to seek, receive and
impart information and ideas of all kinds "regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice".
In Rangarajan v. P. Jagajivan Ram ,20 it was observed: "If the exhibition of film is restricted, it would run
a foul of the democratic principles to which we have pledged ourselves under the Constitution.
Everyone has a fundamental right to form his own opinion on an issue of general concern. He can
form and inform by any legitimate means. Public discussion is a basic feature of a democracy and it is
this process which distinguishes it from other forms of government. Democracy can neither work nor
prosper unless people go out to share their views and it is based essentially on a free debate and
discussion. Merely a section of people do not accept the views as expressed in the film is not a
ground to prohibit its exhibition". In such cases, the State is bound to protect the right of the person
whose fundamental right is threatened by those people who dissent from the views as seen in the film.
The State is bound to protect the right against threats, and should not ban the exhibition of film. 21
In Rangarajan's case,22 the Supreme Court said that a film producer is entitled to project his own
message which others may not approve. Every one has a fundamental right to form his own opinion
on any issue of general concern. The State cannot prevent open discussion and open expression of
views however critical of its own views. In a democracy, it is not necessary that every one should sing
the same song. Freedom of expression is the rule and it is generally taken for granted. Every one has
a fundamental right to form his own opinion on any issue of general concern. He can form and inform
by legitimate means. The democracy is a Government by the people via open discussion. The
argument that prohibition from exhibiting the film is necessary on the ground that there might arise
serious law and order problems, was not accepted by court. The Court said: "What good is the
protection of freedom of expression, if the State does not take care to protect it? If the film is
unobjectionable and cannot be constitutionally restricted under Art. 19(2), freedom of expression
cannot be suppressed on account of the threat of demonstration and procession or threats of violence.
It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against
the State".23
Eminent lawyer and columnist A.G. NOORANI in his article, "Film Censorship : An unconstitutional
system" has criticised the various provisions of the Cinematograph Act , 1952 and Rules as amended
till date and has expressed the view that the present system of film censor is not constitutionally
valid.24
The Author would like to utter a word of caution. Neither the censor nor the Court can be swayed by
the consideration whether the film in question could have the approval of a censor in some other
country, because the moral standard of each country varies on account of its historical, sociological
and ethnic background. As observed by the three-judge Bench (para. 21), 25 no censor in India can
overlook the cultural heritage of India and its spiritual ideals.
That is why, the open, propagation of adultery in Lady Chatterly's Lover has been approved in the
U.S.A. as protected by the freedom of expression guaranteed by the Constitution, 26 the Indian
Supreme Court had no hesitation27 in condemning it as obscene.
There is another reason why the American view is not acceptable in India. While the American
Supreme Court has parted28 with the Hicklin test29 of obscenity (see ante), the Constitution Bench of
the Indian Supreme Court30 has held that, in view of the social and educational conditions in India, the
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Hicklin test31 should prevail. So long as this proposition is not overruled, no subsequent Court can
have the liberty to import American permissiveness into the Indian law of obscenity.
There are, however, some observations in the three-judge decision (paras. 8,9,11) 32 as to the position
of the law in the U.S.A., which it is submitted, are not correct:

41a)  Firstly, it has been asserted that decisions bearing on the First Amendment
(U.S.A.) are ...not useful to us except the broad principles and the purpose of the
guarantee", because while "this amendment is absolute in terms and it contains no
exception for the exercise of the right", the Indian Constitution guarantees the right to
freedom of expression in Art. 19(1)(a) subject to reasonable restrictions that may be
imposed in the interests of the community, under cl. (2) of Art. 19.
This statement however, does not represent the correct situation in the U.S.A. because
though the First Amendment is absolute in its terms, it has been judicially established
from the outset that the exercise of all these rights is subject to regulation by the State
under its sovereign 'police power' which enables it to protect the interests of the
community, by resorting to reasonable regulation.33 The Court,34 in fact, cites the
American decision in Schenck's case35 in the same paragraph (para, 7).36
What the framers of the Indian Constitution did was to embody the grounds of restriction
under the 'police power' in the text of Art. 19 itself so that the Indian Court need not have
to rely on the undefined contents of the 'police power'. 37 The result, however, has not
been so different as to throw out the American precedents as altogether irrelevant to an
Indian Court.
43b)  Secondly, it has been stated (para, II), citing the Kingsley case38 that
because the First Amendment is absolute in terms, any prior restraint (i.e. censorship)
on movies would be unconstitutional in the U.S.A.
But, as has been already indicated, the current view39 in the U.S.A. is that censorship of movies would
be upheld by the Court provided it is subject to procedural safeguards, viz.,

40i)  That under the law providing for censorship, the burden of proving that the
film in question offends against the legitimate objects of social control is laid on the
censor.
38ii)  That the determination by the censor that the film is not protected by the
freedom of expression is not final but subject to judicial review.
23iii)  The prior restraint must, therefore, be a temporary restraint and within a
specified brief period, the censor must go to Court to restrain exhibition of the film.40
Of course, the expression 'reasonable restrictions' in Art. 19(2) in the Indian Constitution gives a
greater latitude to the State in imposing censorship on a film, but it cannot be said that censorship of
the movie is unknown in the U.S.A.
Television
In the UK, the Broadcasting Act, 1990 created Independent Television Commission (ITC) which is
responsible for the licensing and regulation of all television services, terrestrial and satellite, except for
those which are run by BBC. In addition to many other functions, the ITC is under a duty to "do all that
can to secure that every licence service complies with following requirements, namely, (1) that nothing
is included in its programme which offends against good taste or decency or is likely to encourage or
incite to crime or to lead to disorder or to be offensive to public feeling; that due responsibility is
exercised with respect to the content of any of its prgrammes which are religious programmes and
that in particular any such programmes do not involve (i) any improper exploitation of any
susceptibilities of those watching the programme; (ii) any abusive treatment of the religious views and
beliefs of those belonging to a particular religion or religious denomination. [See s. 6(a) and (d)]. The
Broadcasting Act, 1996 gives statutory duties to the Broadcasting Standing Commission (BSC) an
independent body to which appointments are made by Home Secretary. The BSC is placed under a
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duty to create and implement a Code of Guidance for broadcasters which deals with matters of
decency with particular attention to the depiction of sex and violence. The BSC is under a further duty
to deal with complaints about indecency, sex or violence in broadcasts and may have a hearing to
enable it to reach a decision. The British Broadcasting Corporation (BBC) is also placed under similar
duties by terms of its Royal Charter and by its Licence, including duties in relation to taste, decency,
depiction of sex, violence and crime and avoidance of causing offence to the public. 41
India
The footing of exhibition on television, under Art. 19(1)(a), has been adverted to by the Indian
Supreme Court,42 as follows:

9.  The right of a citizen to exhibit films on the Doordarshan subject to the terms
and conditions to be imposed by the Doordarshan is a part of the fundamental right of
freedom of expression guaranteed under Art. 19(l) (a) of the Constitution of India which
can be curtailed only under circumstances which are set out in Clause (2) of Art. 19 of
the Constitution of India . The right is similar to the right of a citizen to publish his views
through any other media such as newspapers, magazines, advertisements, hoardings
etc., subject to the terms and conditions of the owners of the media. Even a talented
artist does not have a right to telecast her performance through Doordarshan since the
same is subject to reasonable restriction.43

11.  The Supreme Court however reserved its opinion as to the question whether
a citizen has fundamental right to establish a private broadcasting station or television
Centre.44
But in a subsequent decision, i.e., in Secretary, Ministry of Information and Broadcasting, Government
of India v. Cricket Association of West Bengal ,45 it was held that the right to impart and receive
information is a species of the right of freedom of speech and expression guaranteed by Art. 19(1)(a)
of the Constitution and a citizen has a fundamental right to use the best means of imparting and
receiving information and as such to have an access to telecasting for the purpose. However, this right
to have an access to telecast has limitation on account of use of the public property, viz., the airwaves
involved in the exercise of the right and can be controlled and regulated by public authority. This
limitation imposed by the nature of the public property involved in the use of the electronic media is in
addition to the restriction imposed on the right to freedom of speech and expression under Art. 19(2). -
Per SAWANT & MOHAN JJ.
JUSTICE JEEVEN REDDY in his separate, but concurring judgment, held that "Broadcasting media
by its very nature is different from Press. Airwaves are public property. The fact that a large number of
frequencies or channels are available do not make them any the less public property. It is obligation of
the State to ensure that they are used for public good. No one can claim the fundamental right to
receive and impart information by using or employing public property. Only where the Statute permits
him to use the public property, then only, and subject to such conditions and restrictions as the law
may impose, he can use the public property, i.e., airwaves. It was held that airwaves being public
property and better remain in public hands in the interests of freedom of speech and expression of the
citizen of the country.
In LIC v. Manubhai D. Shah ,46 the Court stated that, a liberal interpretation should be given to the right
of freedom of speech and expression. The Court characterised this right as a "basic human right" and
this right includes the right to propagate one's views through print media or through any other
communication channel e.g., the radio and television. Thus, every citizen has a right to air his or her
views through print and/or other electronic media subject, of course, to permissible restriction under
Art.19(2) of the Constitution. Once it is recognised that a film maker has a fundamental right under
Art.19(1) (a) to exhibit his film, the onus lies on the party which claims that it was entitled to refuse
enforcement of this right by virtue of law made under Art.19(2). The producer has a right to convey his
perception of the gas disaster in Bhopal through documentary film prepared by him. When the film has
won Golden Lotus award and has cleared Censor Board's permission, the authorities cannot deny
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permission to exhibit the film through television on the ground that the producer has distorted the
version. Doordarshan refused to telecast the documentary film on the ground that the "contents being
outdated do not have relevance now for the telecast". The Court said that a film maker has a
fundamental right under Art.19(1)(a) to exhibit the film and refusal to telecast was an infringement on
his right and the refusal to exhibit can be on the ground that it does not conform to the requirements of
law. The Court said: "...freedom of speech and expression in Art.19(1)(a) must be broadly interpreted
so as to include the freedom to circulate one's views by words of mouth or in writing or through audio-
visual instrumentalities like radio, television, subject of course to permissible restriction under
Art.19(2). The print media, the radio and the tiny screen play the role of public educators, so vital to
the growth of healthy democracy. Subject to reasonable restriction as envisaged by Art.19(2), a citizen
has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same
would offend Art.19(1)(a). Ultimately, the Court rejected Doordarshan's reasons for not showing the
film on the television. The Court said: "To bring out the inadequacy of the State effort or the
indifference of the opinion etc. cannot amount to an attack on any political party if the criticism is
genuine and objective and made in good faith. Doordarshan being a State controlled agency, funded
by public funds, could not have denied access to screen except on valid grounds".
In Ramesh v. UOI ,47 the Court said: "The effect of exhibition of a film or of reading a book has to be
judged from the standards of reasonable, strong minded, firm and courageous men or as has been
said in English law "the man on the top of Clapham omnibus" and not those weak and vacillating
minds, nor of those who scent danger in every hostile point of view". Censors must make a substantial
allowance in favour of freedom, thus leaving a vast area for creative art to interpret life and society
with some of its foibles along with what is good. A balance has to be struck when a film is capable of
creating a lasting impression of message of peace and co-existence and that people are not likely to
be obsessed, overwhelmed or carried away by scenes of violence or fanaticism shown in the film, it
should be permitted to be exhibited".
Tamil Nadu Entertainment Tax Act, 1939 was amended in 1996 to bring within its purview the Cable
TV and entertainment tax was levied therein. The same was challenged on the ground of legislative
competence to enact the Amendment Act as the subject matter of the amendment was exclusively
within the purview of Parliament. While confirming the decision of Madras High Court, it was held that
it is quite likely that network relay programme, broadcast and telecast by Doordarshan and other TV
networks and some of them may be informative in nature and educational in character, but the fact
remains that their act ivities are combination of two rights: (1) right to business, and (2) freedom of
speech and expression. It was held that business part of the right can be taxed. If taxes can be levied
on entertainment provided by cinemas and the press, on the same principle Cable TV also can be
taxed. Where the freedom of speech gets intertwined with business, it goes a fundamental change
and its exercise has to be balanced against social interest. While there can be no tax on the right to
freedom of speech and expression, tax is leviable on profession, occupation, trade, business and
industry.48
The provisions of Cable Television Networks (Regulation) Act, 1995, which is deemed to have come
into force from 29-9-1994, enables the Central Government to prohibit, operation of cable television in
public interest in such areas as may be notified. Where the Central Government thinks it necessary or
expedient to do so, in the interest of the sovereignty or integrity of India or security of India or friendly
relation of India with any foreign State or public order, decency or morality, it may, by order, regulate,
or prohibit the transmission or re-transmission of any channel or programme.
Video Cassettes
U.K.
(A) U.K.--Englandhas enacted the Video Recordings Act, 1984, to provide for the statutory censorship
of video recordings which do not come within the law relating to cinema films, although it has recently
assumed a potent medium of corrupting the public and particularly, the youth.
Video cassettes dealing purely with education, religion, sports or music are excepted. The sale or hire
of other cassettes is an offence unless it has been licensed and classified by the statutory censoring
authority.
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The Video Recordings Act, 1993 added a general defence to the offence under the 1984 Act . (a) "that
the commission of the offence was due to the act of default of a person other than the accused; (b)
that the accused took a reasonable precaution and exercised all due diligence to avoid the
commission of the offence by any person under his control".
U.S.A.
(B) U.S.A.--No special legislation to control video appears to have been adopted in the U.S.A. As a
result, production or possession of obscene video cassettes is dealt with under the ordinary law
applicable to other movies.49
Advertisement as a Medium of Expression
Both in the U.S.A. and in India it has been held that advertisements have a double aspect, namely,
that they may be used as a medium of propagation of ideas or merely for the purpose of canvassing
one's goods or business and that the reasonableness of restrictions imposed by the State upon
advertisement has to be determined with refer- ence to the purpose 50 for which the advertisement
which is so restricted has been used.
The dictionary definitions of the word "advertisement" are as under: (1) Advertising - (a) The act ion of
drawing the public's attention to something to promote its sale, (b) The business of producing and
circulating advertising.51(2) Advertisement - Notice given a manner designed to attract public attention;
information communicated to the public or to an individual concerned, as by handbills, newspapers,
television, billboards, radio, etc.52 (3) Advertising - the techniques used to bring products, services,
opinion or causes to public service for the purpose of persuading the public to respond in a certain
way towards what is advertised. Most advertising involves promoting a good that is for sale, but similar
methods are used to encourage people to drive safely, to support various charities or to vote for
political candidates, among many other examples.53(4) Advertisement - any public notice, as a printed
display in a newspaper, short-film on television, announcement on radio, etc. designed to sell goods,
publicise an event, etc. (i) the action or practice of drawing public attention to goods, services, events,
etc. as by the distribution of printed notices, broadcasting, etc.; (ii) the business that specialises in
creating such publicity; (iii) advertisement collectively; publicity; 54(5) Advertising - an act of advertising,
a public notice, use with the purpose of informing and/or changing public attitude and behaviour; a
short performance recorded for radio, TV, etc., to advertise goods or services, news.55
An advertisement is a matter that draws attention to the public or segment of public to a product,
service, person, organisation or line of conduct in a manner calculated to promote or oppose directly
or indirectly that product, service, person, organisation or line of conduct intended to promote sale or
use of product or range of products. An advertisement is information that the producer provides about
its products or services. An advertisement tries to get consumers to buy a product or service. An
advertisement is generally of goods and services and is information intended for potential customers
and not a mere display of the name of the company unless the same happens to be a trademark or
trade name.56
U.S.A.
(A) U.S.A.--When advertisement is used for non-commercial purposes, e.g., for the propagation of
religious ideas, any kind of precensorship57 or licensing58 imposed upon it would violate the guarantee
of the freedom of speech (First Amendment). In such cases, even though the State may regulate the
display of such advertisements in the public thoroughfares, it cannot 'unduly burden or proscribe' its
employment.59
Advertising--speech that invites a commercial transaction--receive second class constitutional
protection. At one time, the Court was of the view that such speech was wholly unprotected, but since
1976, it has received a limited protection. There is a body of opinion that commercial advertising ought
to receive full constitutional protection, save in those instances where the content of the speech poses
some significant commercial harm such as fraudulent advertising (e.g., a false securities prospectus)
or advertising that solicits an independently illegal act (e.g., sale of an assault rifle to a child). But that
view has not been captured by a majority of the Court.
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In Valentine v. Chrestensen ,60 the Court upheld a prohibition against advertising that solicited tours of
a privately owned submarine. "The free speech guarantee, said the Court, places no restraint on
Government as respects purely commercial advertising".
That approach, however, did not deny protection to all speeches that were motivated by the desire to
turn profit. Most newspapers and broadcasters, for example, are not charitable enterprises and their
editorial content, even under 'Valentine'61 enjoyed constitutional protection. Moreover, the 'Valentine'
approach required the Court to distinguish between "purely" commercial advertising and advertising
that focuses on political or non-commercial ends. Thus, in New York v. Sullivan ,62 the allegedly
defamatory advertisement was not denied constitutional protection simply because it was a "paid
commercial advertisement". Indeed, the advertisement, though purchased, was hardly commercial.
The only commercial transaction it solicited was financial support for civil rights movement. 63
On the other hand, when advertisement is used for purely commercial purposes it does not come
within the protection of the freedom of speech64 but is regarded as an incident of the freedom of
business or profession (Fourteenth Amendment), so that even a total prohibition may be valid if the
interests of the public so require.65 Thus, a State may prohibit the distribution of (predominantly)
commercial advertisements on a public street66 even though a civic67 or political,68 appeal may be
appended to them; or prohibit motor vehicles to display advertisements except those relating to the
products of the owners of such vehicles.69
The theory propounded in Valentine's case,70 that commercial advertisements is not entitled to any
protection of the First Amendment as a medium of expression has, however, been dissented from or
modified in later cases,71 though not yet expressly overruled.
The present state of the law may be summed up as follows:

41i)  The Court has given up the dichotomy of speech into 'pure' and 'commercial'
and held that the nature of a speech does not depend upon the speaker's motive of
commercial profit or otherwise, but on the content of the speech, and that even a
commercial advertisement may contain information useful to the public72 relating to
public issues, such as venereal disease, family planning, contraceptives. 73 It is for the
Court to determine whether an 'advertisement' contains such public information, without
more (in which case, it would be protected by the First Amendment), or 'does' no more
than propose a commercial transaction.74 It was held therein, even if we assume that the
advertiser's interest is purely economic one, that hardly disqualifies him from protection
under First Amendment. Society also may have a strong interest in the free flow of
commercial information. Even an individual advertisement, though entirely "commercial"
may be of general public interest. So long as we preserve a predominantly free
enterprise economy, the allocation of resources in large measure will be made through
numerous private economic decisions. It is a matter of public interest that those
decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of
commercial information is indispensable. And if it is indispensable to the proper
allocation of resources in a free enterprise system, it is also indispensable to the
formation of intelligent opinion as to how that system ought to be regulated or altered.
Therefore, even if the First Amendment were thought to be primarily an instrument to
enlighten public decision making in a democracy, it could not be said that free flow of
information does not serve that goal.
The Court's ruling in Bates v. State Bar of Arizona ,75 turned largely on the fact that
business had been solicited by a newspaper advertisement. But what about the other
forms of solicitations? In two subsequent cases, Ohralik v. Ohio State Bar Assn .76 and In
re. Primus,77 the Court turned its attention to the constitutionality of sanctions levied
against one lawyer who was engaged in face to face solicitation and another who wrote
a letter to a prospective client. Those situations move us much closer to the perils of
"ambulance chasing" that all along was the matter of greater concern of State bars. The
Court saw a difference in these two contexts. JUSTICE MARSHALL argued that behind
the constitutional question of commercial speech lurked major issues in the availability of
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legal services to those individuals less well off in society. JUSTICE REHNQUIST, on the
other hand, was uninspired by this "tale of two lawyers". 78 Lawyer advertising was held
constitutionally protected in Bates v. State Bar of Arizona .79 Restriction as truthful, non-
misleading advertising by lawyers and accountants was struckdown inIbanez v. Florida
Department of Business and Professional Regulation .80
In Cicinnatti v. Discovery Net Work Inc .,81 the Court held that commercial speech may
not be treated differently from similar non-commercial speech in the absence of same
clear and peculiarly commercial harm stemming from the commercial speech.
39ii)  Commercial advertisement will not be protected as a medium of expression
where the commercial act ivity is itself illegal,82e.g., where it is deceptive or fraudulent,83
or furthers a criminal scheme84 or where it invades the privacy of others85 or thrusts itself
upon an unwilling audience.86
In short, by simply referring to a public issue, an advertiser cannot immunise a false,
misleading or unlawful product, or illegal behaviour, 87 from Government regulation.88
24iii)  On the other hand, it would be protected where, apart from advertisement
transaction, it seeks to communicate information, recited grievances, and sought
financial support on behalf of a movement whose existence and objectives are matters
of the highest public interest and concern.89 On this reasoning giving information about
the legality of abortion90 has been held to be protected even though the advertisement
was prompted by the commercial interest of the advertiser. 91
17iv)  If the commercial advertisement relates to an activity which the State is
constitutionally entitled to regulate,92 it may be subjected to reasonable regulation in the
public interest, e.g.,--
19. Where it relates to professional act ivity. 93
19. Where the medium of advertisement has 'unique characteristics': calling for
regulation in the public interest, e.g., advertisement through electronic media.94
Of course, such regulation would be valid only if it is reasonable and balances the
public interest in the freedom of expression and in the control of the commercial activity. 95
14v)  Even within the field of commercial advertisement, the State has been held
to differentiate according to the medium or forum for advertisement,--thus, prohibiting
commercial advertisement on a bill board, streetcar or placard, while allowing it in
newspaper, other periodical or the radio, on the ground that "the streetcar audience is a
captive audience", while it is possible for a radio audience to turn it off; 96 and the reader
of a newspaper or periodical has also a similar option.
Commercial advertisement on streets may also be prohibited for the maintenance of traffic safety, 97 or
aesthetics of the city.98
India
(B) India.--The earlier American view (as stated above) was reflected by our Supreme Court in
Hamdard Dawakhana v. Union of India ,99 where the Court upheld the reasonableness of s. 3 of the
Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, which prohibited
advertisements relating to the sale of certain drugs and medicines as are likely to lead to the injurious
practice of self-medication.
The reasoning may be explained in the words of KAPUR J. who spoke for the Court--
"An advertisement is no doubt a form of speech, but its true character is reflected by the object for the
promotion of which it is employed. It assumes the attributes and elements of the activity under Art.
19(l), which it seeks to aid by bringing it to the notice of the public. When it takes the form of a
commercial advertisement which has an element of trade or commence it no longer falls within the
concept of freedom of speech for the object is not propagation of ideas--social, political or economic or
furtherance of literature or human thought; but as in the present case the commendation of the
efficacy, value and importance in treatment of particular diseases by certain drugs and medicines .. It
 320

cannot be said that the right to publish and distribute commercial advertisements advertising an
individual's personal business is a part of freedom of speech guaranteed by the Constitution ...
It cannot be said... that every advertisement is a matter dealing with freedom of speech nor can it be
said that it is an expression of ideas. In every case one has to see what is the nature of the
advertisement and what activity falling under Art. 19(1) it seeks to further... and advertising of
prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be
speech within the meaning of freedom of speech and would not fall within Art. 19(1)(a)" 100
The principles laid down in the American decisions would lead to the conclusion that prevention of
fraud, risk of harm to young people, as may come in under Art. 19(2), would be good grounds for
restricting commercial advertisements.
In a later case,101 the Supreme Court reviewed and explained the true scope of the Hamdard
decision,102 to hold that not only non-commercial advertisement, but even commercial advertisement
which is not tainted with fraud, or illegal activities such as betting or gambling, sale of prohibited drugs,
which the State is entitled to suppress in the public interest, would be entitled to the protection of Art.
19(l)(a). It follows that the State cannot reduce the area for advertisements in a newspaper, without
regard to the purpose of a commercial advertisement, simply because it has been issued by a
businessman.103
If a person or group of persons publish false advertisements relating to bogus schemes and
dishonestly induce the public to make deposits with them, it amounts to cheating and false
advertisement.104
In India, the use, for professional or commercial purpose of certain emblems and names as specified
in Emblems & Names (Prevention of Improper Use) Act, 1950 has been prohibited. In selecting the
name of any newspaper, periodical or book, therefore, the author, publisher or owner must take care
that the emblem, flag or pictorial representation thereof is not used for advancing the business
prospects of the publication, i.e., the name of Shivaji Maharaj, Mahatma Gandhi or National Flag, the
Rashtrapathi Bhavan or the Raj Bhavan and the like. 105 An advertiser who makes use of such names
for commercial purpose would be liable under the above Act, as per the above decision. But the Act
does not provide that a newspaper which publishes such advertisement shall also be liable for
publishing such illegal advertisement.
The printing, publication or distribution of advertisement of any 'prize competition', 'prize chit' or money
circulation scheme, which are in the nature of gambling, not involving any scheme is punishable under
Prize Competitions Act , 1955 and Prize Chits and Money Circulation Schemes (Banning) Act, 1978.
These transactions being in the nature of gambling, the State is entitled to suppress or curtail them to
protect the public from fraud. Such restrictions are either reasonable restrictions under Art.19(6) or the
transactions themselves are not 'business' for the purpose of Art.19(1)(g). 106
Anybody who 'publishes' any proposal to pay any sum, to deliver any goods or to do or forbear from
doing anything 'for the benefit of' any person to any lottery other than a lottery run authorised by
Government is punishable under s. 294A of IPC . The advertiser himself as well as the printer and
publisher of a newspaper are all liable under this section. 107
The decision in Hamdard Dawakhana (supra) was again considered in Tata Press Ltd. v. Mahanagar
Telephone Nigam Ltd .,108 wherein the application of the decision was very much limited and its
applicability was limited to the facts of the case.
The entire law was considered in the above case and it was held: "A commercial advertisement is a
form of speech. Commercial speech is a part of the freelance of speech and expression guaranteed
under Art. 19(1)(a). However, unlike the First Amendment under the United States Constitution, our
Constitution itself lays down in Art. 19(2) the restriction which can be imposed on the fundamental
rights guaranteed under Art. 19(1)(a). Commercial speech which is deceptive, unfair, misleading and
untruthful would be hit by Art. 19(2) and can be regulated or prohibited by State. It was held that
advertising is considered to be the cornerstone of our economic system. Low prices for consumers are
dependent upon mass production, mass production is dependent upon the volume of sales, and
volume of sales is dependent upon advertising. Apart from the lifeline of the free economy in a
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democratic country, advertising can be viewed as the lifeblood of free media, paying most of the costs
and thus making the media widely available. For a democratic press, the "advertising subsidy" is
crucial. Without advertising, the resources available for expenditure on the 'news' would decline which
may lead to an erosion of quality and quantity. The cost of the 'news' to the public would increase,
thereby restricting its 'democratic' availability.
Advertising as a commercial speech has two facets. Advertising which has no more than a commercial
transaction, is none else than dissemination of information regarding the product advertised. Public at
large is benefited by the information made available through advertisement. In a democratic economy
free flow of commercial information is indispensable. There cannot be honest and economical
marketing by the public at large without being educated by the information disseminated through
advertisements. The economic system in a democracy would be handicapped without there being
freedom of "commercial speech". Therefore, any restraint or curtailment of advertisements would
affect the fundamental right under Art. 19(1)(a) on the aspects of propagation, publication and
information.
Examined from another angle, the public at large has a right to receive the "commercial speech".
Article 19(1)(a) not only guarantees freedom of speech and expression, but also protects the rights of
an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are
concerned, their fulfilment has to be guided by the information disseminated through the
advertisements. The protection of Art. 19(1)(a) is available to the speaker as well as the recipient of
the speech. The recipient of "commercial speech" may be having much deeper interest in the
advertisement than the businessman who is behind the publication. An advertisement giving
information regarding a life saving drug may be of much more importance to the general public than to
the advertiser who may be having purely a trade consideration.
It was held in that case that a telephone directory is an essential instrumentality in connection with the
peculiar service which the Union of India offers for the public benefit and convenience. But publication
of advertisement which is a "commercial speech" cannot be denied to a person who compiles a
buyer's guide comprising of advertisements given by the traders, businessmen and professionals and
the only basis or criteria applied for acceptance or publication of the advertisement is that the
advertiser should be a trader, businessman or professional. It is not a "telephone directory" as
contemplated under Rules 458 and 459 of Telegraph Rules, and the Government cannot prohibit the
publication of such advertisements, which will amount to violation of Art. 19(2). Paid advertisements
comprising "Yellow Pages" attached to a telephone directory is not a public utility service.
The distribution of samples of the drugs to the doctors to make them aware about the availability of
such drugs in market, in relation to the cure of a particular affliction is tantamount to "advertisement",
publicity and sales promotion.1
But no newspaper can claim advertisement from Government as a matter of fundamental right. The
freedom of speech and expression envisaged by the Constitution is not a borrowed concept procured
or obtained from Government as a lease at the cost of public fund. It was held in Gulab Nabi v. State
of J&K ,2that if the State chooses to completely stop the issuance of advertisement in the newspapers
in the country, no newspapers can have any grievance or seek relief from the Court compelling the
State to issue advertisement. However, the State must act rationally and allot advertisement without
any bias or favour. The policy of grant of largesse in the form of distribution of commercial
advertisement must be conveyed and structured by rational, relevant and non-discriminate standard.
The Court directed that while framing the policy for issue of commercial advertisement, the coverage
circulation and the section of the people covered by the particular newspaper should be taken into
consideration. The State should not patronise any newspaper for the purpose of commercial
advertisement.3
In Indian Express Newspapers case4, it was held that for a democratic press "the advertising subsidy
is crucial". With the curtailment of advertisement, the price of newspaper will be forced up and this will
adversely affect its circulation and that will be a "direct" interference with the freedom of speech and
expression.
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An advertisement, though a medium of expression, in so far as it publishes advertisements from

advertisers of different categories, is for monetary consideration and the same can be brought under
legal control, i.e., where the matter which is to be advertised is illegal and this act of publishing it
makes the publisher liable for punishment. The Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954 is one such law where such prohibition is made. The Act seeks to penalise
advertisement of drugs and magic remedies which "cause the ignorant and the unwary to resort to
quacks who indulge in such advertisements for treatment which cause great harm". 5
An advertisement of abortion by a private advertiser would be an offence (under s s. 312-15 of the
Indian Penal Code ) or an abatement of the said offence, especially when the same is against the
provisions of Medical Termination of Pregnancy Act , 1971. The Act, however, makes an abortion
lawful only if it is done by a registered medical practitioner at (1) a hospital established or maintained
by Government; or (2) a place for the time being approved for the purpose of the Act by the
Government In Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, 6
even the testing devices or performing diagnostic techniques have been prohibited and breach of the
provisions will be visited with punishment.
Any advertisement which is likely to portraying the commission of offences, act s of violence or cruelty
or incidents of a repulsive or horrible nature in such manner which would tend to corrupt a young
person under the Young Persons (Harmful Publication) Act, 1956 is also prohibited. Section 292 (d)
of IPC prohibits obscene publications or advertisements.
False advertisements relating to a bogus scheme dishonestly induce the public to make deposits to
cheating and, therefore, the same is prohibited.
Mandatory provisions of compelled speech cannot be construed as a restraint on freedom of speech
and expression. The statutory obligation that any food product must carry on its package the list of
ingredients used in its preparation, or must print its weight or the obligation that cigarette cartons
should carry a statutory warning or a provision that in each cinema theatre the exhibitor of film must
show a film which may be educational or scientific or documentary film or news of current events does
not violate Art. 19(1)(a).7
Where the publication of an advertisement constitutes defamation of a third person, because of any
wrong statement in the advertisement or because the matter is contemptuous of the person referred
to, the publisher may be held liable for publication of the defamatory advertisement. 8 The use of a
person's photograph for advertisement for commercial purposes may constitute libel, either because it
is a caricature or otherwise puts the person photographed to ridicule. 9
Symbolic Speech
It has been stated, earlier, that the freedom of expression is not confined to words of mouth or writing
but embraces the right to express one's ideas by visible representation or act ion or by conduct, which
is analogous to speech, e.g., marching, picketing, wearing badges. In American decision, such forms
of expression are labelled as 'symbolic speech'. The perception that speech need not be oral was
recognised atleast as far back as the decision in Stromberg v. California ,10 which held unconstitutional
a Californian law prohibiting display of a real flag as a symbol of opposition to established
Government. In that case, Supreme Court reversed the conviction for having raised a red flag as part
of the daily activities of a Communist Youth Camp. The Court found that the statute was objectionable
because of its vagueness since it permitted punishment for the fair use of "the opportunity for free
political discussion".
Such symbolic speech raises new problems because they are not pure speech which the Constitution
protects, but is accompanied or substituted by conduct which the State is entitled to regulate. The
Court has recognised that atleast some forms of conduct may constitute speech within the meaning of
First Amendment. In West Virginia State Board of Education v. Barnette ,11 it was explained that
"symbolism is a primitive, but effective way of communicating ideas. It is a shortcut from "mind to
mind".12
If it is assumed that some form of non-verbal conduct may constitute speech, the question remains,
how are we to determine what non-verbal conduct merits first amendment protection. The meaning of
 323

symbolic speech under the First Amendment, according to NIMMER,13 "A further element must be
added to the mix before conduct may be considered to be speech. Whatever else may or may not be
true of speech, as an irreducible minimum it must constitute communication - a speaker and an
audience. Without an act ual or potential audience, there can be no first amendment speech right. Nor
the first amendment is to be invoked if there is an audience but no actual or potential speaker. Unless
there is a human communication intending to convey a meaning by his conduct, it would be odd to
think of it as conduct constituting a communication protected by first amendment". 14
In what circumstances, if any, does non-verbal conduct constitute protected "speech"? "A
constitutional distinction between a speech and conduct is specious. Speech is conduct and act ions
speak. There is nothing intrinsically sacred about wagging the tongue or wielding a pen; there is
nothing intrinsically more sacred about words than other symbols. The meaningful constitutional
distinction is not between speech and conduct, but between conduct that speaks communicates and
other kinds of conduct."15
U.S.A.
(A) U.S.A.--Though the decisions on the subject are not always reconcilable with each other, the
following lines of approach may be indicated:

42i)  When 'speech' and 'non-speech' elements are combined in the same course
of conduct, a sufficiently important governmental interest in regulating the non-speech
element can justify incidental limitation on the freedom of speech or assembly. In Arcera
v. Cloud Books ,16 the Court upheld an incidental restriction on speech - a law requiring
the closure of a building used for prostitution as applied to an adult book store. Similarly
in US v. Albertini ,17 the Court upheld a federal statute prohibiting any person to re-enter
a military base after being ordered not to do so as applied to an individual who sought to
re-enter for speech purposes.
In this sphere, therefore, State regulation would be justified if--(a) it is within the
constitutional power of the State; (b) it furthers an important or substantial governmental
interest; (c) the governmental interest is unrelated to the suppression of free expression;
(d) the incidental restriction on the alleged First Amendment freedom is no greater than
is essential to the furtherance of that interest. 18 Relying on O'Brien's decision,19 the
Supreme Court in Clerk v. Community for Creative Non-Violence ,20 upheld the National
Park Services ban on sleeping in national park. Rejecting the challenge of a group that
sought to conduct a "sleep-in-park" near national capital to dramatize the plight of
homeless, the Court observed that the prohibition was not designed to restrict
expression and served the valid purpose of maintaining the park "in an attractive and
intact condition".
40ii)  But though conduct cannot be suppressed where it would constitute a
suppression of a communication,21 it would be valid if the law is not specifically aimed at
the freedom of expression, but operates generally, to protect some legitimate interest of
the State.22
Thus, even the burning of the national flag has been upheld as a legitimate mode of
protest against governmental conduct where the accompanying speech of the defendant
did not urge anybody to do anything unlawful.23 In Texas v. Johnson ,24 in which a sharply
divided the Court struck down the conviction of a political protester who had violated
Texas flag desecration statute by burning American flag. According to the Court's
majority opinion, the flaw in the Texas law was that it permitted the use of the flag to
show support for the nation and its institutions, but prohibited its use to register dissent.
Thus because a ban on flag desecration was not viewpoint neutral, it vitiated First
Amendment. Immediately after the decision in Johnson,25 the Court upheld a district
court ruling that Flag Protection Act violated the First Amendment. The Court said: "The
Government contention that Flag Protection Act is constitutional because unlike the
statute addressed in Johnson,26 the Act does not target expressive conduct on the basis
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of content of its message. The Government asserts an interest in "protecting the physical
integrity of the flag under all circumstances" in order to safeguard the flag's identity as
the unique and unalloyed symbol of the nation". Although the Flag Protection Act
contains no explicit content-based limitation, on the scope of prohibited conduct, it is
nevertheless clear that the Government's asserted interest is "related to suppression of
expression" and concerned with the content of such expression. The Government's
interest in protecting the "physical integrity" of a privately owned flag rests upon a
perceived need to preserve the flag's status as a symbol of our Nation and certain
national ideals. Because the secret destruction of a flag in one's own basement would
not threaten the flag's recognised meaning, the Government's desire to preserve the flag
as a symbol for certain national ideals is implicated only when a person's treatment of
the flag communicates a message to others that is inconsistent with those ideals.
Moreover, the explicit exemption for disposal of "worn out or soiled" flags protects certain
acts traditionally associated with patriotic respect for the flag. The Act suppressed
expression out of concern for its communicative impact. Its restriction on expression
cannot be justified without reference to the content of the regulated speech. The Act
therefore must be subject to "the most exacting scrutiny" and for reasons stated in
Johnson,27 the Government's interest cannot justify its infringement on First Amendment
Rights".28 Similarly, the wearing of a military uniform without authority cannot be
penalised if it is used in course of a theatrical performance, without discrediting the
armed force.29
On the other hand, the mere burning of a war recruitment registration certificate may be
penalised in the exercise of the War power of Congress, where the statute penalises any
sort of mutilation or destruction, whether it is committed for the purpose of protesting
against the war efforts of the United States or otherwise. 30 In this case, the law was
sustained because it was not aimed at the suppression of communication, specifically. 31
25iii)  In deciding whether particular conduct possesses sufficient communicative
elements to bring the First Amendment to play, the Supreme Court of America has asked
itself the question whether "an intent to convey a particular message was present, and
whether the likelihood was great that the message would be understood by those who
viewed it. In other words, the protection of the First Amendment has been extended to
"expressive conduct" or what is called "symbolic speech". The Supreme Court has
recognised the expressive nature of students black armbands to protest American
military involvement in Vietnam.32 Picketing about a wide variety of causes is also a
"symbolic speech".33 In some cases, even nude dancing has been held to include an
expressive conduct protected by First Amendment. Barnes v. Glen Theatre ,34 but it was
held therein that it can be suppressed or prohibited on the basis of "undesirable
secondary effects". 'Peaceful picketing', is another form of 'symbolic speech' which is
protected. In Thornhill v. Alabama ,35 it was held that State statute which prohibited all
peaceful picketing was unconstitutional. Display of placards by peaceful picketers is also
constitutionally protected.36 But, peaceful picketing if used as a means in restraint of
trade in violation of State's anti-trust laws, such exercise is not protected as a right to
free speech.37
The right of union members to enter the privately owned shopping Centre to picket a store located
within the Centre is not protected under First Amendment. It was held that First Amendment did not
recognise the right to enter a private shopping Centre to advertise the strike and right to free
expression has no part to play in such cases.38 Similar was the view held in Trisby v. Shultz ,39 where
the validity of an ordinance enacted for prohibiting the residential picketing that focus and takes place
in front of a particular residence was upheld. It was observed that privacy of the house is of the
highest order in a free and civilized society. It was held that even a solitary picket can invade
residential privacy.
Similarly, it has been acknowledged that the display of a flag, banner, badge or other device to
express 'opposition to organised Government', is entitled to the same protection as speech used for
the same purpose.40
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But in Food Employee Local 590 v. Logan Valley Plaza ,41 it was held that a peaceful labour picketing
of a business enterprise within the shopping center cannot constitutionally be prohibited by the owner
of the shopping center. But this decision did not last for long. It was overruled in Hudgems v. NLRB ,42
wherein, the Court said that a privately owned shopping center could validly exclude labour picketers
from entering the center for picketing a business within the center. Earlier in Lloyd Corpn. v. Tanner 43
also, the Court held that a privately owned shopping center could validly exclude people wishing to
distribute handbills protesting Vietnam War. In that case, the Court said: "....the property of a large
shopping center is "open to the public" serves the same purpose as a business district of a
municipality and is functionally similar to facilitate customarily provided by municipalities, all members
of the public, whether invited as customers or not, have the same right of free speech as they would
have on similar public facilities in the streets of a city or town.
India
(B) India.--I. An attempt to distinguish between 'speech' and 'action', 44 was discernible in Art. 31D
which was inserted in the Constitution, by the Constitution (42nd Amendment) Act, 1976. This Article
provided that if a law was passed for the prevention or prohibition of any 'antinational activity', such
law would be immune from constitutional invalidity on the ground of contravention of Art. 19 (inter alia).
Anti-national activity was defined in Cl. (4)(b) of the Article as 'any act ion taken by an individual or
associations for any of the purposes specified in sub-clauses. (i)-(v) of that Clause, which included--(i)
support of cession or secession of the territory of India; (ii) disrupting the sovereignty or integrity of
India; (iii) overthrowing by force the Government by law established; (iv) creating internal disturbance
or disruption of public services; (v) disrupting harmony between different sections of the people.
Article 31D has, however, been repealed by the Constitution (43rd Amendment) Act, 1977.
II. Of the existing laws, mention should be made of the Emblems and Names (Prevention of Improper
Use) Act, 1950, which prohibits the use, inter alia, of the National Flag, or the name, emblem or
pictorial representation of the national leaders of India, the President, the Prime Minister or a
Governor (as specified in the Schedule to the Act), for commercial purposes. The restrictions imposed
by this Act have been upheld as 'reasonable restrictions' upon the rights guaranteed by Arts. 19(1)(f)-
(g).45 The same view should be taken when the commercial use is blended with some instructive
purpose, which may claim to come under the freedom of expression.
III. If a person insults the Constitution of India or the national flag or any national emblem or the
national anthem, by burning, desecration or otherwise, he would be punishable under s. 124B which
was sought to be inserted in the Penal Code, by the Indian Penal Code (Amendment) Bill, 1972,
which, as reported by a Joint Select Committee, was pending in Parliament. In Bijoe Emmanuel v.
State of Kerala ,46 it was held that because of their religious belief, a person did not sing National
Anthem, but at the same time, stood up in silence showing respect to National Anthem, it amounts to
freedom of speech and expression. Similarly, right to fly the National flag freely with respect and
dignity is a fundamental right of a citizen. Flying the National flag is a symbol of free speech, but the
same is subject to reasonable restrictions, i.e., it is regulated by the Emblems and Names (Prevention
of Improper Use) Act, 1950 and Prevention of Insults to National Honour Act , 1971. 47
That Bill, unfortunately, has lapsed with the dissolution of Parliament.
Right to Strike and to 'Picket'
U.S.A.
(A) U.S.A.--Under the American Constitution it has been held that freedom of speech includes the right
of labour to publicise the facts of a labour dispute by peaceful picketing,48 for, picketing is an effective
means whereby the people affected may enlighten the public on the nature and cause of the labour
dispute.49 Hence, the State cannot absolutely prohibit picketing, regardless of the purpose and
circumstances.50Picketing, demonstrating and similar act ivity usually consist in walking or marching
around a building or a place carrying signs or placards protesting against something that has been or
is being done by the person picketed. Thus, a person engaged in such activities is not only
communicating ideas - that is exercising freedoms of speech or press - but is pursuing a course of
conduct in addition to constitutionally protected speech and press. This is not a new idea either with
 326

me or the Supreme Court since it has long been accepted constitutional doctrine that the First
Amendment presents no bar to the passage of laws regulating, controlling or entirely suppressing
such a course of marching conduct even though speaking or writing accompany it. A picketing is made
up of speech and press plus other conduct, so are what are popularly called demonstrations and
street marches. And the conduct of demonstrators and street marchers like that of picketers can be
regulated by Government without violating First Amendment. 51
Boycotts undertaken for purposes of political expression rather than for economic coercion are a
protected form of expression.52 In that case, the Court rejected the claim for damages on the ground
that the boycott was intended to express, political views and boycott necessarily involves association
to achieve its ends, the State could not award compensation for the consequence of non-violent,
protected act ivity. But in International Longshoremen's Association v. Allied International ,53 it was held
that where the boycott was to coerce to impose the view, it is not a protected expression.
But though the right to picket has been held to be included in the freedom of speech guaranteed by
the Constitution, the Supreme Court has held that it "cannot be dogmatically equated with the
constitutionally protected freedom of speech", 54 and that, accordingly, "picketing can be subjected to
controls that would not be permissible in the case of pure speech".55
The reason for this differentiation, according to the Supreme Court, 56 is "the compulsive features
inherent in picketing, beyond the aspect of mere communication as an appeal to reason":
"Industrial picketing is more than free speech, since it involves patrol of a particular locality and since
the very presence of a picket line may induce action of one kind or another, quite irrespective of the
nature of the ideas which are being disseminated .....Publication in a news paper, or distribution of
circulars, may convey a picket line. But the very purpose of a picket line is to exert influences, and it
produces consequences, different from other modes of communication. The loyalities and responses
evoked and exerted by picket lines are unlike those flowing from appeals by printed word". 57
In truth, the numerous American decisions relating to picketing are not uniform, and disclose a
wavering of judicial opinion in view of the twin aspects of picketing--(a) as a means of persuasion and
communication relating to a labour dispute and (b) as an economic weapon used by industrial
combatants.58 Though the State is not entitled to restrict the former aspect without more, a case for
State regulation of the latter aspect is obvious, even though there is an incidental impact on the
freedom of expression and association.59
Thus, though the right to picket cannot be banned on account of isolated incidents short of violence, 60
even peaceful picketing may be controlled where its object is the commission of an unlawful act.61 In
each case, the Court has to determine whether a particular conduct is "an abuse of the right to picket
rather than a means of peaceful and truthful publicity".62 The right is, therefore, lost--

42a)  If the picketing is attended by violence.63

44b)  Even where it is peaceful, it is competent for the State to restrain it--
8. If it is act uated by malice.64
8. If the purpose of picketing becomes unlawful, owing to contravention of a
law which is otherwise valid,65 say, prohibiting combination in restraint of trade; 66 or
prohibiting interference with production by concerted action, 67 or prohibiting
picketing in any Court for the purpose of obstructing justice; 68 when its object is to
compel an employer to violate a law;69 or it is against public policy as declared by
the Courts,70 or as disclosed by other laws made by the State,71(e.g., to avoid
'community tensions'72) or to prevent a union to coerce the employer to compel his
employees to join the union.73
5. If it is used against a 'neutral', i.e., an employer who is not involved in the
labour dispute, in order to bring, pressure upon another employer who is so
involved,74 or if the picketing has no nexus with an immediate employer-employee
dispute,75 or it is exercised outside the area where the industrial dispute exists. 76
22. Encouraged by judicial pronouncements upholding the curtailment of the
right of picketing by reasons of public policy, Congress has enacted the Labour-
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Management Reporting and Disclosure Act of 1959 which may be said to be a

statute directly regulating the right to picket. Though this Act preserves the right of
"picketing or other publicity for the purpose of truthfully advising the public
(including consumers), that an employer does not employ members of, or have a
contract with, a labour organization", picketing becomes unlawful if the "effect of
such picketing is to induce any individual employed by any other person in the
course of his employment, not to pick up, deliver or transport any goods or not to
perform any services". The statute also empowers the National Labour Relations
Board to prohibit picketing where it is attended with unfair labour practices.
4. While the State may prohibit picketing which would involve trespass on
private property77 it cannot prohibit it from being practised on public property or on
property which is generally open to the public,78 unless it is unlawful because of
any of the act ivities mentioned above. If the picketing is peaceful and otherwise
lawful, Government cannot suppress it on the ground of its purpose. 79

U.K.
(B) England.--Peaceful picketing in furtherance of a trade dispute is legalised by s. 2 of the Trade
Disputes Act, 1906, replaced by the Industrial Relations Act, 1971, subject to statutory conditions. 80
But in the absence of a trade dispute, a picketer may be liable for nuisance, 81 intimidation82 or
conspiracy.83
Thus, it is actionable nuisance to 'watch and beset' another's premises to compel him to conduct his
business in accordance with the picketer's demands--to which it is no defence that it was resorted to
for the purpose of peaceably persuading others.84 Under the Trade Union and Labour Relation
(Consolidation) Act, 1992, (s. 241) it is an offence for a person "wrongfully and without legal authority"
to "watch and beset" premises where a person works or happens to be with a view to compelling him
or her to abstain from doing something which he or she is entitled to do. More usually perhaps
picketing may lead to an arrest for obstructing the highway under the Highways Act, 1980 (s. 137). A
picket is no more a lawful use of the highway than is any other kind of assembly. 85 It is held in Thomas
v. NUM (South Wales Area) ,86 that pickets would be liable not only to the owner or occupier of the
premises, being picketed, but also to workers (and presumably others) who were 'unreasonably
harassed' in entering the premises. Special rule now governs picketing in case of trade disputes which
is now provided in Trade Union & Labour Relation (Consolidation) Act, 1992 which says:- "It shall be
lawful for a person in contemplation or furtherance of a trade dispute to attend (a) at or near his own
place of work; or (b) if he is an official of a trade union at or near the place of work of a member of that
Union whom he is accompanying and whom he represents, for the purpose only of peacefully
obtaining or communicating information or peacefully persuading any person to work or abstain from
working. This provision restricts the freedom to picket in a trade dispute to one's own place of work.
Secondary picketing - the picketing of other work places - is thus excluded. 87There is no restriction in
the Act on the number of persons who may picket in this way, but a Code of Practice on Picketing
issued by the Dept. of Employment (with Parliamentary approval) recommends no more than six
people at any particular site, although this could be reduced if the police are of the view that to prevent
a breach of the peace, a smaller number is necessary. Even if these requirements are met, the
picketers have no right to stop the vehicles and to compel drivers and their occupants to listen to what
they have to say. In Broome v. DPP ,88 House of Lords refused to read such a right on the ground that
it would involve reading into the Act words which would seriously diminish the liberty of the subject.
The Court said that everyone has a right to use the highway free from the risk of being compulsorily
stopped by any private citizen and compelled to listen to what he or she does not want to hear. Pickets
thus have a right to seek to communicate information or to seek peacefully to persuade, but not to
stop persons or vehicles.
The most important powers relied on by the police in connection with maintenance of public order at
picket lines are those connected with breach of peace. These powers backed upon by the offences of
obstructing and assaulting police officer in the execution of his duty and obstructing the highway have
enabled the police to limit the number of pickets and their activities. The restrictions now recognised
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as applying to police powers to keep the peace apply to the use of these powers in the context of
picketing.89
An agreement to commit such nuisance or any other wrong would also be act ionable as conspiracy. 90
Picketing would not be allowed in the airport.91
Canada.
(C) Canada.--The Canadian Supreme Court92 is of the view that peaceful picketing is a form of
expression, the freedom of which is guaranteed by Art. 2(b) of the Canadian Charter of Rights, 1982,
because by this means the labour Union makes a statement to the general public that it is involved in
a dispute and that it solicits the assistance of the public in honouring the picket line. It would cease to
be protected if it is attended with threats of acts of violence, destruction of property or other clearly
unlawful conduct.93
(D) India.--It has already been clear that in the U.S.A., there has been a remarkable change in judicial
opinion relating to picketing. Starting in 1937 with the unqualified view that picketing was a medium of
expression, it has been hedged in with numerous qualifications and exceptions including the widest
category of 'public policy', by recent legislation obstruction of the employees in performing services to
the employed has been made illegal, and it has, generally, been acknowledged that "picketing may be
subject to greater State control than other forms of communications". 94
In India, from the expression 'reasonable restrictions', it is evident that even though the posting of
picketers with signs and slogans outside the place of employment to publicise the grievances of the
employees be treated as a mode of expression, it would be possible for the State to restrict even
peaceful picketing on the following grounds:

43a)  That, if allowed, it would tend to disturb 'public order', owing to possible
conflicts between the picketers and the persons subject to 'picketing', 95 or incitement to
violence.96
45b)  That it would encroach upon another fundamental right belonging to the
persons who are subjected to the picketing, viz., the right of the employers to carry on
their trade or business and of the employees to work without let or hindrance [which is
guaranteed by Art. 19(1)(g)],97 or the right of movement [which is guaranteed by Art. 19(l)
(d)]98 where the picketers cause physical obstruction.
In this connection, the provision in Sections 7 of the Criminal Law Amendment Act , 1932, may be
noted. It says--

2(1)  Whoever--
20. with intent to cause any person to abstain from doing or to do any act which
such person has a right to do or to abstain from doing, obstructs or uses violence
to or intimidates such person or any member of his family or person in his employ,
or loiters at or near a place where such person or member or employed person
resides or works or carries on business or happens to be or persistently follows
him from place to place, or interferes with any property owned or used by him or
deprives him of or hinders him in the use thereof, or,
20. loiters or does any similar act at or near the place where a person carries on
business, in such a way and with intent that any person may thereby be deterred
from entering or approaching or dealing at such place,

shall be punished with imprisonment for a term which may extend to six months, or with a fine which
may extend to five hundred rupees or with both .......".
 329

So far as this provision penalises obstruction, use of violence or intimidation, it has the constitutional
shield of 'interests of public order', but in so far as it penalises a mere loitering at or near a place of
employment without any overt act which "is likely to lead to a disturbance of the public tranquillity", 99 it
is difficult to uphold it as a valid restriction in the interests of 'public order'. 100 Peaceful attendance for
the purpose of obtaining information or communicating information or peaceful persuasion to abstain
from work, if it is in furtherance of a trade dispute is not, as stated earlier, illegal in England. In India, it
cannot be made illegal 'in the interests of public order' because the tendency of such acts to cause
violence cannot be said to be 'proximate'.101
The Supreme Court has laid down, in a number of cases 102 that there is no fundamental right to strike
in India, under any of the sub-clauses of Art. 19(l) of the Constitution.
Demonstrations which are violent and disorderly are within the ambit of freedom of speech and
expression, but strike is not.103 A provision imposing a ban on strikes would not be violative of freedom
of speech and expression.104 There is a distinction between a 'hartal' and 'bandh'. There is no right to
call for or enforce a 'bandh' which interferes with the exercise of fundamental right of others.
Communist Party of India (M) v. Bharat Kumar ,105

1  the decision in Bharat Kumar K. Palicha v. State of Kerala ,1 was affirmed. In V.

Vengan Re,2 picketing a north Indian shop over dissuading intending customers from
purchasing in that shop was held to be not warranted by Art.19(1)(a). Article 15(1)
prohibits discrimination on the ground of place of birth and if the State Legislature were
to pass an Act forbidding South Indian to purchase from North Indian shops, such an Act
would be unconstitutional. Therefore, the picketing and the propaganda in question, that
contains an unconstitutional germ in support of which the Constitution could be invoked.
The conduct of the petitioner if carried to its extreme conclusion would undermine the
security of State by creating disaffection and ultimate strife and hatred between South
Indians and North Indians residing and doing business in the South. 3
In Bharat Kumar v. State of Kerala ,4 the Court said that a call for bandh is clearly different from a call
for general strike or hartal. There is destruction of public property during a bandh. A call for a bandh by
any association, organisation or political party and enforcing of that call by it is illegal and
unconstitutional.
While affirming the above decision, the Supreme Court in Communist Party of India (Marxist) v. Bharat
Kumar ,5 Supreme Court also declared why bandh should be banned. In the name of hartal or bandh
or strike, no person has any right to cause inconvenience to any other person or to cause in any
manner a threat or apprehension of risk to life, liberty and property of any citizen or destruction of life
and property and the least to any Government or public property. The Court pointed out that it was
high time that the authorities concerned took serious note of this requirement while dealing with those
who destroy public property in the name of strike, hartal or bandh. Any soft or lenient approach for
such offenders would be an affront to the rule of law and challenge to public order and peace.
In Ranchi Bar Assn. v. State of Bihar ,6 the Patna High Court, following the above decision of Supreme
Court, has ruled that no party has a right to organise a bandh causing/compelling the people by force
to stop them from exercising their lawful act ivities. The Government is duty bound to prevent unlawful
activities like bandh which invades people's life, liberty and property. The Government is bound to pay
compensation to those who suffer loss of life, liberty or property as a result of bandh because of the
failure of the Government to discharge its public duty to protect them. In appropriate cases, even the
organisers of the bandh may be directed to pay compensation. Any organisation which interferes with
the functioning of the Court commits contempt of Court and can be punished accordingly. A peaceful
strike which does not interfere with rights and properties of the people is however not illegal. In that
case cited above, Patna High Court awarded compensation for the death of a person because of
failure of Government to take appropriate act ion and provide adequate protection to people's life.
It was held in B.R. Singh v. Union of India ,7 that though there is no fundamental right to strike, it is one
of the recognised modes of redressal of workers under the Industrial Disputes Act , 1947 under
certain circumstances and subject to restriction imposed by the Act.
 330

Trade Unions have no guaranteed right to an effective collective bargaining or to strike, either as part
of collective bargaining or otherwise. The right to strike or to declare a lockout may be controlled or
restricted by appropriate industrial legislation.8 In regard to right of Government employees to strike, it
was held: "In a society where there is large scale unemployment and number of qualified persons
eagerly waiting for employment in Government departments or in the public sector undertakings,
strikes cannot be justified on any equitable ground. In the prevailing situation, apart from being
conscious of rights, there has to be full awareness of duties, responsibilities and effective methods of
discharging the same. For redressing their grievances, instead of going on strike, if employees were to
do some more work honestly, diligently and efficiently, such gesture will not only be appreciated by the
authority, but also by people at large. The reason being, in a democracy even though they are
Government employees, they are part and parcel of the governing body and owe a duty to the
society".9
In James Martin v. State of Kerala ,10it was held that irrespective of whether bandh or hartal or strike
has any legal sanctity, is of little consequence, and there is urgent need to control such act s with an
iron hand. It was held that in the name of hartal or bandh or strike no person has any right to cause
any inconvenience to any other person or to cause in any manner a threat or apprehension of risk to
life, liberty or property of any citizen or destruction of life and property and the least to any
Government or public property. A call for hartal, bandh or strike provides for no licence to take law into
their own hands and any soft or lenient approach for such offenders would be an affront to the rule of
law and a challenge to public order and peace.
In regard to lawyers' notice to strike, it was held that they have no such right, or to even to go on with
a token strike or to give a call for boycott. Nor can they, while holding vakalath on behalf of clients,
abstain from the Courts, in pursuance of a call for strike or boycott. Bar Council or Bar Association
cannot be permitted to call for a meeting to consider a request for strike or boycott. It was held that
only in rarest of rare cases involving dignity, integrity and independence of the Bar or the Bench, the
Courts may ignore a protest abstention from work not exceeding one day. It was observed, that if any
such issue arises, it is for the Chief Justice or District judge to decide the same whose decision shall
be final and the Courts are not obliged to adjourn cases on the ground of lawyers' strike. The Courts
are bound to proceed with the listed matters. Any lawyer who abstains from work in pursuance of such
call for strike will be personally liable for costs in addition to the liability for damages towards his client
for loss suffered by the client.11 So long as a lawyer retains the vakalathnama for his client and he has
not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a
strike called by Bar Association or any other body of lawyers. If he so abstains, he commits a
misconduct, a breach of professional duty, a breach of contract and a breach of trust as well, and he
will be liable to suffer all the consequences, thereof. It was further held that assuming that the lawyers
are trying to convey their feelings or sentiments and idea through the strike in exercise of their
fundamental right to speech and expression guaranteed by Art.19(1)(a), the exercise of that right will
also come to an end when such exercise of the right threatens to infringe the fundamental right of
another. Such a limitation is inherent in the exercise of right under Art.19(1)(a). 12 In Raman Services
Pvt. Ltd. v. Subhash Kapoor ,13 it was held that strike by professionals cannot be equated with strike by
industrial workers and any strike by them affects the course of justice. It was held that relationship
between lawyer and client is one of trust and confidence. 14 Any strike by lawyers will violate the right to
speedy trial of the clients which is a fundamental right under Art. 21. 15
Commenting on the decision in Rangarajan's case (supra), learned lawyer and Columnist A.G.
Noorani has said that the view that Government servants have no right to strike requires
reconsideration. Learned author has taken into consideration Art. 8(1)(d) of the International Covenant
on Economic, Social and Cultural rights adopted by United Nations General Assembly, which protects
the right to strike which must be exercised in conformity with the law of the particular Courts. India has
ratified the same and hence it is binding on India. According to the author, only reasonable restrictions
can be imposed on the right to strike and not a total denial. 16
Right to Freedom of Expression of Government Servants
U.S.A.
 331

(A) U.S.A.--As a citizen, a Government servant is entitled to exercise the First Amendment
Freedoms,17 but the State has a countervailing interest in securing efficiency and integrity of the public
services.18 In that case, the Court said it rejects the idea that teachers may constitutionally be
compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment
on matters of public interest in connection with the operation of the public school in which they work.
But the State has interest as an employer in regulating the speech of its employees that differs
significantly from those it possesses in connection with regulation of the speech of the citizenry in
general. The problem is to arrive at a balance between the interest of the teacher as a citizen, in
commenting upon matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees. 19
In United States v. National Treasury Employees' Union ,20 the Court voided a federal law that forbade
federal employees from receiving monetary honorarium for speeches or articles. The ban was
challenged by such federal workers. The Court concluded that their speech was of public concern,
that ban on money honorarium imposed a 'significant burden' on speech and the Government's
interest in preventing actual and apparent misuse of official power was insufficiently supported with
respect to the class of challengers, relatively low-level executive branch employees. The State is,
therefore, entitled to impose reasonable conditions upon the exercise of such right to ensure
efficiency, integrity and discipline, and the Court has the duty to balance the two interests, 21--individual
and social.
In view of the public interest in the fitness, suitability, 22 integrity and impartiality of public employees,--

44a)  The State (as an employer) may require an employee to answer questions 23
relevant to such interest, e.g., relating to his associations24 or to account for the
performance of his duties or trusts25 and, on the refusal of an employee to answer such
questions, the State is empowered to discharge the employee. 26 A candidate for
employment may be similarly subjected to such questions.
The employee cannot be compelled to answer a question where it would take away from
him the privilege against self-incrimination.27
46b)  The State may require a public employee to take a 'loyalty oath', 28e.g., a
declaration that the person never was nor is a member of an organization which
advocates the overthrow of the Government by violence, as a qualification for
employment.29
29c)  A public employee may be dismissed if he makes a 'political' speech, i.e., a
speech to advance the cause of a particular political party, 30 or political campaigning.31
13d)  A public employee may be penalised for soliciting contributions for political
purposes.32
But--
9. Where the questions are not relevant to the employment, a public servant
cannot be held to have given up his freedom of speech and expression by reason
of the mere fact of his having taken up the employment. 33
9. The provision for a 'loyalty oath' which bases employability solely on the fact
of membership of a certain organization, irrespective of any knowledge of the
member of the subversive character of the organization, is patently arbitrary and
violates 'due process'.34
6. A public teacher does not forfeit his right to make comments on the
operation of the public schools in which they work, unless they are recklessly
false.35 A dismissal made on the ground of honest but untrue comment will be
quashed.36

To keep the civil service non-political, the Congress and various States have enacted laws that forbid
such employees from engaging in act ive political campaign. The Hatch Act which forbids certain
executive branch employees from any act ive part in political management or in political campaign has
 332

been upheld against two challenges.37In both cases, the Court observed that the problem is to balance
the speech interest of the employee and obviously important Government interest sought to be served
by the Hatch Act. The objective of the Act was, (1) unbiased administration of the law, both in actual
fact and in appearance; (2) preventing recruitment of Government workers into a powerful, invincible
and perhaps corrupt political machine; and (3) ensuring that Government employees are free from
pressure to vote in a certain way or perform political chores in order to curry favour with their superiors
rather than to act out of their own beliefs.
First Amendment challenges to patronage employment have eventually in doctrine that permits
political party affiliation to be used as the criterion for hiring, dismissal or promotion decision only
where party affiliation is an appropriate criterion to ensure effective job performance. The burden of
proof is upon the Government to establish that party affiliation is appropriately employed in connection
with any particular job and must do so by showing that patronage practice at issue is "narrowly
tailored to further vital governmental interests". In Elrod v. Burns ,38 a Democrat who became a Sheriff
promptly discharged Burns, a process server who was a Republican. The Court concluded that
patronage dismissals may be justified by the need for political loyalty of employees in order to
implement the policies resulting from the electorate's decision, but that interest was inadequate to
validate patronage wholesale. Limiting patronage dismissals for policy making decision is sufficient to
achieve governmental end; the Court suggested that patronage dismissals must be shown to be "the
least restrictive alternative" to accomplishment of the legitimate Government end.
In Branti v. Finkel ,39 the Court broadened the law declared in Elrod,40 that the discharge of two
assistant public defenders solely because of their Republic Party affiliation violated free expression.
The Court said: "The ultimate inquiry is not whether the label "policy-maker" or "confidential" fits a
particular position; rather, the question is whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective performance of public office involved." 41
India
(B) India.--In the interests of the integrity of and discipline in the services, Government may prohibit a
Government servant--

45a)  to criticise in public any policy pursued or action taken by the Government;
47b)  to ask for or accept or in any way participate in the raising of any
subscription or other pecuniary assistance in pursuance of any object whatsover, without
the previous sanction of the Government;42
30c)  to participate in a strike;43 In Tamil Nadu Government Servants' Conduct
Rules, there is no statutory provision empowering the employees to go on strike. On the
contrary, there is a prohibition to go on strike. The Court said that apart from statutory
rights, Government employees cannot claim that they can take the society at ransom by
going on strike. The Court said, even if there is any injustice to some extent, in a
democratic welfare society, they have to resort to the machinery provided under different
statutory provisions for redressal of their grievances. The Court further observed that for
redressing their grievances, instead of going on strike, if the employees were to do some
more work honestly, diligently and efficiently, such gesture would not only be appreciated
by the authorities, but also by people at large. The reason being, in a democracy, even
though they are Government employees, they are part and parcel of the governing body
and owe a duty to the society.44
14d)  to disclose any information obtained by them in the course of performance
of their official duties, e.g., in relation to income-tax, election and the like; 45
8e)  to hold a meeting at a place which is not open to the general public. 46
When certain railway employees belonging to a Workers' Union on an agitation for general strike in
order to paralyse communication and movement of essential commodities, they were charge-sheeted
and thereafter their services were terminated. It was held that the employees have a fundamental right
to form an association, but they have no fundamental right to continued employment by the State and
that their services terminated by the State cannot be complained of infringement of any fundamental
 333

right. The order of termination also did not prevent the workers from continuing their trade union act
ivities.47
Freedom of speech and expression of a person in public employment is not absolute in nature.
Conduct Rules are not meant to curtail the freedom of speech or expression or freedom to form
association or union. Rules can be framed to maintain the discipline within the service, to ensure
efficient performance or duty and to protect the interest and prestige of the employer. If employee
disobeys the service rules or displays negligence, inefficiency or insubordination and does anything
detrimental to the interest and prestige of the employer or acts in conflict with official instructions or is
guilty of misconduct, is liable to the disciplinary act ion. No employee can enjoy any fundamental right
which is calculated to interfere with fundamental rights of others. A rule which is not primarily designed
to restrict any of the fundamental rights cannot be called in question as violative of Art. 19(1)(a) or
19(1)(c).48
But the restriction will be void if it is not proximately related to any of the grounds of restriction
specified in Cl. (2) of Art. 19.49
Rule 4-A of the Bihar Government Servants Conduct Rules, 1956 which prohibits Government
servants from participating in any demonstration .......with any matter pertaining tohis conditions of
service has been struck down as an unreasonable restriction on the ground that it is wide enough to
include within its prohibition even the demonstrations or expressions of ideas which are peaceful and
orderly and may not, accordingly, lead to a breach of public order. 50
Right to Freedom of Expression of Prisoners
It has been acknowledged, both in the U.S.A.51 and India52 that while it is not for a person, who has
been lawfully imprisoned, to exercise some fundamental rights such as that of free movement or
freedom to practise profession, he cannot be deprived of the right to exercise the freedom of
expression53 subject, of course, to Prison regulations as are necessary to maintain discipline, security
and the like.
India
In India, it has been held that a prisoner does not lose his right of self-expression [Art. 19(l)(a)], except
what is necessitated by the fact of incarceration.

46a)  Thus, a prisoner would be entitled to read and write, 54 and even to publish
his writings, subject to reasonable Prison regulations. 55
48b)  In the same way, a prisoner is entitled to meet his relatives and friends
(para. 54),56 including newsmen.57
In Sunil Batra's case (para. 54),58 IYER J, observe--
"Visits to prisoners by family and friends are a solace in insulation ..... [a] human amenity. Subject, of
course, to search and discipline and other security criteria, the right to society of fellowman, parents
and other family members cannot be denied in the light of Art. 19 and its sweep" [para. 54]. 59 In
Charles Sobraj v. Supt., Central Jail ,60 it was observed by JUSTICE KRISHNA IYER: "Whenever
fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice, Court's writ
will run...the parrot cry of discipline will not deter, of security will not scare, of discretion will not
dissuade, the judicial process." Convicts are not by reason of their conviction denuded of all the
fundamental rights which they otherwise possess.61
Right to life connotes "not merely animal existence, but also a much wider meaning which includes a
finer graces of human civilisation.62
The Supreme Court has emphasised that a prisoner, whether a convict, undertrial or detenu does not
cease to be a human being while lodged in jail, he enjoys all his fundamental rights including the right
to life guaranteed by the Constitution. Even when a person is convicted and deprived of his liberty in
accordance with the procedure established by law, a prisoner still retains the residue of constitutional
 334

rights.63 Articles 14, 19 and 21 are available to prisoners as well as freeman. Prison walls do not keep
out fundamental rights.64
Hence, it is only for weighty reasons, to be recorded in writing, that requests for interview with a
prisoner can be refused.65
81 Ghulam v. State, AIR 1990 J&K 1 (para. 7).

82 Dainik Sambad v. State of Tripura, AIR 1981 Gau 30 (para. 20).

83 Ghulam v. State, AIR 1990 J&K 1 (para. 7).

84 Sushil Chaudhary v. State of Tripura, AIR 1998 Gau 28.

85 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438 : (1995) 5 SCC 139.

86 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438 (supra).

87 Sakal Papers v. Union of India, (1962) 3 SCR 842 (861-62)(CB) : AIR 1962 SC 305.

88 Sakal Papers v. Union of India, (1962) 3 SCR 842 (861-62)(CB) : AIR 1962 SC 305.

89 AIR 1962 SC 305 : (1962) 3 SCR 842 (supra).

90 Sakal Papers v. Union of India, (1962) 3 SCR 842 (861-62)(CB) : AIR 1962 SC 305.

91 Curtis Publishing Co. v. Butts, (1967) 388 US 130 (150); Bigelow v. Virginia, (1974) 421 US 809 (829).

92 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

93 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

94 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

95 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

96 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

97 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

98 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

99 Associated Press v. US, (1945) 326 US 1.

100 Sakal Papers v. Union of India, (1962) 3 SCR 842 (861-62)(CB) : AIR 1962 SC 305.

101 Sakal Papers v. Union of India, (1962) 3 SCR 842 (861-62)(CB) : AIR 1962 SC 305.

102 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

103 Bennett Coleman v. Union of India, AIR 1973 SC 106 (125-26, 130-31)(CB) : (1972) 2 SCC 788.

104 Dainik Sambad v. State of Tripura, AIR 1981 Gau 30 (para. 20).

105 A.G. v. Mulholland, (1963) 1 All ER 767 (770-71)(CA) ; A.G. v. Clough, (1963) 1 All ER 420(QBD) .

106 A.G. v. Mulholland, (1963) 1 All ER 767 (770-71)(CA) .

107 Q. Brennan v. Fully, (1935) 65 ILT 115.

108 A.G. v. Mulholland, (1963) 1 All ER 767 (770-71)(CA) .

109 (1981) AC 1096.

110 SeeSecretary of State for Defence v. Guardian Newspapers Ltd., (1985) AC 339 : (1984) 3 All ER 601.

111 Re. an Inquiry under Companies Security (Insider Dealing) Act, 1985, (1988) 1 All ER 203.

112 (1991) AC 1 : (1991) 2 All ER 1(HL) .

 335

113 See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law, 13th Edn., p. 381.

114 (1996) 22 EHRR 123

115 SeeCamelot Group v. Centaur, (1999) QB 124; Ashworth Hospital Authority v. MGN, (2001) 1 WLR 515.

116 Saunders v. Panch Ltd., (1998) 1 WLR 986.

117 John v. Express Newspapers, (2000) 1 WLR 1931; Broadmoor Hospital v. Hyde , The Independent, 4 March 1994.

118 B.S.C. v. Granada Television, (1981) 1 All ER 417(HL) .

119 B.S.C. v. Granada Television, (1981) 1 All ER 417(HL) .

120 B.S.C. v. Granada Television, (1981) 1 All ER 417(HL) .

121 Science Research Council v. Nasse, (1979) 3 All ER 673 (684)(HL) .

122 Science Research Council v. Nasse, (1979) 3 All ER 673 (684)(HL) .

123 Georgius v. Oxford University Press, (1949) 1 All ER 342(CA) .

124 B.S.C. v. Granada Television, (1981) 1 All ER 417(HL) .

125 B.S.C. v. Granada Television, (1981) 1 All ER 417(HL) .

126 A.G. v. Mulholland, (1963) 1 All ER 767 (770-71)(CA) .

127 B.S.C. v. Granada Television, (1981) 1 All ER 417(HL) .

1 Goodwin v. U.K., (1996) 22 EHRR 123; Secretary for Defence v. Guardian Newspapers Ltd., (1984) 1 All ER 453.

2 See alsoX Ltd. v. Morgan-Grampian (Publishers) Ltd., (1990) 2 All ER 1 : (1991) AC 1.

3 Camelot Group PLC v. Centaur Communication Ltd., (1998) 1 All ER 251.

4 B.S.C. v. Granada Television, (1981) 1 All ER 417(HL) .

5 Secy. of State v. Guardian Newspapers, (1984) 3 All E.R 601(HL) ; In re Inquiry, (1988) 2 WLR 33(HL) .

6 Secy. of State v. Guardian Newspapers, (1984) 3 All E.R 601(HL) ; In re Inquiry, (1988) 2 WLR 33(HL) .

7 Saunders v. Punch Ltd . (t/a Liberty Publishing), (1998) 1 All ER 234.

8 Cf. Branzburg v. Hayes, (1972) 408 US 665.

9 Cf. Branzburg v. Hayes, (1972) 408 US 665.

10 Cf. Branzburg v. Hayes, (1972) 408 US 665.

11 Cf. Branzburg v. Hayes, (1972) 408 US 665.

12 (1979) 441 US 153.

13 (1978) 436 US 547.

14 See Massey, American Constitutional Law - Power & Liberties, 2nd Edn., p. 1063.

15 Author's Law of the Press (PHI, 2nd Ed.), p. 549.

16 Alavandar, in re, AIR 1957 Mad 427.

17 Express Newspapers v. Union of India, AIR 1958 SC 578 (619-20) : 1959 SCR 12.

18 Sakal Papers v. Union of India, AIR 1962 SC 305 : (1962) 3 SCR 842.

19 Sakal Papers v. Union of India, AIR 1962 SC 305 : (1962) 3 SCR 842.
 336

20 Sakal Papers v. Union of India, AIR 1962 SC 305 : (1962) 3 SCR 842.

21 Bennett Coleman v. Union of India, AIR 1973 SC 106 : (1972) 2 SCC 788.

22 Narayan v. State of M .P.,(1972) ISCWR 984 (990, 992).

23 Sunday Times v. United Kingdom, (1979) 2 EHRR 245.

24 Attorney General v. BBC, (1981) AC 303 at 352.

25 Harnam Das v. State of U .P.,(1962) 2 SCR 487 : AIR 1961 SC 1662.

26 State of U.P. v. Lalai Singh Yadav, AIR 1977 SC 202 : (1976) 4 SCC 213.

27 See alsoChinna v. State AIR 1971 Mad 448(FB) ; Mohammed Khalid v. Chief Commissioner, Delhi, AIR 1968 Del
13(FB) ; Narayanan v. State of M.P., AIR 1972 SC 2086 : (1972) 3 SCC 676 : (1973) 1 SCR 392.

28 Harnam Das v. State of U .P.,(1962) 2 SCR 487 : AIR 1961 SC 1662.

29 Babulal v. State of Maharashtra, AIR 1961 SC 884 : 1961 (3) SCR 423.

30 SeeState of Maharashtra v. Sangharaj Damodar Rupawate, (2010) 7 SCC 398 : [2010] 8 SCR 328.

31 See alsoHarman Das v. State of UP, AIR 1961 SC 1662 : (1962) 2 SCR 371; Narayan Das Indurkhya v. State of
MP, (1972) 3 SCC 676 : 1972 SCC (Crl.) 720; State of UP v. Lalai Singh Yadav, (1976) 4 SCC 213 : AIR 1977 SC 202.

32 The only remedy against invasion of privacy was an act ion under the common law of Torts.

33 (1979-80) 1 EHRR 524.

34 (1984) 2 WLR 725.

35 (1983) 5 EHRR 347.

36 (1983) 15 EHRR 137.

37 Blount v. Rizzi, (1971) 400 US 410 (417).

38 Near v. Minnesota, (1931) 283 US 697 (715); Schenck v. U.S., (1919) 249 US 47 (52).

39 Jackson, ex parte, (1878) 96 US 727; Public Clearing House v. Coyne, (1904) 194 US 497.

40 U.S. v. Reidel, (1971) 402 US 351; Thirtyseven Photographs, (1971) 402 US 363.

41 Donaldson v. Read Magazine, (1948) 333 US 178; U.S. v. Ballard, (1944) 372 US 78.

42 In re Rapid, (1892) 143 US 110.

43 Donaldson v. Read Magazine, (1948) 333 US 178; U.S. v. Ballard, (1944) 372 US 78.

44 U.S. v. Burleson, (1921) 255 US 407.

45 U.S. v. Reidel, (1971) 402 US 351; Thirtyseven Photographs, (1971) 402 US 363.

46 Hannegan v. Esquire, (1946) 327 US 146; Lewis Publishing v. Morgan, (1913) 229 US 288.

47 Hannegan v. Esquire, (1946) 327 US 146; Lewis Publishing v. Morgan, (1913) 229 US 288.

48 Lamoni v. Postmaster-General, (1965) 14 LEd 2nd 398.

49 Blount v. Rizzi, (1971) 400 US 410 (417).

50 Summerfield v. Sunshine Book Co., (1955) 349 US 921, denying cert. from 221 F 2d. 42.

51 Procunier v. Martinez, (1974) 416 US 396 (413).

52 Rowan v. Post Office Dept., (1970) 397 US 728.

53 (1983) 463 US 60
 337

54 Camara v. Municipal Court, (1967) 387 US 523.

55 Lewis Publishing Co. v. Morgan, (1913) 229 US 228.

56 Hannegan v. Esquire, (1946) 327 US 146; Lewis Publishing Co. v. Morgan, (1913) 229 US 288.

57 Jackson, ex parte, (1877) 96 US 727.

58 (1997) 521 US 844.

59 Narayan v. State of M .P., (1972) ISCWR 984 (990, 992) : AIR 1972 SC 2086 : (1972) 3 SCC 676 : (1973) 1 SCR
392.

60 Peoples' Union for Civil Liberties v. UOI, (1997) 1 SCC 301 : AIR 1997 SC 568.

61 Malone v. UK, (1984) 7 EHRR 14; see alsoKhan v. UK, (2001) 31 EHRR 1016.

62 Peck v. UK, (2003) 36 EHRR 719 or Art. 8 of ECHR.

63 See John Alder, Constitutional & Administrative Law, 6th Edn., pp.533, 534 and 535.

64 U.S. v. Ulysses, (1934) 72 Fed 2d 705.

65 See ante.

66 U.S. v. Thirty-seven Photographs, (1971) 402 US 363 (377).

67 Indian Express Newspaper v. Union of India, AIR 1986 SC 515 : (1985) 1 SCC 641.

68 Thomas v. Collins, (1945) 323 US 516 (530).

69 SeeThomas v. Collin, (1945) 323 US 516; seealsoSherbert v. Verner, (1963) 374 US 398.

70 (1988) 486 US 750.

71 See alsoForsyth County v. National Movement, (1992) 505 US 123.

72 Thomas v. Collins, (1945) 323 US 516 (530).

73 Cox v. New Hampshire, (1941) 312 US 569 (576).

74 Lovell v. Griffin, (1938) 303 US 444; Murdock v. Pennsylvania, (1943) 319 US 105.

75 Thomas v. Collins, (1945) 323 US 516 (530).

76 Poulos v. New Hampshire, (1953) 345 US 395 (403).

77 Kovacs v. Cooper, (1949) 336 US 77 (86).

78 Saia v. N.Y., (1948) 334 US 558. See alsoLovell v. Griffin, (1938) 303 US 444; Breand v. Alexandria, (1951) 341 US
622; Kovacs v. Cooper, (1949) 336 US 77.

79 Poulos v. New Hampshire, (1953) 345 US 395 (403).

80 (1965) 380 US 51.

81 (2002) 534 US 316.

82 See Craig R. Ducat, Constitutional Interpretation, 8th Edn.

83 See D.D. Basu, Law of the Press, 4th Edn., 2002, p. 50.

84 Sajjan Bank v. RBI, AIR 1961 Mad 8 - a case under Art. 19(1)(g).

85 Indulal v. State, AIR 1964 Guj 259 (265).

86 Indulal v. State, AIR 1964 Guj 259 (265).

 338

87 Shuttlesworth v. Birmingham, (1969) 394 US 147 (150-1).

88 Staub v. City of Baxley, (1958) 355 US 313 (321).

89 Lovell v. Griffin, (1938) 303 US 444; Kunz v. N .Y., (1951) 340 US 290 (294).

90 Niemotko v. Maryland, (1950) 340 US 268 (282).

91 Niemotko v. Maryland, (1950) 340 US 268 (282).

92 Kovacs v. Cooper, (1949) 336 US 77 (86).

93 K. Venu v. Director General of Police, AIR 1990 Ker 344. See alsoBijayananda Patra v. Dt. Magistrate, Cuttack, AIR
2000 Ori 70.

94 D. A. Prabhu v. District Collector, AIR 1975 Ker 117.

95 Kovacs v. Cooper, (1949) 336 US 77 (supra).

96 (1948) 334 US 558.

97 Shuttleworth v. City of Birmingham, (1969) 394 US 147 : 22 L Ed. 2nd 162.

98 ISKON v. Lee , US 1123 Sup. Ct. 2709 : (1992) 120 L. Ed. 2nd 669.

99 (1994) 512 US 43.

100 (1939) 307 US 496.

101 (1990) 493 US 807.

102 Rajkapoor v. Laxman, AIR 1980 SC 605 : (1980) 2 SCC 175.

103 Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1.

104 Romesh Chotalal Dalal v. Union of India, AIR 1988 SC 775 : (1988) 1 SCC 668 : (1988) 2 SCR 1011.

105 Sony Pictures Releasing of India Ltd. v. State of Tamil Nadu, (2006) 3 MLJ 289; See alsoMadhu Limaye v. Sub
Divisional Magistrate, AIR 1971 SC 2486 : (1970) 3 SCC 746; Gajanan Vishweswar Birjur v. Union of India, (1994) 5
SCC 550 ; S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 ; F. A. Picture International v. Central Board of Film
Certificate, AIR 2005 Bombay 145.

106 Prakash Jha Productions v. UOI, (2011) 8 SCC 372 : (2011) 9 SCALE 265; see alsoUOI v. K.M. Shankarappa,
(2001) 1 SCC 582 : AIR 2000 SC 3678.

107 (1989) 2 SCC 574 : [1989] 2 SCR 204 (supra).

1 Rajni v. State, AIR 1958 All 360.

2 Lovell v. Griffin, (1938) 303 US 444; Kunz v. N .Y., (1951) 340 US 290 (294).

3 Lovell v. Griffin, (1938) 303 US 444; Kunz v. N .Y., (1951) 340 US 290 (294).

4 Lovell v. Griffin, (1938) 303 US 444; Kunz v. N .Y., (1951) 340 US 290 (294).

5 Schneider v. Irvington, (1939) 308 US 147.

6 Organisation for a Better Austin v. Keefe, (1970) 402 US 415 (419-20).

7 Martin v. Struthers, (1943) 319 US 141; Marsh v. Alabama, (1946) 326 US 501; Tucker v. Texas, (1946) 326 US 517.

8 Rowan v. Post Office, (1969) 397 US 728 (737); Breard v. Alexandria, (1951) 341, US 622; Valentine v. Christensen,
(1942) 316 US 52; Roth v. U.S., (1957) 354 U.S. 476; U.S. v. Reidel, (1970) 402 US 351.

9 Breard v. Alexandria, (1951) 341, US 622; Valentine v. Christensen, (1942) 316 US 52; Roth v. U .S.,(1957) 354 US
476; U.S. v. Reidel, (1970) 402 US 351.

10 Breard v. Alexandria, (1951) 341, US 622; Valentine v. Christensen, (1942) 316 US 52; Roth v. U .S.,(1957) 354 US
476; U.S. v. Reidel, (1970) 402 US 351.
 339

11 Virginia Bd. of Pharmacy v. Consumer Council, (1976) 425 US 748.

12 Heffrow v. ISKON, (1981) 452 US 640.

13 ISKON v. Lee, (1992) 120 L.Ed 2nd 669.

14 ISKON v. Lee, (1992) 120 L.Ed. 2nd 541.

15 Adderley v. Florida, (1966) 385 US 39.

16 (1976) 424 US 828.

17 Romesh Thappar v. State of Madras, (1950) SCR 594 : AIR 1950 SC 124; Virendra v. State of Punjab, AIR 1958 SC
896 : 1958 SCR 308.

18 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (564-6) [see p. 46, ante] : (1960) 2 SCR 671.

19 Bennett Coleman v. Union of India, AIR 1973 SC 106; Casebook (I), pp. 254 et seq. : (1972) 2 SCC 788.

20 Sakal Papers v. Union of India, AIR 1962 SC 305 : (1962) 3 SCR 842.

21 Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515 : (1985) 1 SCC 641.

22 Cornelius v. NAACP, (1985) 473 US 788 (800-802).

23 Loyd Corpn. v. Tanner, (1972) 407 US 551 (567-68).

24 Adderley v. Florida, (1966) 385 US 39 (47); U.S. Postal Service v. Council, (1981) 450 US 114 (132).

25 Black, Judicial Dictionary, 7th Edn., 1999.

26 See Massey, American Constitutional Law - Powers and Liberties, 2nd Edn., pp. 959-960.

27 Cf. Schneider v. State, (1939) 308 US 147. See alsoUnited States v. Grace, 461 US 171 (1983); Boos v. Barry, 485
US 312 (1988).

28 Hague v. C .I.O.,(1939) 307 US 496 (515-16); Shuttlesworth v. Birmingham, (1969) 394 US 147 (152).

29 Hague v. C .I.O.,(1939) 307 US 496 (515-16); Shuttlesworth v. Birmingham, (1969) 394 US 147 (152).

30 Cf. Schneider v. State, (1939) 308 US 147; Hague v. C .I.O.,(1939) 307 US 496 (515-16); Shuttlesworth v.
Birmingham, (1969) 394 US 147 (152).

31 Greer v. Spoke, 428 US 828 (1976); Brown v. Glines , 444 US 348 (1980).

32 United States Postal Service v. Council of Greenburgh Civic Association, 453 US 114 (1981).

33 (1974) 418 US 208.

34 U.S. v. Grace, (1983) 461 US 171.

35 Adderley v. Florida, (1966) 385 US 39.

36 Green v. Spock, (1976) 244 US 824.

37 (1992) 505 US 672.

38 (1992) 505 US 830.

39 SeeUnited States v. American Library Association, (2003) 539 US 194.

40 Cornelius v. NAACP, (1985) 473 US 788 (800-02). See alsoAdderley v. Florida, (1966) 385 US 39 (supra); Perry
Education Assn. v. Perry Local Educators' Assn., (1983) 460 US 37.

41 Perry Assocn. v. Perry Local Assocn., (1983) 460 US (45-6).

42 Cornelius v. NAACP, (1985) 473 US 788 (800-802).

 340

43 See alsoUS v. Kokinada, (1990) 493 US 807.

44 Hague v. C .I.O.,(1939) 307 US 496 (515-16); Shuttlesworth v. Birmingham, (1969) 394 US 147 (152).

45 Massachusetts v. Davis, (1895) 152 Mass 510affirmed in(1897) 167 US 43.

46 (1939) 307 US 496 (supra).

47 See Davis v. Massachusetts, (1897) 167 US 43.

48 U.S. v. Grace, (1983) 461 US 171 (177).

49 Clark v. Community, (1983) 468 US 288.

50 Clark v. Community, (1983) 468 US 288.

51 Cornelius v. NAACP, (1985) 473 US 788 (800-802).

52 U.S. v. Kokinda, (1990) 497 US 720.

53 U.S. Postal Service v. Council, (1981) 453 US 114 (129).

54 Widmar v. Vincent, (1981) 454 US 263.

55 Madison School Dt. v. Wisconsim Commr.,(1976) 429 US 167; S. Eastern Promotions v. Conrad, (1975) 420 US 546
(555); Lehman v. City, (1974) 418 US 298.

56 Greer v. Spock, (1976) 424 US 828.

57 Adderley v. Florida, (1966) 385 US 39 (47).

58 Members of City Council of Los Angeles v. Tax Payers for Vincent, (1984) 466 US 789.

59 (1981) 453 US 114.

60 Cornelius v. NAACP, (1985) 473 US 788 (800-02).

61 U.S. Albertini, (1985) 472 US 675 (686).

62 Jews v. Bd . of Airport, (1986) 783 F 2d 791 (793).

63 (1946) 32 US 501.

64 (1968) 391 US 308.

65 (1976) 424 US 507.

66 Comite v. R., (1987) 36 DLR (4th) 501 (507).

67 Heffron v. International Society, (1981) 452 US 640.

68 Lehman v. Shaker Heights, (1974) 418 US 298. [In England, too, it has been held that picketing would not be
allowed in an airport; B.A.A. v. Ashton, (1983) 3 All ER 6].

69 Greer v. Spock, (1976) 424 US 824 (supra).

70 Railway Board v. Niranjan Singh, AIR 1969 SC 966 : (1969) 1 SCC 502.

71 Valentine v. Chrestensen, (1942) 316 US 52.

72 Lovell v. Griffin, (1938) 303 US 444.

73 Schneider v. Slate, (1939) 308 US 147.

74 Kunz v. N.Y., (1951) 340 US 290; Niemotko v. Maryland, (1951) 340 US 268.

75 Schneider v. Slate, (1939) 308 US 147.

76 Schneider v. Slate, (1939) 308 US 147.

 341

77 Jamison v. Texas, (1943) 318 US 413.

78 Jamison v. Texas, (1943) 318 US 413.

79 Marsh v. Alabama, (1946) 326 US 501.

80 Martin v. City of Struthers, (1943) 319 US 141. See alsoSchneider v. State, (1939) 308 US 147.

81 Hague v. C .I.O.,(1939) 307 US 496.

82 Hague v. C .I.O.,(1939) 307 US 496.

83 Kovacs v. Cooper, (1949) 336 US 77.

84 Kunz v. N.Y., (1951) 340 US 290; Niemotko v. Maryland, (1951) 340 US 268.

85 Saia v. N.Y., (1948) 334 US 558.

86 Kovacs v. Cooper, (1949) 336 US 77.

87 Noise Pollusion (II), In re., AIR 2005 SC 3136 : (2005) 5 SCC 733.

88 Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association, AIR 2000 SC 2773 : (2000) 7
SCC 282.

89 Om Birangana Religious Society v. State, (1996) 100 CWN 617.

90 (1989) 491 US 781.

91 (1994) 512 US 753.

92 See alsoSchnck v. Pro-Choice Network of Western New York, (1997) 519 US 357 where direction to maintain a
buffer-zone between hospital & demonstrators was upheld; see alsoHill v. Colorado, (2000) 120 S Ct. 2480.

93 Grayned v. Rockford, (1972) 408 US 104; See alsoWard v. Rock Against Racism, (1989) 491 US 781.

94 Frishby v. Shultz, (1988) 487 US 474.

95 Hague v. C . I. O.,(1939) 307 US 496.

96 Schneider v. State, (1939) 308 US 147.

97 Kunz v. N.Y., (1951) 340 US 290; Niemotko v. Maryland, (1951) 340 US 268.

1 Cox v. New Hampshire, (1941) 312 US 569.

2 FRANKFURTER J. in Kunz v. N.Y., (1951) 340 US 290.

3 Cox v. New Hampshire, (1941) 312 US 569.

4 Murdock v. Pennsylvania, (1943) 319 US 105.

5 Shuttlesworth v. Birmingham, (1969) 394 US 147.

6 Lewis Publishing Co. v. Morgan, (1913) 229 US 228; Snyder v. Milwaukee, (1939) 308 US 147.

7 Thomas v. Collins, (1944) 323 US 516.

8 Contwell v. Connecticut, (1940) 310 US 296 (305).

9 Cf. Indulal v. State, AIR 1964 Guj 259 (265).

10 Cf. Indulal v. State, AIR 1964 Guj 259 (265).

11 Lovell v. Griffin, (1938) 303 US 444; Kunz v. N.Y., (1951) 340, US 290 (294).

12 Hague v. C .I.O., (1939) 307 US 496.

 342

13 Clark v. Community, (1984) 468 US 288.

14 Whitney v. California, (1927) 274 US 357 (377); Jamison v. Texas, (1942) 318 US 413.

15 Schneider v. State, (1939) 308 US 147.

16 Freedman v. Maryland, (1965) 380 US 51 (58); Southeastern Promotions v. Conrad, (1975) 420 US 546 (559).

17 Interstate Circuit v. Dallas, (1968) 390 US 676 (688). See alsoAjay Goswami v. UOI, AIR 2007 SC 493 : (2007) 1
SCC 143.

18 Bantam Books v. Sullivan, (1963) 372 US 58.

19 Kovacs v. Cooper, (1949) 336 US 77.

20 Lehman v. City of Shaker Heights, (1974) 418 US 298 (304-8); Public Utililies Commn. v. Pollak, (1952) 343 US 451
(467-8).

21 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684. See alsoRamlila Maidan
Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

22 Ramlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

23 Beard v. Alexandria, (1951) 341 US 622.

24 Beard v. Alexandria, (1951) 341 US 622.

25 Bunger v. Green River, (1937) 300 US 638; Tucker v. Texas, (1946) 326 US 517.

26 Martin v. Struthers, (1943) 319 US 141.

27 Largent v. State of Texas, (1943) 318 US 418.

28 Murdock v. Pennsylvania, (1943) 319 US 105; Follett v. McCormick, (1944) 321 US 573.

29 Marsh v. Alabama, (1946) 326 US 501.

30 Rowan v. Post Office Dept., (1970) 397 US 728 (737).

31 Ry. Board v. Niranjan, AIR 1969 SC 966 (para. 13) : (1969) 1 SCC 502.

32 Ry. Board v. Niranjan, AIR 1969 SC 966 (para. 13) : (1969) 1 SCC 502.

33 Ry. Board v. Niranjan, AIR 1969 SC 966 (para. 13) : (1969) 1 SCC 502.

34 Red Lion Broadcasting Co. v. F.C.C., (1969) 395 US 367.

35 Kovacs v. Cooper, (1949) 336 US 77.

36 Saia v. N.Y., (1948) 334 US 558.

37 Kovacs v. Cooper, (1949) 336 US 77.

38 Associated Press v. U.S., (1945) 326 US (20).

39 Kovacs v. Cooper, (1949) 336 US 77.

40 Kovacs v. Cooper, (1949) 336 US 77.

41 Associated Press v. U.S., (1945) 326 US (20).

42 V. Rock Against Racism, 491 US 781 (1989).

43 See alsoClark v. Community for Creative Non-violence, 468 US 288 (1984); Thomas v. Chicago Park District, 532
US 1051 (2002).

44 (2002) 532 US 1051.

45 SeeRosenberger v. Rector and Visitor of the University of Virginia, (1995) 515 US 819.
 343

46 Public Utilities Commn. v. Pollak, (1952) 343 US 451.

47 National Broadcasting Co. v. U.S., (1943) 319 US 190 (227).

48 Red Lion Broadcasting Co. v. F.C.C., (1969) 395 US 367.

49 See Massey, American Constitutional Law - Powers & Liberties, 2nd Edn., p. 885.

50 Red Lion Broadcasting Co. v. F.C.C., (1969) 395 US 367.

51 Red Lion Broadcasting Co. v. F.C.C., (1969) 395 US 367.

52 Fowler v. Rhode Island, (1953) 345 US 67.

53 Fowler v. Rhode Island, (1953) 345 US 67.

54 National Broadcasting Co. v. U.S., (1943) 319 US 190 (227).

55 FCC v. National Citizens' Committee forBroadcasting, (1978) 436 US 775.

56 Trinity Church v. Fed. Radio Commn., (1933) 288 US 599.

57 Carroll v. Dumont Laboratories, (1951) 340 US 929.

58 Red Lion Broadcasting Co. v. F.C.C., (1969) 395 US 367.

59 Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236 : (1995) 2
SCC 161. See alsoCentre for Public Interest Litigation v. UOI, (2012) 3 SCC 1 : AIR 2012 SC 3725; Centre for Public
Interest Litigation v. UOI, (2013) 10 SCC 270 : (2013) 2 SCALE 357.

60 Indira v. Union of India, AIR 1989 Bom 25.

61 Rajani v. State, AIR 1958 All 360 (361).

62 State of Rajasthan v. Chawla, AIR 1959 SC 544 (546).

63 Indulal v. State, AIR 1963 Guj 259 (269).

64 Noise Pollution, In re., AIR 2005 SC 3136 : (2005) 5 SCC 733.

65 Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association, AIR 2000 SC 2773 : (2000) 7
SCC 283.

66 Om Birangana Religious Society v. State, (1995-96) 100 CWN 617.

67 See alsoAcharya Maharajshri Narendra Prasadji Ananda Prasadji Maharaj v. State of Gujarat, (1975) 1 SCC 11;
Appa Rao v. Government of Tamil Nadu, (1995) 1 LW 319 (Madras HC).

68 P.A. Jacob v. Supt. of Police, AIR 1993 Ker 1.

69 K. Venu v. Director General of Police, AIR 1990 Ker 344.

70 D. Anantha Prabhu v. District Collector, AIR 1975 Ker 117.

71 See alsoSatyayug Party v. Government of A.P., AIR 1996 AP 218.

72 Guruvayoor Devaswam v. Supt. of Police, AIR 1998 Ker 122.

73 Maulana Mufti Syed Barkati v. State of W.B., AIR 1999 Cal 15.

74 Free Legal Aid v. National Capital Territory, AIR 2001 Del 435.

75 Raymond v. Cook, (1958) 3 All ER 407.

76 Southeastem Promotions v. Conrad, (1975) 420 US 346; High Courts have rightly struck down ss. 3 and 7 of the Act
on this ground [Chaman v. Union of India, AIR 1961 Punj 272 (para. 6); State v. Babulal, AIR 1956 All 571].

77 Southeastem Promotions v. Conrad, (1975) 420 US 346.

 344

78 Southeastem Promotions v. Conrad, (1975) 420 US 346.

79 Southeastem Promotions v. Conrad, (1975) 420 US 346.

80 Southeastem Promotions v. Conrad, (1975) 420 US 346.

81 Southeastem Promotions v. Conrad, (1975) 420 US 346.

82 Burstyn v. Wilson, (1952) 343 US 495 (503).

83 (1998) 524 US 569.

84 The Times, 19 March 1982. See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law, 13th Edn., p. 523.

85 Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCJ 128 : (1989) 2 JT 70; Celastine v. A.D.M., AIR 1957
Ker 75 (para. 3), are in the right direction.

86 High Courts have rightly struck down ss. 3 and 7 of the Act on this ground [Chaman v. Union of India, AIR 1961 Punj
272 (para. 6); State v. Babulal, AIR 1956 All 571].

87 Fr. Abraham v. State of Kerala, 2004 (2) KLT 431.

88 Mutual Film Corpn. v. Industrial Commn., (1915) 236 US 230.

89 Joseph v. Wilson, (1952) 343 US 495 (501-2).

90 Joseph v. Wilson, (1952) 343 US 495 (501-2); Kingsley Pictures Corpn. v. Regents, (1958) 360 US 684 (690).

91 U.S. v. Paramount Pictures, (1947) 334 US 131 (166).

92 Kingsley Pictures Corpn. v. Regents, (1958) 360 US 684 (690).

93 Joseph v. Wilson, (1952) 343 US 495 (501-2).

94 Times Film Corpn. v. Chicago, (1961) 365 US 43; Freedman v. State of Maryland, (1965) 380 US 51.

95 (1965) 380 US 51 (supra).

96 Times Film Corpn. v. Chicago, (1961) 365 US 43; Freedman v. State of Maryland, (1965) 380 US 51; Such a system
regarding books, has been condemned [Bantm Books v. Sullivan, (1963) 372 US 58].

97 Paris Adult Theatre v. Slatons, (1973) 413 US 49.

98 Superior Films v. Dept. of Education, (1954) 346 US 587.

99 Interstate Circuit v. Dallas, (1967) 387 US 903.

100 Times Film Corpn. v. Chicago, (1961) 365 US 43; Freedman v. State of Maryland, (1965) 380 US 51.

101 Joseph v. Wilson, (1952) 343 US 495 (501-2).

102 Joseph v. Wilson, (1952) 343 US 495 (501-2).

103 U.S. v. Paramount Pictures, (1947) 334 US 131 (166).

104 Commercial Pictures Corpn. v. Board of Regent, (1954) 346 US 587.

105 Kingsley Pictures Corpn. v. Regents, (1958) 360 US 684 (690).

106 Freedman v. Maryland, (1965) 380 US 51; Teitel Film Corpn. v. Cuscak, (1968) 390 US 141.

107 Speiser v. Randall, (1958) 357 US 513 (525).

108 Freedman v. Maryland, (1965) 380 US 51; Teitel Film Corpn. v. Cuscak, (1968) 390 US 141.

109 Freedman v. Maryland, (1965) 380 US 51; Teitel Film Corpn. v. Cuscak, (1968) 390 US 141; Vance v. Universal
Amusement Co., (1980) 445 US 308.
 345

110 Eroznick v. Jacksonville, (1975) 422 US 219.

111 (1976) 1 WLR 550.

112 See Edwin Shorts & Claire de Than, Civil Liberties - Legal Principles of Individual Freedom, 1998 Edn., at pp. 301-
302, 303, 304 & 306. Also see Helen Fenwick, Civil Liberties, 1994 Edn., at p. 179.

113 Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCJ 128 : (1989) 2 JT 70.

1 Abbas v. Union of India, AIR 1973 SC 123.

2 Cf. State v. Baboolal, AIR 1956 All 571 (574) : (1989) 2 SCJ 128 : (1989) 2 JT 70; Bharat Bhushan v. City Magistrate,
AIR 1957 All 99.

3 Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCJ 128 : (1989) 2 JT 70.

4 Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCJ 128 : (1989) 2 JT 70; Raj Kapoor v. Layman, AIR
1980 SC 605 (para. 7).

5 Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCJ 128 : (1989) 2 JT 70; Ramesh v. Union of India,
(1988) 1 SCC 668 : AIR 1988 SC 775.

6 Abbas v. Union of India, (1970) 2 SCC 780 (para. 49) CB : AIR 1971 SC 481.

7 Raj Kapoor v. Layman, AIR 1980 SC 605 (para. 7) : (1980) 2 SCC 175.

8 Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCR 204 : (1989) 2 JT 70.

9 Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1. See alsoCentral Board of Film Certification v.
Yadavalaya Film, (2007) 2 MLJ 604(Mad) .

10 AIR 1965 SC 881 : (1965) 1 SCR 65.

11 (1985) 4 SCC 289 : AIR 1986 SC 967.

12 Ajay Goswami v. UOI, AIR 2007 SC 493 : (2007) 1 SCC 143.

13 Raj Kapoor v. State, (1980) 1 SCC 43 : AIR 1980 SC 258 : (1980) 1 SCR 1081.

14 Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289 : AIR 1986 SC 967 : 1985 (Supp-3) SCR 17.

15 Ajay Goswami v. UOI, AIR 2007 SC 493 : (2007) 1 SCC 143.

16 F.A. Pictures International v. Central Board of Film Certification, AIR 2005 Bom 145.

17 Prakah Jha Production v. UOI, (2011) 8 SCC 372 : (2011) 9 SCALE 265.

18 Romesh v. Union of India, AIR 1988 SC 775 : (1988) 1 SCC 668.

19 Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112 : (2002) 5 SCC 294.

20 Rangarajan v. Jagajivan Ram, (1989) 2 SCC 574 (supra).

21 Sony Pictures Releasing in India Ltd. v. State of Tamil Nadu, (2006) 3 MLJ 289(Mad) .

22 Rangarajan v. Jagajivan Ram, (1989) 2 SCC 574 : [1989] 2 SCR 204 (supra).

23 See alsoPrakash Jha Productions v. UOI, (2011) 8 SCC 372 : (2011) 9 SCALE 265; UOI v. K.M. Shankarappa,
(2001) 1 SCC 582 : AIR 2000 SC 3678.

24 Article in 'The Statesman' dated 18-20 December 1998 and republished in the Book Constitutional Question &
Citizen's Rights, Article No. 47, p. 347.

25 Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCR 204 : (1989) 2 JT 70.

26 Kingsley Corpn. v. Regents, (1959) 360 US 684.

27 Ranjit v. State of Maharashtra, AIR 1965 SC 881 : (1965) 1 SCR 65. SeeAjay Goswami v. UOI, AIR 2007 SC 493 :
(2007) 1 SCC 143; Prakash Jha Productions v. UOI, (2011) 8 SCC 372 : (2011) 9 SCALE 265.
 346

28 Roth v. U.S., (1957) 354 US 476.

29 R. v. Hicklin, (1868) 3 QB 360.

30 Ranjit v. State of Maharashtra, AIR 1965 SC 881 : (1965) 1 SCR 65. SeeAjay Goswami v. UOI, AIR 2007 SC 493 :
(2007) 1 SCC 143; Prakash Jha Productions v. UOI, (2011) 8 SCC 372 : (2011) 9 SCALE 265.

31 R. v. Hicklin, (1868) 3 QB 360.

32 Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574 : (1989) 2 SCR 204 : (1989) 2 JT 70.

33 Cf. Abbas v. Union of India, AIR 1971 SC 481(para. 41) : (1970) 2 SCC 780.

34 Cf. Abbas v. Union of India, AIR 1971 SC 481(para. 41) : (1970) 2 SCC 780.

35 Schenck v. U.S., (1919) 249 US 47.

36 Schenck v. U.S., (1919) 249 US 47.

37 See ante; cf. Santokh v. Delhi Admn., AIR 1973 SC 1091 (para. 9) : (1973) 1 SCC 659.

38 Kingsley Corpn. v. University of N.Y., (1959) 360 US 684.

39 Freedman v. Maryland, (1965) 380 US 51; Vance v. Universal Amusement Co., (1980) US 308, (316, n. 14).

40 Kingsley Corpn. v. University of N.Y., (1959) 360 US 684.

41 See Edwin Shorts & Claire de Than, Civil Liberties, 1998 Edn. at pp.306-307.

42 Odyssey Communications Pvt. Ltd. v. Lok-udayan Sangathna, AIR 1988 SC 1642 (reversing Bombay High Court
judgment of 13-4-1988) : 1987 Supp SCC 77.

43 Joseph Varghese v. Union of India, 1996 AIHC 1155(Ker) .

44 Odyssey Communications Pvt. Ltd. v. Lok-udayan Sangathna, AIR 1988 SC 1642 (reversing Bombay High Court
judgment of 13-4-1988) : 1987 Supp SCC 77; The views taken by a Division Bench of the Delhi High Court [Lakhanpal
v. Union of India, AIR 1962 Del 167] that the prohibition of private broadcasting, except under a licence granted by the
Government of India is a reasonable restriction under Art. 19(2), appears to be sound.

45 Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of West Bengal, AIR
1995 SC 1236 : (1995) 2 SCC 161.

46 AIR 1993 SC 1171 : (1992) 3 SCC 637.

47 AIR 1988 SC 775 : (1988) 1 SCC 668.

48 Suresh v. State of Tamil Nadu, AIR 1997 SC 1889 : (1997) 1 SCC 319. See alsoHukum Singh v. State of U.P., AIR
1998 All 120.

49 Cf. N.Y. v. P.J. Video. (1986) 495 US 868.

50 Valentine v. Chrestensen, (1941) 316 US 52; Indian Express v. Union of India, AIR 1986 SC 518 (paras. 90-1).

51 Black's Law Dictionary, 8th Edn.

52 Law and Commercial Dictionary.

53 New Encyclopaedia Britannica, Vol. I.

54 Collins Dictionary of English Language.

55 Chambers Dictionary.

56 ICICI Bank v. Municipal Corpn. of Greater Bombay, AIR 2005 SC 3315 : (2005) 6 SCC 404.

57 Lovell v. Griffin, (1937) 303 US 444.

58 Maritin v. Struthers, (1943) 319 US 141.

 347

59 Valentine v. Chrestensen, (1941) 316 US 52.

60 (1941) 316 US 52 (supra).

61 Valentine v. Chrestensen, (1941) 316 US 52 (supra).

62 (1964) 376 US 254.

63 See Massey, American Constitutional Law, 2nd Edn. at pp. 910-911.

64 Valentine v. Chrestensen, (1941) 316 US 52 (supra).

65 Valentine v. Chrestensen, (1941) 316 US 52 (supra).

66 Caroll v. Dumont Laboratories, (1951) 340 US 929.

67 Murdock v. Pennsylvania, (1943) 319 US 105.

68 Valentine v. Chrestensen, (1941) 316 US 52 (supra).

69 Ry. Express Inc. v. N.Y., (1949) 336 US 106.

70 Valentine v. Chrestensen, (1941) 316 US 52 (supra).

71 Bigelow v. Virginia, (1974) 421 US 809 (818-21); Ginzburg v. U.S., (1966) 388 US 463 (474); Pittsburg Press v.
Human Rel. Commn., (1973) 413 US 376.

72 Virginia Pharmacy v. Virginia Citizens, (1976) 425 US 748 (762-63, 765); Central Hudson Corp. v. P.S.C., (1980)
447 US : 557 (561, 564-566).

73 Bolger v. Youngs Coron., (1983) 463 US 60 (66, 68ff.); Carry v. Population Services, (1977) 431 US 478.

74 Virginia Pharmacy v. Virginia Citizens, (1976) 425 US 748 (762-63, 765).

75 433 US 350 (1977) (supra).

76 (1978) 436 US 447.

77 (1978) 436 US 412.

78 See Craig R. Ducat, Constitutional Interpretation, 8th Edn. at p. 922.

79 Bates v. State Bar of Arizona, 433 US 350 (1977).

80 Ibanez v. Florida Department of Business and Professional Regulation, 512 US 136 (1994); Edenfild v. Jane, 507
US 761 (1993); Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 US 91 (1990); Shapero v.
Kentucky Bar Association, 486 US 466 (1988). See alsoPeel v. Attorney Registration and Disciplinary Commission of
Illinois, (1990) 496 US 91; Shapero v. Kentucky Bar Assn., (1988) 486 US 455; Zanderar v. Office of Disciplinary
Council, (1985) 471 US 626; In re. RMJ, (1982) 455 US 191.

81 Cincinnatti v. Discovery Net Work Inc., 507 US 410 (1993).

82 Pittsburg Press v. Human Rel. Commn., (1973) 413 US 376.

83 Cf. Ohralik v. Ohio Bar, (1978) 436 US 447. But see In Re, Primus, 436 US 412 (1978).

84 Bigelow v. Virginia, (1974) 421 US 809 (818-21).

85 Breard v. Alexandria, (1951) 341 US 622 (641).

86 Lehman v City of Shaker Heights, (1932) 285 US 105 (110); Consolidated Edison Co. v. P.S.C., (1980) 447 US 530
(542); N.Y. Times v. Sullivan, (1964) 376 US 254 (266).

87 Pittsburg Press v. H.R.C., (1973) 413 US 376 (388); Hoffman v. Flipside, (1982) 455 US 489.

88 Central Hudson Corp. v. P.S.C., (1980) 447 US 557 (561, 564-66); Cf. Ohralik v. Ohio Bar, (1978) 436 US 447.
 348

89 Lehman v City of Shaker Heights, (1932) 285 US 105 (110); Consolidated Edison Co. v. P.S.C., (1980) 447 US 530
(542); N.Y. Times v. Sullivan, (1964) 376 US 254 (266).

90 Bigelow v. Virginia, (1974) 421 US 809 (818-21).

91 Ry. Express Inc. v. N.Y., (1949) 336 US 106.

92 Pittsburg Press v. Human Rel. Commn., (1973) 413 US 376.

93 N. Dakota Pharmacy v. Snyder 's Stores, (1973) 414 US 156; Head v. New Mexico Bd., (1963) 374 US 424.

94 Columbia Broadcasting v. Democratic Nat. Committee, (1973) 412 US 94.

95 Bigelow v. Virginia, (1974) 421 US 809 (818-21).

96 Packet Corp. v. Utah, (1932) 285 US 105 (11); Lehman v. City of Shaker Heights, (1974) 418 US 298 (302).

97 Metromedia v. San Diego, (1981) 435 US 490.

98 Metromedia v. San Diego, (1981) 435 US 490.

99 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (563) : (1960) 2 SCR 671.

100 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (563) : (1960) 2 SCR 671.

101 Indian Express Newspapers v. Union of India, AIR 1986 SC 515 (paras. 90-1) : (1985) 1 SCC 641.

102 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (563) : (1960) 2 SCR 671.

103 Indian Express Newspapers v. Union of India, AIR 1986 SC 515 (paras. 90-1) : (1985) 1 SCC 641.

104 Nadir Ali v. State of UP, AIR 1960 All 103; Hari Das v. Emperor, (1939) 2 Cal 81.

105 Sable Waghire & Co. v. UOI, AIR 1975 SC 1172 : (1975) 1 SCC 763.

106 RMDC v. UOI, AIR 1957 SC 628 : [1957] 1 SCR 930.

107 See D.D. Basu, Law of the Press, 4th Edn. at p. 159.

108 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438 : (1995) 5 SCC 139.

1 Eskayef v. CIT, AIR 2000 SC 2567 : (2000) 6 SCC 455.

2 Gulab Nabi v. State of J&K, AIR 1990 J&K 13.

3 See also Dainik Sambad v. State of Tripura, AIR 1989 Gau 30; Sushil Chaudhary v. State, AIR 1998 Gau 28.

4 Indian Express Newspapers v. Union of India, AIR 1986 SC 515 (supra).

5 Zaffar Mohammad v. State of West Bengal, AIR 1976 SC 171 : (1976) 1 SCC 428.

6 Now the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

7 Motion Pictures Association v. Union of India, AIR 1999 SC 2334 : (1999) 6 SCC 150.

8 Peek v. Tribune Co., (1909) 214 US 185.

9 Tolly v. Fry, (1931) AC 333; Garbell v. Hazell, (1943) 2 All ER 359.

10 (1931) 283 US 359.

11 (1943) 319 US 624.

12 See alsoHareley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, (1995) 515 US 557; Tinker v. Des
Moines Independent Community School Dt., (1969) 393 US 503.

13 21 UCLAL Review, 1973 at p. 29.

14 See Stone, Seidman, Sunstein, Tushnet and Karlan, Constitutional Law, 5th Edn. at pp.1367-1368.
 349

15 HENKIN, Forward "On Drawing Lines", 82 Havv LR 63 (79-80)(1968) as extracted in Stone, Seidman, Senstein,
Tushnet and Karlan, Constitutional Law, 5th Edn., Chapter VII, "Freedom of Expression", p. 1367.

16 (1986) 478 US 697.

17 (1985) 477 US 675.

18 U.S. v. O 'Brien, (1968) 391 US 367 (377).

19 (1968) 391 US 367 (377) (supra).

20 (1984) 468 US 288.

21 Stromberg v. California, (1931) 283 US 359.

22 U.S. v. O'Brien, (1968) 391 US 367 (377).

23 Street v. N.Y., (1969) 394 US 576. See also Texas v. Johnson, 491 US 397 : 105 L Ed. 2nd 342 (1989).

24 491 US 397 : 105 L Ed. 2nd 342. (1989) (supra).

25 491 US 397 : 105 L Ed. 2nd 342. (1989) (supra).

26 491 US 397 : 105 L Ed. 2nd 342. (1989) (supra).

27 491 US 397 : 105 L Ed. 2nd 342. (1989) (supra).

28 SeeUnited States v. Eichman, (1990) 496 US 310.

29 Schacht v. U.S., (1970) 398 US 58.

30 Ry. Express Inc. v. N.Y., (1949) 336 US 106.

31 U.S. v. O'Brien, (1968) 391 US 367 (377).

32 Tinker v. Des Moines Independent, 393 US 503. See alsoBrown v. Louisiana, 383 US 131 (1966); Stromberg v.
California, 283 US 359 (1931); Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 US 557
(1995); City of Eric v. Pap's A.M., 529 US 277 (2000).

33 Food Employees v. Logan Valley Plaza, 391 US 308.

34 Barnes v. Glen Theatre, 501 US 560; City of Eric v. Pops, (2000) 529 Slt. 277. See also Schad v. Borough of Mt.
Emphrain, (1981) 452 US 61.

35 Thornhill v. Alabama, (1940) 310 US 88.

36 Carlson v. California, (1937) 310 US 106.

37 Giboney v. Empire Storage, (1948) 336 US 490.

38 Hudgent v. NLRB, (1976) 424 US 507.

39 Trisby v. Shultz, (1988) 487 US 474.

40 Stromberg v. California, (1931) 283 US 359.

41 (1968) 391 US 308.

42 (1976) 424 US 507.

43 (1972) 407 US 551.

44 The Dictionary meaning of act ion is 'the doing of something; state of being in motion or of working' [Webster, New
World Dictionary].

45 Sable v. Union of India, AIR 1975 SC 1172 : (1975) 1 SCC 763.

46 Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 : (1986) 3 SCC 615.
 350

47 Naveen Jindal v. Union of India, AIR 2004 SC 1559 : (2004) 2 SCC 510.

48 N.L.R.B. v. Drivers, (1960) 362 US 274; Senn v. Tile Layers Union, (1937) 301 US 468 (478).

49 Thornhill v. Alabama, (1940) 310 US 88; Carlson v. California, (1940) 310 US 106.

50 Thornhill v. Alabama, (1940) 310 US 88; Carlson v. California, (1940) 310 US 106.

51 See Hugo L. Black, A Constitutional Faith,(1968), at pp.45-46 - as extracted in Craig R. Ducat, Constitutional
Interpretation, 8th Edn. at p.777.

52 NAACP v. Claiborne Hardware Co., 458 US 886 (1982).

53 International Longshoremen's Association v. Allied International, 456 US 212 (1982).

54 Teamsters Union v. Hanke, (1950) 339 US 470.

55 Amalgamated Food Employees v. Logan Valley, (1968) 391 US 308. See alsoMadsen v. Women's Health Centre
Inc., 512 US 753 (1994).

56 Hughes v. Superior Court, (1950) 339 US 460; Bakery Drivers v. Wohl, (1942) 315 US 769 (776).

57 Hughes v. Superior Court, (1950) 339 US 460; Bakery Drivers v. Wohl, (1942) 315 US 769 (776).

58 Thornhill v. Alabama, (1940) 310 US 88; Carlson v. California, (1940) 310 US 106.

59 Cox v. Louisiana, (1956) 379 US 559 [statute forbidding picketing near a courthouse].

60 Teamsters Union v. Hanke, (1950) 339 US 470; Cafeteria Employees v. Angelos, (1943) 320 US 293.

61 Giboney v. Empire Storage Co., (1949) 336 US 490 (495).

62 Building Service Employees v. Gazzam, (1950) 339 US 532.

63 Milk Wagon Drivers v. Meadowmoor Dairies, (1941) 312 US 287.

64 American Steel Foundries v. Central Trades Council, (1924) 263 US 457.

65 Building Service Employees v. Gazzam, (1950) 339 US 532.

66 Giboney v. Empire Storage Co., (1949) 336 US 490 (495).

67 International Union v. Wisconsin Board, (1949) 336 US 245 (251).

68 Cox v. Louisiana, (1956) 379 US 559 [statute forbidding picketing near a courthouse].

69 Local Union v. Graham, (1953) 345 US 192.

70 Hughes v. Superior Court, (1950) 339 US 460; Bakery Drivers v. Wohl, (1942) 315 US 769 (776).

71 Giboney v. Empire Storage Co., (1949) 336 US 490 (495).

72 Cox v. Louisiana, (1956) 379 US 559 [statute forbidding picketing near a courthouse].

73 Building Service Employees v. Gazzam, (1950) 339 US 532; International Brotherhood v. Vogt. (1957) 354 US 284;
A.F.L. v. Swing, (1944) 312 US 321.

74 Carpenters Union v. Ritter's Cafe, (1942) 315 US 722.

75 Teamsters Union v. Hanke, (1950) 339 US 470.

76 Carpenters Union v. Ritter's Cafe, (1942) 315 US 722.

77 Adderley v. Florida, (1966) 385 US 39.

78 Amalgamated Food Employees v. Logan Valley, (1968) 391 US 308.

79 Police Dept. v. Mosley, (1972) 408 US 92.

 351

80 Cf. Vacher & Sons. v. London Society of Compositors, (1913) AC 107; Broome v. D.P.P., (1974) 1 All ER 314(HL) .

81 Hubbarrd v. Pitt, (1975) 3 All ER 1(CA) ; Lyons v. Wikins, (1899) 1 Ch 11.

82 Bird v. O'Neal, (1960) AC 907; Rookes v. Barnard, (1964) AC 1129.

83 Quinn v. Leather, (1901) AC 495.

84 Hubbarrd v. Pitt, (1975) 3 All ER 1(CA) ; Lyons v. Wikins, (1899) 1 Ch 11.

85 Broome v. DPP, (1974) AC 587; Kavanagh v. Hiscock, (1974) QB 600; Hirst v. Chief Constable of West Yorkshire,
(1987) 85 Crl. App. R 143.

86 (1986) Ch. 20.

87 SeeDuport Steels Ltd. v. Sirs, (1980) 1 All ER 529.

88 (1974) AC 587 (supra).

89 See Hood Phillips & Jackson, Constitutional and Administrative Law, 8th Edn., Chapter XXVII, para 34 at pp.639-
640.

90 Hubbarrd v. Pitt, (1975) 3 All ER 1(CA) ; Lyons v. Wikins, (1899) 1 Ch 11.

91 Br. Aikrports Authority v. Ashton, (1983) 3 All ER.

92 Retail Union v. Dolphin, (1986) 33 DLR (4th) 174 (187).

93 Retail Union v. Dolphin, (1986) 33 DLR (4th) 174 (187).

94 Bakery Drivers v. Wohl, (1942) 315 US 769 (776).

95 Damodar v. State, AIR 1951 Bom 459; Vival v. State of U.P., AIR 1956 All 56; 'Public order' was not a ground of
restriction when In re Vengan, AIR 1952 Mad 95 was decided.

96 Damodar v. State, AIR 1951 Bom 459; Vival v. State of U.P., AIR 1956 All 56.

97 'Public order' was not a ground of restriction when In re Vengan, AIR 1952 Mad 95 was decided.

98 Damodar v. State, AIR 1951 Bom 459; Vival v. State of U.P., AIR 1956 All 56.

99 Cf. Kameswar v. State of Bihar, AIR 1962 SC 1166 : 1962 Supp (3) SCR 369..

100 Cf. Supdt. v. Ram Manohar, AIR 1960 SC 633 : (1960) 2 SCR 821.

101 Cf. Supdt. v. Ram Manohar, AIR 1960 SC 633 : (1960) 2 SCR 821; O.K. Ghosh v. Joseph, AIR 1963 SC 812 (815).

102 All India Bank Employees Association v. National Industrial Tribunal, AIR 1962 SC 171 (181) : (1962) 3 SCR 269;
Radhey Shyam v. P.M.G., AIR 1965 SC 311 (313) : (1964) 7 SCR 403.

103 Kameshwar Singh v. State of Bihar, AIR 1962 SC 1166.

104 Radhey Shyam Sharma v. Post Master General, AIR 1965 SC 311.

105 Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201 : AIR 1998 SC 184.

1 Bharat Kumar K. Palicha v. State of Kerala, AIR 1997 Ker 291(FB) .

2 (1951) 2 MLJ 241.

3 See also Damodhar v. State of Bombay, AIR 1951 Bom 459.

4 AIR 1997 Ker 291(FB) (supra).

5 AIR 1998 SC 184 : (1998) 1 SCC 201.

6 AIR 1999 Pat 169.

 352

7 B.R. Singh v. Union of India, AIR 1990 SC 1 : (1989) 4 SCC 710.

8 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC 712.

9 T.K. Rangarajan v. Government of T. N., AIR 2003 SC 3032 : (2003) 6 SCC 581.

10 James Martin v. State of Kerala, (2004) 2 SCC 203.

11 Harish Uppal (Ex.Capt.) v. Union of India, AIR 2003 SC 739 : (2003) 2 SCC 45.

12 SeeB.L. Wadehra v. State (Delhi), AIR 2000 Delhi 266 (supra); see also Hussainara Khatoon v. Home Secretary,
State of Bihar, AIR 1979 SC 1360 : (1980) 1 SCC 81.

13 Raman Services Pvt. Ltd. v. Subhash Kapoor, (2001) 1 SCC 118.

14 See alsoMahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37.

15 B.L. Wadehra (Dr.) v. State (NCT) of Delhi, AIR 2000 Delhi 266.

16 "The Right to Strike", Frontline Magazine, dt. 10-10-2003 and republished in the book Constitutional Question &
Citizen's Right, 2005 Edn., Article No. 9, p. lxiv.

17 Perry v. Sindermann, (1972) 408 US 593 (597). See also Rankin v. McPherson, (1987) 483 US 378.

18 Pickering v. Bd. of Education, (1968) 391 US 563 (568).

19 See also Conmick v. Myers, (1983) 461 US 138.

20 (1995) 513 US 454.

21 Pickering v. Bd. of Education, (1968) 391 US 563 (568).

22 Garner v. Board of Public Works, (1951) 341 US 716 (720).

23 Beilan v. Board of Public Education, (1957) 357 US 399.

24 Beilan v. Board of Public Education, (1957) 357 US 399.

25 Sanitation Men v. Sanitation Commr., (1967) 392 US 280.

26 Gerenede v. Board of Supervisors, (1951) 341 US 56.

27 Slochower v. Board of Education, (1956) 350 US 551.

28 Garner v. Board of Public Works, (1951) 341 US 716 (720).

29 Garner v. Board of Public Works, (1951) 341 US 716 (720).

30 United Public Works, v. Mitchell, (1947) 330 US 75; U.S.C.S.C. v. National Assocn., (1973) 413 US 548.

31 United Public Works, v. Mitchell, (1947) 330 US 75; U.S.C.S.C. v. National Assocn., (1973) 413 US 548.

32 Exparte Curtis, (1982) 106 US 371.

33 Beilan v. Board of Public Education, (1957) 357 US 399.

34 Elfbrandt v. Russell, (1966) 384 US 11; Apthekar v. Secy. of State, (1964) 378 US 500; U.S. v. Robel, (1967) 389 US
258.

35 Pickering v. Bd. of Education, (1968) 391 US 563 (568).

36 Pickering v. Bd. of Education, (1968) 391 US 563 (568).

37 United Public Workers v. Mitchell, (1947) 330 US 75; United State Civil Service Commission v. National Assn. of
Letter Carriers, (1973) 413 US 548.

38 (1976) 427 US 347.

39 (1980) 445 US 507.

 353

40 Elrod v. Burns, (1976) 427 US 347 (supra).

41 See alsoRutan v. Republic Party of Illinois, (1990) 497 US 62.

42 Sethu Madhava v. Collector, AIR 1955 Mad 469.

43 Ghosh v. Joseph, AIR 1963 SC 812 (814) : 1963 Supp (1) SCR 789; Radhey Shyam v. Post Master General, A 1965
SC 311 : (1964) 7 SCR 403; All India Bank Employees' Assocn. v. N.I. Tribunal, AIR 1962 SC 171 : (1962) 3 SCR 269.

44 T.K. Rangarajan v. Government of Tamil Nadu, AIR 2003 SC 3032 : (2003) 6 SCC 581.

45 Kameshwar v. State of Bihar, AIR 1962 SC 1166 (1172) : 1962 Supp (3) SCR 369.

46 Ry. Board v. Niranjan, AIR 1969 SC 966 : (1969) 1 SCC 502.

47 P. Bala Kotaiah v. Union of India, AIR 1958 SC 232 : (1958) SCR 895.

48 M.H. Devadrappa v. Karnataka Small Industries Development Corpn., AIR 1998 SC 1064.

49 Javali v. State of Mysore, (1962) 1 LLG 134(SC) .

50 Kameshwar v. State of Bihar, AIR 1962 SC 1166 (1172) : 1962 Supp (3) SCR 369.

51 Pell v. Procunier, (1974) 417 US 817 (826).

52 Patnaik v. State of A.P., AIR 1974 SC 2092 : (1975) 3 SCC 185 (para. 10); Sunil Batra v. Delhi Admn., AIR 1980 SC
1979 : (1980) 3 SCC 488 : AIR 1978 SC 1675.

53 State of Maharashtra v. Prabhakar, AIR 1966 SC 424 : (1966) 1 SCR 702.

54 Sunil Batra v. Delhi Admn., AIR 1980 SC 157 : (1980) 2 SCC 162 (para. 42).

55 State of Maharashtra v. Prabhakar, AIR 1966 SC 424 : (1966) 1 SCR 702.

56 Sunil Batra v. Delhi Admn., AIR 1980 SC 157 : (1980) 2 SCC 162 (para. 42).

57 Prabha v. Union of India, AIR 1982 SC 6 : (1982) 1 SCC 1.

58 Binoo v. State of Kerala, (1986) Cr LJ 1413 (para. 25).

59 Sunil Batra v. Delhi Admn., AIR 1980 SC 157 : (1980) 2 SCC 162 (para. 42).

60 AIR 1978 SC 1514 : (1978) 4 SCC 104.

61 D. Bhuvan Mohan Patnaik v. State of AP, AIR 1974 SC 2092 : (1975) 3 SCC 185.

62 P. Nalla Thampi Thera v. UOI, (1983) 4 SCC 598 : AIR 1984 SC 74.

63 State of AP v. Challa Ramakrishna Reddy, AIR 2000 SC 2083 : (2000) 5 SCC 712.

64 T.V. Vatheeshwaran v. State of TN, AIR 1983 SC 361 : (1983) 2 SCC 68.

65 Binoo v. State of Kerala, (1986) Cr LJ 1413 (para. 25).

CLAUSE (1)(B): FREEDOM OF ASSEMBLYOTHER CONSTITUTIONS 66

(A) European Convention.--Article 11 of European Convention read thus :--

European Convention
"Article 11 Right to Freedom of Assembly and Association

7)  Every man has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and joins trade unions for the
protection of his interests.
 354

9)  No restriction shall be placed on the exercise of these rights other than such
as are prescribed by law and are necessary in a democratic society in the interest of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedom of others.
This article shall not prevent the imposition of lawful restrictions on the exercise of these
rights by the members of the armed forces, of the police or of the administration of the
State."
In DPP v. Jones ,67 the Court was of the opinion that the English laws limited and negatively defined
recognition of the right to public assembly is in compliance with Art. 11, since (1) the right of assembly
exists in English law wherever it is not expressly denied; (2) where citizens assemblies do not obstruct
the highway or involve actual or threatened disorder, then they are not prohibited; and (3) the
requirement of authorisation before a public demonstration may take place does not conflict with Art.
11.
U.S.A.
(B) U.S.A.--The First Amendment to the Constitution of the U.S.A. says:
"Congress shall make no law...abridging....the right of the people peaceably to assemble......".
Freedom of assembly is 'cognate' to the right of free speech and free press and is 'equally
fundamental'.68"The very idea of Government, republican in form, implies a right on the part of its
citizens to meet peaceably for consultation in respect of public affairs and to petition for a redress of
grievances".69
This does not mean, however, that the freedom of assembly is protected by the First Amendment only
for the purpose of petitioning the Government for redress. 70 It extends to assembly for the purpose of
any lawful discussions71 including 'free political discussion' "to the end that Government may be
responsive to the will of the people and that changes, if desired, may be obtained by peaceful
means",72 without incitement to violence or crime.73
Hence, as in the case of freedom of speech, so in the case of freedom of assembly, the Court would
not tolerate anything like pre-censorship, e.g., a regulation that no one shall call an assembly in a
public place except by permission from a particular officer which permission is at the discretion of that
officer74 or that a Union must register with an official before soliciting union membership. 75
The Supreme Court in Staub v. Baxley ,76 held that the ordinance which granted power to the Mayor
and Council of City to grant or refuse to grant permission. This right to solicit members for an
organisation was uncontrolled and vested an absolute discretion on the authority which made the
enjoyment of right to speech and assembly meaningless and violated First and Fourteenth
Amendments.
As regards the right to assemble in public place, it was observed by WARREN C.J. in Walker v.
Birmingham ,77 "Our decisions have consistently held that picketing and parading are means of
expression protected by the First Amendment and the right to picket or parade may not be subjected
to the unfettered discretion of local officials. Although a city may regulate the manner of use of its
streets and sidewalks in the interest of keeping them open for movement of traffic, it may not allow
local officials unbridled discretion to decide who shall be allowed to parade or picket and who shall
not. Wherever like to the streets and parks may rest, they have immemorially been held in trust for the
use of the public and time out of mind, have been used for the purpose of assembly, communicating
thoughts between citizens and discussing public questions. Such use of the streets and public places
has, from ancient time, been a part of the privileges, immunities, rights and liberties of citizens. The
privilege of a citizen of the United States to use the streets and parks for communication of views on
national questions "may be regulated in the interest of all"; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience and in consonance with peace and
good order; but it must not, in the guise of regulation, be abridged or denied".
In Edwards v. South Carolina ,78 nearly 200 Negroes assembled in a particular place to register their
protest against segregation. Police arrested them which ultimately ended in conviction. The Supreme
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Court ultimately set aside the conviction holding that the demonstrators, right to free speech, free
assembly and the freedom of petition for redress of grievances has been infringed. The Court ruled
that the guaranteed First Amendment rights are protected by the Fourteenth Amendment from
invasion by the State. In Feiner v. New York ,79 the Court said that the ordinary murmurings and
objections of a hostile audience cannot be allowed to silence a speaker and are also mindful of the
possible danger of giving overzealous police officials, the complete discretion to break up otherwise
lawful public meetings. It is one thing to say that the police cannot be used as an instrument for the
suppression of unpopular views, and another thing to say that when the speaker passes the bounds of
argument or persuasion and undertakes incitement to riot, they are powerless to prevent breach of
peace. The imminence of greater disorder coupled with speaker's deliberate defiance of police officers
is a justifiable reason to prevent the speaker to continue speech in the meeting and disperse the
meeting. When clear and present danger of riot, disorder or other immediate threat to public safety,
peace or order appears, the power of the State to prevent or punish is obvious. 80
An assembly or meeting, of course, becomes unlawful if it resorts to violence or incites the
commitment of violence or crimes.81 In a case where nearly 200 students assembled together and
marched to the county jail to protest the arrest of co-students, the assembled students blocked the
entrance of the jail and even after persuasion by jail authorities, they did not withdraw from the place.
Consequently, they were arrested and convicted for unlawful trespass upon the property of another.
The conviction was confirmed by the Supreme Court holding U.S. Constitution does not forbid a State
to control the use of its property or its own lawful discriminatory purpose and the demonstrators have
no constitutional right to stay on the property in spite of warning given by jail authorities. As such the
freedom of speech and assembly was not violated. 82 It was held therein that First Amendment does not
guarantee access to property simply because it is owned or controlled by Government. In addition to
time, peace and manner regulations, the State may reserve the forum for its intended purposes,
communicative or otherwise, as long as regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the speaker's view. The State, no less
than a private owner of property has power to preserve property under its control for the use for which
it is lawfully dedicated. If it does neither, it does not become unlawful merely because it is held under
the auspices of a particular party whose object is to secure political or social changes by violence.83 In
this case, it was observed--
"The holding of meetings for peaceful political act ion cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals. The question, if the rights of free speech
and assembly are to be proscribed, is not to the auspices under which the meeting is held but as to its
purpose; not as to the relation of the speakers, 'but whether their utterances transcend the bounds of
the freedom of speech which the Constitution protects. If the persons assembling have committed
crimes elsewhere, if they have formed or are engaged in a conspiracy against public peace or order,
they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter
when the State, instead of prosecuting them for such offences, seizes upon mere participation in a
peaceful assembly and a lawful public discussion as the basis for a criminal charge." 84
In short,
"peaceable assembly for lawful discussion cannot be made a crime". 85 According to JUSTICE
HARLAN in the Yates case,86
"mere doctrinal justification of forcible overthrow," "even though uttered with the hope that it may
ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of
indoctrination preparatory to act ion which was condemned in Dennis."87
In places which by long tradition or by Government fiat have been devoted to assembly and debate,
the rights of the Sate to limit expressive activity are sharply circumscribed. At one end of the spectrum
are streets and parks which have immemorially been held in trust for the use of the public and, time
out of mind, have been used for the purposes of assembly, communicating thoughts between citizens
and discussing public question.88In such places, Government may not prohibit all communicative act
ivities. For, the State, to enforce a content-based exclusion, it must show that its regulation is
necessary on compelling State interest and it is narrowly drawn to achieve that end. 89 In Police Dept.
 356

of Chicago v. Mosley ,90 the Court said that once a forum is opened up to assembly or speaking by
some groups, Government may not prohibit others from assembling or speaking on the basis of what
they intend to say. In Carey v. Brown ,91 the Court struck down permit system that distinguishes on the
basis of content of speech. When the authorities are given excessive discretion, and then give
opportunity to discrimination to local official, the same is also not valid. 92 Though in Adderley v. Florida
,93 the Court indicated that Government could limit expression to property that traditionally had been
used as a public forum, in Tinker v. Deo Moines ,94 the Court said that decisive consideration was
whether the use of Governmental property as a public forum significantly interfered with the purpose
to which the property was dedicated.
In New York Times v. Sullivan ,95 the Court observed that "nation was committed to the principle that
debate on public issues should be uninhibited, robust and wide open. Advocacy of radical political
change through violence or other non-democratic means, on the other hand, may threaten the very
foundation of Government. In addition, restriction on political expression may be deemed necessary to
prevent corruption of the political process or to serve other important societal purposes.
Even when national security is not implicated, Government's special interest in safeguarding the
effectiveness and fairness of the operation may justify some restriction on political expression by
public employees. In US Civil Service Commission v. National Assn. of Letter Carriers ,96 the Court
upheld restrictions on partisan political activity by federal civil servants. But in subsequent decision,
the Court had made it clear that Government employees not protected by civil service system, do not
forfeit their right to express opinion on political matters.
As regards carrying of arms, it is to be noted that the right of assembly guaranteed by the Constitution
is the right to assemble 'peaceably'. Even though another provision of the Constitution (Second
Amendment) guarantees the right "to keep and bear arms", it has been held that it does not imply any
right to assemble as military organisations or to parade the streets and public places with arms and
that it is competent for a State, to make unlawful 97 (see post).
U.K.
(C) England.--Like other individual rights, the right of assembly is not based on any declaration of such
a collective right. It is the sum-total of the right of every individual "to meet another given person or an
indefinite person or an indefinite number of persons so long as the law is not thereby broken" (Dicey).
An enquiry into the right of assembly, in England, is thus an enquiry into the law relating to 'unlawful
assembly'. Apart 'from the law of trespass and nuisance, it may be said that in England, any number of
persons may assemble or meet together, provided they do not constitute an unlawful assembly or
violate any statute. [See, further, under Cl. (3), below]. In DPP v. Jones ,98 the House of Lords upheld a
right of peaceful demonstration in public place. In that case, the defendant was a part of a group of
environmentalists who were arrested during a demonstration. The demonstration was peaceful and
nobody was obstructed. It was held that law should now recognise that public should have a right to
enjoy the highway for any reasonable purpose, provided that the act ivities did not constitute a
nuisance and did not obstruct other people's freedom of movement. It was also held that common law
recognises that there is a right for members of the public to assemble together to express views on
matters of public concern.
The police have wide powers to regulate meetings and processions. They are supplemented by
powers relating to particular places (e.g., Seditious Meetings Act, 1817; meeting of 50 or more people
in the vicinity of Westminster when Parliament is sitting; Serious Organised Crime and Police Act ,
2005). The main general police powers are - (1) The organiser of a public procession intended (a) to
demonstrate support for or opposition to the views or actions of any person or body of persons; (b) to
publicise a campaign or case; and (c) to mark or commemorate an event, must give advance notice to
the police.
There are certain exceptions. These include - (a) procession commonly or customarily held in the
area; (b) funeral procession organised by a funeral in the normal course of his business; (c) cases
where it is not reasonably practicable to give an advance notice (for example, a spontaneous march
(Public Order Act, s. 11). If a senior police officer reasonably believes (a) that any public procession
may result in serious public disorder; serious damage to property or serious disruption to the life of the
 357

community, or (b) that the purpose of the organisers is to intimidate people into doing something they
have a right not to do or not doing something which they have a right to do; he can impose such
conditions as appear to him to be necessary to prevent such disorder, damage, disruption or
intimidation including conditions as to the route of the procession or prohibit it from entering any public
place specified in the direction. (2) All public processions or any class of public procession can be
banned if the Chief Constable Metro Police Commissioner reasonably believes that the power to
impose conditions is not adequate in the circumstances. (3) There are police powers to impose
conditions upon public meetings for the same purpose as in the cases of processions. For this
purpose, a public assembly is an assembly of twenty or more people in a public place which is wholly
or partly open to air. Unlike procession, the police have no general power to ban a lawful assembly,
but can control its location, timing and numbers attending. (4) The Criminal Justice and Public Order
Act, 1994 confers power on a local authority with the consent of Secretary of State to ban certain
kinds of assembly in a place which the public has no right of access or only a limited right of access.
(5) The Serious Organised Crime and Police Act , 2005 adds further control in the case of areas
designated by the Secretary of State within one kilometer of Parliament Square. Though this provision
is intended to protect access to the Parliament, it deters effectively political protest. It is an offence to
organise or take part in a demonstration within a designated area without precious permission, for
which written notice must be given not less than twenty four hours in advance. If proper notice is
given, police must give the authorisation, but this can be subject to conditions including limits on the
number of people who may take part, noise levels and the number of size of banners and placards.
These provisions will neither apply to public processions which fall within the Public Order Act, nor to
lawful trade union act ivities. (6) When breach of peace is taking place or is imminent, police have a
summary law power to arrest anyone who refuses to obey their reasonable requirements. (7) In the
case of anti-social behaviour police can take action under Anti-social Behaviour Act, 2003. Lawful
picketing under trade union legislation is exempted.
Even where a peaceful and lawful meeting is disrupted by hooligans or political opponents, the police
may prevent likely breach of peace by ordering the speaker to stop in preference to controlling the
troublemakers.99 or by removing provocative symbols from the speaker.100
Under Human Rights Act, the police are required to give higher priority to freedom of expression. In
Platform Arzte for das Leben v. Autria ECHR held in the context of an anti-abortion law demonstration
that there was a positive duty to protect a peaceful demonstration even though it may annoy or give
offence to person opposed to the ideas and claims which it is seeking to promote. 101
In R (Laporte) v. Gloucestershire Chief Constable ,102 House of Lords reviewed police common law
powers to prevent a breach of peace. The police had stopped, searched and then turned back with a
police escort a coach-load of anti-Iraq war protesters who were travelling to a demonstration at a
military site. Although this took place several miles away from the site, the police claimed that their
powers extended to taking act ion whenever they reasonably anticipated that a breach of peace was
likely, whether committed by the persons in question or by others. House of Lords invoking the
importance of freedom of expression and emphasising the increasing constraint on public protest, held
that the Common Law power to prevent breach of peace was confined to a situation where the breach
of peace was actually taking place or was imminent. It was also held that the police act ion was
disproportionate, in that, freedom of expression should be limited as a last resort.
Eire (Ireland)
(D) Eire.--See. 40(6)(1) of the Constitution of Eire, 1937 says--
"The State guarantees liberty for the exercise of the following rights, subject to public order and
morality:
The right of the citizens to assemble peaceably and without arms.
Provision may be made by law to prevent or control meetings which are determined in accordance
with law to be calculated to cause a breach of peace or to be a danger or nuisance to the general
public and to prevent or control meetings in the vicinity of either House of the Oireachtas.
 358

Laws regulating the manner in which ......the right of free assembly may be exercised shall contain no
political, religious or class discrimination."
'Public order', in this context, has been interpreted widely, to ensure not only against breach of the
peace but also the breach of any law. Hence, the freedom of assembly is not available to a person in
order to commit the breach of any law".103
Japan
(E) Japan.--See Article XXI, quoted at Article 19(1)(a) ante.
West Germany
(F) West Germany.--Article 8 of the Constitution of West Germany (1948) says--
"All Germans shall have the right without prior notification or permission to assemble peacefully and
unarmed. For open air meetings this right may be restricted by legislation or on a basis of law."
Sri Lanka
(G) Sri Lanka.--See Article 18(1) (f).104
Iran
(H) Iran--Article 27.--Public gatherings and marches may be freely held, provided arms are not carried
and they are not detrimental to the fundamental principles of Islam.
Russia
(I) Russia--Article 31.--Citizens of Russian Federation shall have the right to gather peacefully, without
weapons, and to hold meetings, rallies, demonstrations, marches and pickets.
Singapore
(J) Singapore.--Article 14(1)(b).--All citizens of Singapore have the right to assemble peacefully
without arms.
South Africa
(K) South Africa.--Article 17.--Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petition.
South Korea
(L) South Korea.--Article 21.--All citizens enjoy freedom of speech and the press, and of assembly and
association.
Switzerland
(M) Switzerland.--Article 22.--(1) The freedom of Assembly is guaranteed. (2) Every person has the
right to organize assemblies, to participate in or to abstain from them.
Namibia
(N) Namibia.--Article 21(1)(d).--All persons have the right to assemble peacefully and without arms.
Kuwait
(O) Kuwait.--Article 44.--(1) Individuals have the right of private assembly without permission or prior
notification and the police may not attend such private meetings. (2) Public meetings, demonstration
and gatherings are permitted in accordance with the conditions and manner specified by law; provided
that their purpose and means are peaceful and not contrary to morals.
Italy
(P) Italy.--Article 17.--(1) Citizens are entitled to hold meetings peacefully and unarmed. (2) No
previous notice isrequired for meetings in places to which the public have access. (3) For meetings in
 359

public thoroughfares previous notice must be communicated to the authorities who may forbid them
only for well established reasons of security or public safety.
Denmark
(Q) Denmark.--Article 79.--The citizens shall without previous permission, be entitled to assemble
unarmed. Thepolice shall be entitled to be present at public meetings. Open air meetings may be
prohibited when it is feared that they may constitute a danger to public peace.
Canada
(R) Canada.--Article 2 (c).--Everyone has the following fundamental freedom - (c) Freedom of
peaceful assembly.
Brazil
(S) Brazil.--Article 5 (XVI).--All persons may hold peaceful meetings, without weapons in places open
to the public, regardless of authorization, provided that they do not frustrate another meeting
previously called for at the same place, subject only to prior notice to the proper authority.
Belgium
(T) Belgium.--Article 26.--Belgians have the right to gather peacefully and without arms in conformity
with the laws that regulate the exercise of the right, without submitting it to prior authorisation.
Bangladesh
(U) Bangladesh.--Article 37.--Every citizen shall have the right to assemble and to participate in public
meetings and processions peacefully and without arms, subject to any reasonable restrictions
imposed by law in the interest of public order or public health.
66 (I) Universal Declaration.--Article 20 (1) of the Universal Declaration of Human Rights, 1948 says-- "Everyone has
the right to freedom of peaceful assembly and association".Article 29(2) provides--"In the exercise of his rights and
freedoms, everyone shall be subjected only to such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.(II) Article 21 of the International Covenant on
Civil and Political Rights, 1966, says--"The right of peaceful assembly shall be recognized. No restrictions may be
placed on the exercise of this right other than those imposed in conformity with the law and which are necessary to in a
democratic society in the interests of national security, or public safety, public order (order public), the protection of
public health or morals or the protection of the rights and freedoms of others."; See also Art. 113(2), Czechoslovak; Art.
125(c), U.S.S.R., Constitutions.

67 DPP v. Jones, (1997) 2 All ER 119.

68 De Jonge v. Oregon, (1937) 299 US 353; West Virginia State Board v. Barnett, (1944) 319 US 624.

69 U.S. v. Cruikshank, (1875) 92 US 542.

70 U.S. v. Cruikshank, (1875) 92 US 542.

71 De Jonge v. Oregon, (1937) 299 US 353.

72 De Jonge v. Oregon, (1937) 299 US 353.

73 De Jonge v. Oregon, (1937) 299 US 353.

74 Hague v. C.I.O., (1939) 307 US 496; Sellers v. Johnson, (1948) 332 US 851.

75 Thomas v. Collins, (1945) 323 US 516.

76 Staub v. Baxley, (1958) 355 US 313.

77 Walker v. Birmingham, 388 US 307 : 18 L Ed 2nd 1210. See alsoFrank Hague v. Committee for Industrial
Organisation, 307 US 496.

78 Edwards v. South Carolina, (1963) 372 US 229.

79 (1951) 340 US 315.

 360

80 See alsoCantewell v. Connecticut, (1940) 310 US 296.

81 De Jonge v. Oregon, (1937) 299 US 353.

82 Adderley v. Florida, (1966) 385 US 39.

83 De Jonge v. Oregon, (1937) 299 US 353.

84 De Jonge v. Oregon, (1937) 299 US 353.

85 De Jonge v. Oregon, (1937) 299 US 353.

86 Yates v. U.S., (1956) 354 US 298 (378).

87 Dennis v. U.S., (1951) 341 US 494.

88 Hague v. CIO, (1939) 307 US 496.

89 Carey v. Brown, (1980) 447 US 455.

90 (1972) 408 US 92.

91 (1980) 447 US 455 (supra).

92 Lakewood v. Plain Dealer Publication Co., (1988) 486 US 750.

93 (1966) 385 US 39 (supra).

94 (1969) 383 US 503.

95 (1964) 376 US 254.

96 (1973) 413 US 548.

97 Presser v. Illinois, (1866) 116 US 252 (265).

98 (1999) 2 All ER 257.

99 Duncan v. Jones, (1936) 1 KB 218.

100 Beatty v. Gillbanks, (1882) 9 QBD 308.

101 See alsoEzelin v. France, (1991) 14 EHRR 362; Steele v. UK, (1999) 28 EHRR 667.

102 (2006) UKHL 55.

103 Dunne v. Fitzpatrick, (1958) IR 29.

104 See Author's Select Constitutions of the World.

INDIA
Freedom of Assembly and its Limitations
1. "The very idea of Government republican in form, implies a right on the part of its citizens to meet
peaceably for consultation in respect of public affairs".105
It follows, therefore, that the freedom of assembly is an adjunct of and equally essential as the
freedom of expression to a democratic system of Government.
Freedom of speech, press and assembly are dependant upon the power of the Constitutional
Government to survive. If it is to survive, it must have the power to protect itself against unlawful
conduct, and under certain circumstances, against incitement to commit unlawful act s. 106 The privilege
of a citizen of United States to use the streets and parks for the communication of views of national
question may be regulated in the interest of all; it is not absolute, but relative and must be exercised in
 361

subordination to the general comfort and convenience and in consonance with peace and good order,
but it must not in the guise of regulation be abridged or denied. 107 The right to assemble peacefully can
be enjoyed only if the individuals do not carry any weapon with them. The exercise of right to
assembly is subject to the above restriction in America. 108
The right of peaceful assembly and association has been recognised as a basic human right under the
Universal Declaration of Human Rights. (See Art. 20). It has always been recognised as a basic
attribute of citizenship under a free Government. More than a century ago, CHIEF JUSTICE
MARSHALL of the US Supreme Court observed that this right derives its source from those laws
whose authority is acknowledged by civilised man throughout the world. 109 As IVOR JENNINGS very
effectively brings out, there are some rights which are inherent in a system of Government by
opinion.110 This system implies the right to create opinion and to organise it with a view to influence the
conduct of Government. There could be no democratic system if minority opinions cannot be
expressed or if the people cannot meet together to discuss their opinion and their action, or if those
who think alike on any subject cannot associate for mutual support and for the propagation of their
common ideals. The same point is made by CARL J. FREDRICK, in his book111, when he expressed
that, whether or not the free speech and free assembly are natural rights, they are necessary
concomitants of constitutional decision, for, major deliberation of an issue by any number of people
who are to act collectively, presupposes an exchange of view on the issues involved in the decision.
The temptation to interfere with this right on the part of those entrusted with the State power is,
however, great. In the absence of proper safeguards, this can easily be eroded. If such erosion is
allowed without hindrance and resistance, it can ultimately lead to the replacement of a free
Government governed by law and consent and participation of the governed by an authoritative
system depending for its perpetuation on its control over the levers of State power.
"One can safely make the positive assertion, on the basis of human experience, that the survival of a
Government by consent depends quite a great deal on the zealousness with which the people
safeguard the right to free assembly and freedom of association and create institutions which can
effectively check-mate their erosion. Eternal vigilance, therefore, is required on the part of citizens, so
that those rights are preserved, sustained and strike deep roots in the policy". 1
2. Our Constitution guarantees the above right subject to three limitations--

47a)  the assembly must be peaceable;

49b)  it must be unarmed;2
31c)  the State may impose any reasonable restriction as may be deemed
necessary in the interests of public order; or of the sovereignty or integrity of India.
Disorderly or tumultous assemblage may be forbidden. It is obvious that the right exists
only in the case of an assemblage for lawful purposes. 3
3. The right of public meeting or of4 procession is not specifically guaranteed by the Constitution but
will follow from the right of assembly5. But there is no right to hold a meeting anywhere as the citizens
please,6e.g., on private property or even on Government property, 7 in the absence of any law or usage
supporting such right.8 The right to hold meetings in public places is subject to the control of the
appropriate authority regarding the time and place of the meeting. 9
It was held in Himmat Lal's case (supra) that freedom of assembly is an essential element of any
democratic system. At the root of this concept lies the right of citizen to meet face to face with others
for the discussion of their ideas and problems, religions, political, economic or social. Public streets
are the "natural" places for expression of opinion and dissemination of ideas. Public meetings in open
spaces and public streets form part of the tradition of our national life. The parks are held for public
and public streets are also held for the public. It is doubtless true that the State or local authority can
regulate its property in order to serve its public purposes. Streets and public parks exist primarily for
other purposes and the social interest promoted by the untrammelled exercise of freedom of utterance
and assembly in public street must yield to social interest which prohibition and regulation of speech
are designed to protect. The power of the appropriate authority to impose reasonable regulation in
order to assure the safety and convenience of the people in the use of public highways has never
 362

been regarded as inconsistent with the fundamental right of assembly. A system of licensing as
regards the time and manner of holding public meetings on a public street has not been regarded as
an abridgement of the fundamental right of public assembly or of free speech. But a system of
licensing public meeting will be upheld by the Courts, only if, definite standards are provided by the
law for the guidance of the licensing authority. Vesting of unregulated discretionary power in a
licensing authority has always been considered as bad. (Per MATHEW, J.). The right to hold a
meeting at a particular place must rest on proof of the user of that place for the exercise of a
fundamental right, the right to such a user must be established in each particular case quite apart from
or independently of fundamental rights guaranteed under Art. 19(1)(a) - (Per BEG, J.). The learned
judge held that the right of the public is the right to pass along the highway and other incidental and
reasonable user. It does not extend to the holding of public meetings. A meeting on the highway will
not necessarily be illegal. It may be sanctioned by custom or rest on permission from an authority
prescribed by statute, to put a particular part of the public highway to an exceptional and extraordinary
user for a limited duration even though such user may be inconsistent with the real purpose for which
the highway exists. The right, however, must be shown to exist or have a legal basis, in every case in
which a claim for its exercise is made, with reference to the particular part of the highway involved.
To some extent, there is common ground between Art. 19(1) and 19(1)(b). For example,
demonstration, procession and meetings considered under Art. 19(1)(a) also fall under Art.19(1)(b),
for, a demonstration also amounts to an assembly and therefore the same principles apply under both
clauses. The right to strike is not available under either of these clauses. 10
4. The right to take out a procession along public streets, religious 11 or nonreligious,12--is, similarly,
subject to the order of local authorities regulating traffic 13 and the rights of the public to use the street
as a passage.14 But the State cannot prohibit assembly on every public street or public place.15
In ISKON v. Lee ,16 the U.S. Supreme Court held that the activities of ISKON insofar as raising fund for
movement while making "Sahkirtan" within the area of airport could be curtailed or prohibited since
free flow of traffic is likely to be disrupted and solicitation of money in the busy area which makes
visitors to stop is not permissible. It was held that nothing should be done which would disrupt the
movement of the public in an airport area and solicitation for money would result in stopping a person
and in the alternative the passengers who wish to avoid the solicitation may have to alter path slowing
both themselves and those around them, which is unconstitutional.
In Heffron v. ISKON ,17 the Court upheld the rule which prohibits the sale and distribution of any
merchandise including printed and written material except from a booth rented from State. In that
case, the Court was considering the restriction imposed on the conduct of fairs which attracts large
crowd. It was held that flow of the crowd and demands for safety are more pressing in the context of
the fair and therefore there was a need to maintain an orderly movement of the crowd. The Court
further observed that in the interest of the State to control the crowd and if an organisation like ISKON
is allowed freely to move in the fair ground for distribution and selling of literature, and soliciting fund
at will, it will affect substantial State interest.
In Members of City Council of Los Angeles v. Taxpayers for Vincent ,18an ordinance prohibiting signs
on public property applied to individual to tie political campaign signs to public utility poles was held
constitutionally valid. It was held that the ordinance diminishes the total quantity of appellant's
communication in the city, but the State may curtail speech in a contained neutral manner for which
restriction furthers an importance of substantial governmental interest. It was undisputed that the
problem which was sought to be faced by the audience is that the visual assault on citizens presented
by an accommodation of sign posted on public property which constituted a significant substantial evil.
The appellant's expressive act ivity is not broader than necessary to protect the city's interest. By
banning these signs the authority did no more than eliminating the exact sources of evil had sought to
remedy. The contention that public property covered by ordinance was a public forum was rejected as
they failed to demonstrate the existence of traditional right of access respecting such item as utility
poles for the purpose of communication comparable to that recognised for public streets or parks. It
was held that the mere fact that the Government property can be used as a vehicle for communication
does not mean that the constitution requires such use to be permitted.
 363

(The right to take out processions will be separately dealt with).

Clause (3) : Restrictions in the Interests of Sovereignty and Integrity of India
This ground has been inserted in Cls. (2), (3), (4) of Art. 19, by the Constitution (16th Amendment) Act,
1963, in order to control secessionist agitation and conduct.
Restrictions in the Interest of Public Order
U.S.A.
(A) U.S.A.--The right of assembly should be so exercised as not to conflict with other lawful rights of
individuals or the public. Thus, there is no constitutional right to make a speech on a highway or near
about so as to cause a crowd to gather and to obstruct the highway. 19The Court said that Municipal
authorities as trustees for the public have the duty to keep their communities street open and available
for movement of people and property, the primary purpose for which the streets are dedicated. So
long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the
street to impart information through speech or the distribution of literature, it may lawfully regulate the
conduct of those using the streets. For example, a person could not exercise this liberty by taking his
stand in the middle of a crowded street contrary to traffic regulation and maintain his position to the
stoppage of all traffic; nor does not the guarantee of freedom of speech or of the press deprive a
municipality of power to enact regulations against throwing literature broadcast in the street.
Prohibition of such conduct would not abridge the constitutional liberty since such act ivity bears no
necessary relationship to the freedom to speak, write, print or distribute information on opinion.
"Where conduct affects the interests of other individuals and the general public, the legality of that
conduct must be measured by whether the conduct, conforms to valid law, even though the conduct is
engaged in pursuance of plans of an assembly".20
Hence comes the power of regulating meetings at public places, which we have already noticed and
also the power to break up a meeting if the speaker undertakes incitement to riot or breach of the
peace.21
In Terminiello v. Chicago ,22 the Supreme Court struck down a breach of peace ordinance. In that case,
in a meeting, the petitioner, in a bad tone, criticised various political and racial groups and called his
adversaries with bad names, which was heard by persons inside and outside the auditorium, and
there was chaos and some furniture was also destroyed. In that case, the trial Court held that "breach
of peace" will include speech which stirs up the public to anger, invite disputes or bring about a
condition of unrest". But the Supreme Court, by a majority judgment, held, "The vitality of civil and
political institutions in our society depends on free discussion. ... Accordingly, a function of free speech
under our system of Government is to invite dispute. It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction when conditions as they are, even stirs people of
anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions
and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of
speech, though not absolute...is nevertheless protected against censorship or punishment, unless
shown likely to produce "a clear and present danger" of a serious substantive evil that rises far above
public inconvenience, annoyance or unrest... There is no room in our Constitution for a more
restrictive view. For the alternative would lead to standardisation of ideas either by Legislatures,
Courts or dominant political or community groups".
In the realm of religious faith and in that of political belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his neighbour. To persuade others to his point of
view, the pleader, as we know at times resorts to exaggeration, to vilification of men who have been or
are prominent in church or State and even to false statement. But the people of this nation have
ordained in the light of history, that in spite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a
democracy.23 In Edwards v. South Carolina ,24 the Court said: "Constitution does not permit a State to
make criminal, peaceful expression of unpopular views". In that case, a few black people assembled
and alleged that there was segregation which they protested. The Court said that a law which has
defined a criminal offence so as to permit conviction of speakers, if their speech "stirred people to
 364

anger, invited public dispute or brought about a condition of unrest and a conviction on the above
grounds may not stand".25
But the freedom cannot be abridged in the guise of 'regulation'. Regulation is valid only in so far as it is
reasonable and non-discriminatory.26
"The privilege of a citizen of the United, States to use the streets and parks for the communication of
views on national questions may be regulated in the interests of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in consonance with
peace and good order; but it must not, in the guise of regulation, be abridged or denied". 27
Thus, a statute which empowered an official to grant or refuse 'permits' for the holding of public
meetings, solely according to his personal opinion, has been held to be invalid on the ground that it
can be made "the instrument of arbitrary suppression of free expression of views on national affairs". 28
On the other hand, a Municipal authority has been held competent to require a licence or to impose
other regulations, "to prevent confusion by overlapping parades or processions, to secure convenient
use of the streets by other travellers, and to minimize the risk of disorder," provided such regulation
was fair and undiscriminating.29 In this case30 it was observed--
"Civil liberties, as guaranteed by the Constitution, imply the existences of an organized society
maintaining public order with which liberty itself would be lost in the excess of unrestrained abuses.
The authority of a municipality to impose regulations in order to assure the safety and convenience of
the people in the use of public highways has never been regarded as inconsistent with civil liberties
but rather as one of the means of safeguarding the good order upon which they ultimately depend." 31
The same principle applies to the use of parks and other public places for the purposes of assembly. 32
In Davis v. Massachusetts ,33 conviction of a person was upheld for having violated an ordinance that
forbade among other things any "public address on any public owned property" except in accordance
with the permit from the Mayor. It was held that the Federal Constitution does not have the effect of
creating an opportunity and personal right for the citizen to use public property in defiance of the
Constitution at the loss of the State. It was held that the Legislature has right absolutely or
conditionally to forbid public speaking in a highway or public park is no more an infringement of the
right of a member of the public than for the owner of a private house to forbid it in his house.
In U.S. v. Grace ,34 the Federal Statute prohibiting any person to display on the public sidewalks
surrounding the Supreme Court building in the flag, banner or device designed to bring into public
notice any party or organisation or movement as invalid. The public sidewalks forming the perimeter of
the Supreme Court grounds are public forums. The Statute could not be justified as a means to
maintain proper order of decorum near the Supreme Court, for a total ban was unnecessarily achieved
its end. Restriction could not be justified as a means to prevent the appearance with the Supreme
Court, is subject to outside influence for the restriction did not sufficiently serve that purpose to sustain
its validity.
The validity of restrictions upon the exercise of the right of assembly is judged by the 'clear and
present danger test'35 as in the case of the right of expression. Thus, though the right of assembly may
be regulated to prevent assaults and other forms of anti-social activities, 36 mere public intolerance or
animosity cannot be a ground for suppressing the right of assembly; 37 a State cannot prohibit an
assembly which might cause 'annoyance' to others.38 At any rate the restrictive law should not be
'vague' or overbroad.39 In Barnette's case,40 the Court said: "If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can proscribe what shall be orthodox in
politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act
their faith therein".
This does not, however, mean that people have the right to propagandize protests or views 'whenever
and however and wherever, they please'.41 Convictions for dancing demonstrations, though not violent,
were accordingly upheld because they were made on the premises of a county jail in protest of the
arrest of fellow students.42
 365

Prohibiting "demonstration, picketing, sit-in protest marches, political speeches and similar activities in
certain military reservation areas was upheld on the ground that it is the business of a military
installation to train soldiers not to provide public forum. It was observed that the regulation reflects" a
considered policy objectively and evenhandedly applied of keeping official military act ivities free from
entanglement with partisan and political campaigns of any kind nor to insulate military from both the
reality and appearance of acting as a handmaiden for parties and political causes or candidates. 43
Similarly, prohibiting demonstrations near schools and educational institution was held valid on the
ground that right to an undisturbed school session conducive to the students learning is to be
preserved and nothing which materially disturbs class work or involves substantial order or invasion of
rights of others could be permitted and such prohibition is not violative of First and Fourth Amendment
to American Constitution.44 An ordinance enacted for prohibiting the residential picketing that focuses
on and takes place in front of a particular residence was upheld on the ground that such picketing
would affect the right to privacy. It was held that inmates of the house could not be made captive
which meant literally trapped inmates within the home. 45 In Grayned v. Rockford ,46 the Court said the
following observation was made as to "public forum". "The nature of a place, the pattern of its normal
act ivities, dictate the kinds of regulations of time, place and manner that are reasonable. The crucial
question is whether the manner of expression is basically incompatible with the normal activity of a
particular place at a particular time. Our cases make clear that in assessing reasonableness of a
regulation, we must weigh heavily the fact that communication is involved : the regulation must be
narrowly tailored to further the State's legitimate interest".
U.K.
(B) England.--To take part in an unlawful assembly is a common law misdemeanour. An assembly
becomes unlawful when three or more persons assemble together--(i) to commit a crime; (ii) to
commit, or when assembled, do act ually commit, a breach of the peace; (iii) for any purpose, lawful or
unlawful, and resorts to such conduct (e.g., by carrying arms or the like) as to cause reasonable
persons in the neighbourhood to fear that breach of the peace will be committed. An unlawful
assembly may also be dispersed by a Magistrate, with the application of as much force as may be
necessary, to meet the situation, and even peaceful citizens have the duty to assist in the act of
dispersing the assembly, when called upon to do so. The assembly may be inside a building or in the
open.47
Under the common law of England, carrying of arms in an assembly did not per se make it an unlawful
assembly; it would make the assembly unlawful if, by reason of that fact, reasonable persons might be
caused to fear that a breach of the peace was likely to be committed. 48 In Kamara v. DPP ,49 students
from Sierra Lone occupied the Sierra Lone High Commission in London, locking the staff in a room
and threatening them with an imitation gun. Their conviction inter alia, for unlawful assembly was
upheld by House of Lords which ruled that it was not necessary to show that an unlawful assembly
had occurred in a public place. But by the Public Order Act, 1936, the carrying of unauthorised
weapons at public meetings or processions has been altogether prohibited.
An unlawful assembly in action may be liable for the cognate offences of rout, riot or affray. 50
Other restrictions imposed by statutes in England, upon the right of assembly, are--

43i)  The Public Order Act, 1936 makes it an offence, inter alia, for any person to
attend, any public meeting with a uniform51signifying his association with any political
organisation. It authorises the Police to impose conditions upon public processions. The
Public Order Act, 1986; the Public Order (Amendment) Act, 1996 and the Public
Procession (Northern Ireland) Act, 1998.
41ii)  The Prevention of Crime Act, 1953 (as amended in 1986) makes it an
offence to carry an offensive weapon in any 'public place' without lawful authority or
reasonable excuse.52
26iii)  The Public Order Act, 1986, replaces the common law offences of riot,
unlawful assembly and affray, creating new statutory offences. Briefly speaking, the new
 366

offence of riot is committed when 12 or more persons assemble together and use or
threaten unlawful violence, for a common purpose.
18iv)  The Criminal Justice & Public Order Act, 1994 which supplements Public
Order Act, 1986.
15v)  The Highways Act, 1980, Protection from Harassment Act 1997.
12vi)  The Public Meetings Act, 1908.
7vii)  The Trade Union and Labour Relations (Consolidation) Act, 1992.
The new offence of violent disorder would be constituted when 3 or more persons present together
use or threaten unlawful violence and their conduct, taken together, would cause any person of
reasonable fitness present at the scene to fear for his personal safety.
The new offence of 'offensive conduct'consists of act s of hooliganism, such as when a person uses
threatening, abusive or insulting words or behaviour or displays any writing having similar effect, 53 in
relation to another person, or with the object of inciting racial hatred.
India.
(C) India.--Clause (3) of the present Article of our Constitution empowers the State (as defined in Art.
12) to impose reasonable restrictions upon the right of assembly in the interest of 'public
order';54'sovereignty and integrity of India'.55 The right to procession is implied in the right to assemble.
"There is right to conduct a religious procession with its appropriate observances along the highway.
Persons of whatever sect are entitled to conduct religious processions through public streets, so that
they do not interfere with the ordinary use of such streets by the public. 56(Detailed discussion about
rights of public meetings and processions follows).
Right of public meeting
U.K.
(A) England.-- A "public meeting" may be defined as a meeting held for the purpose of discussing or
expressing views on matters of public interest and which the public or any section thereof is invited to
attend. A public meeting may be held either on private premises or in a public place. Private premises
are premises to which the public have access only on permission of the owner or occupier. A public
place includes any highway or any other premises or place (such as public parks, sea, beach or public
road) to which public have or are permitted to have access whether on payment or otherwise. Certain
are provisions enabling the authorities to impose conditions in certain circumstances on a public
assembly under the Public Order Act, 1986.
There is no general obligation on State authorities to provide for public assemblies in public places for
the exercise of free speech, nor is there any common law right to use it as common, a foreshore or a
public park, garden or town halls as venues. There is more latitude towards public meetings in public
parks and gardens which are intended for recreation and exercise, than to such meeting on its
highway. Bye-laws made by local authorities usually require the written permission of the Council for
holding meetings on grounds such as a square or park belonging to local authority as the highway
authority or otherwise. Permission may be refused if a breach of peace is apprehended. Byelaws may
create minor offences triable summarily in the magistrate Courts. The owner or occupier of a private
premises for example, the hirer of a hall may hold a public meeting there or licence others to do so.
The organiser of the meeting may exclude or reject trespassers, after asking them to leave; if they
refuse, he may use reasonable force, although he may not arrest or detain them. A qualification to this
right of the occupier or licensee is found in common law power of the police to enter such premises to
deal with or prevent a breach of the peace as recognised in Thomas v. Sawkins ,57 This case has been
criticised as it recognised police power, not only to enter private premises to quell an existing breach
of the peace, but also to do so where there are reasonable grounds for believing that a breach of
peace was imminent. The ECHR has accepted that this is a legitimate aim within ECHR. 58 It would
appear that the power to enter to deal with or prevent of breach of peace would apply also to private
meetings on private premises.59 In addition, the police have particular powers to deal with certain types
of noisy, nocturnal, open air gathering.60 But in Davis v. Lisle ,61 it was observed that police have no
 367

power to enter private premises without a warrant in connection with a summary power not involving
breach of peace.
The "right of assembling" is nothing more than a result of the view taken by the Courts as to individual
liberty of a person and individual liberty of speech. There is no special law allowing A, B and C to meet
together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he
pleases so that he does not commit a trespass and to say what he likes to B so that his talk is not
libellous or seditious, the right of B to do the like, and the existence of the same rights of C, D, E and F
and so on "ad infinitum" lead to the consequence that A, B, C, D and a thousand or ten thousand other
persons may (as a general rule), meet together in any place where otherwise they each have a right to
be for a lawful purpose and in a lawful manner. There is a general right (i.e., liberty) to promote or take
part in a public meeting on private premises and to promote or take part in a public procession,
subject in either case to the infringement of particular legal rules. It is doubtful, however, whether there
is such a general right to promote or take part in a public meeting in a public place without the licence
of the owners (often the local authority) since this will in itself almost invariably involve a trespass to
land as well as in many cases a public nuisance, although a public meeting in a public place is not
necessarily unlawful.62
In England, any person has the right to meet another or an indefinite number of persons, so long as
the law is not thereby infringed. A meeting may be held either in a private premise or at a public place.

44i)  If persons seek to hold a meeting at private premises without the owner's
consent, they, may be liable in tort for trespass; and also for the offence of conspiracy to
trespass, if the ingredients are established.
42ii)  As to meeting in a public place, at common law, there is neither any specific
right to hold a meeting at such places63 nor does such meeting become necessarily
unlawful.64A public meeting is defined (in Public Order Act 1986) to mean an assembly of
twenty or more people in a public place which is wholly or partly open to the air. The
Criminal Justice and Public Order Act 1994 added new powers in respect of public
assemblies. These new powers to "trespassory assemblies" that is to say an assembly
on land to which the public has no right or access or only a limited right of access, a
definition wide enough to include a highway. Public Order Act, 1986 also provides for a
chief officer who has 'reason to believe' that such an assembly (a) is likely to be held
without permission of the occupier of the land, and (b) may result in serious disruption to
the life of the community or significant damage to land, a building or monument of
historical, archaeological or scientific importance. If the above conditions are satisfied,
the Chief Officer of Police may apply to the local authority for an order prohibiting all
"trespassory assemblies".
It becomes unlawful if it constitutes an 'unlawful assembly' under the common law or contravenes any
of the statutory provisions mentioned already. In the absence of statutory restrictions, no permission of
any authority is necessary to hold a meeting in a public place.
But a meeting on the highway is prima facie unlawful, being an obstruction of the right of the public to
use the highway for passing and repassing.65 Such obstruction may constitute a public nuisance, 66 and
an offence under the Highways Act, 1980.
Under the Public Meeting Act, 1908, it is an offence to act in a disorderly manner for the purpose of
preventing the transaction of a lawful meeting.
In Trade Union and Labour Relation (Consolidation) Act 1992, special rules govern picketing in the
case of trade disputes. It provides: "It shall be lawful for a person in contemplation or furtherance of a
trade dispute to attend (a) at or near his own place of work, or (b) if he is an official of a trade union, at
or near the place of work of a member of that union whom he represents for the purpose only of
peacefully obtaining or communicating information or peacefully persuading any person to work or
abstain from working". As per this provision, the freedom to picket in a trade dispute is restricted to
one's own place of work. Secondary picketing - the picketing of other work places - is thus excluded.
 368

There is no restriction in the Act on the number of people who may picket in this way, but which is
provided in Code of Practice on picketing.
The Metropolitan Police Act , 1839, authorises the Commissioner of Police to issue directions to
prevent obstruction to the Houses of Parliament, by holding assemblies in the neighbourhood. A
disobedience to such direction would be punishable if the assembly which was held was capable of
causing obstruction to the free passage of members to or from the Houses of Parliament or disorder
or annoyance in the neighbourhood.67
U.S.A.
(B) U.S.A.--As stated already, the freedom to assembly connotes that citizens have the right to
assemble peacefully at any public place for the discussion of public questions 68 of any kind,69 subject to
non-discriminatory70 and reasonable regulation in the interests of the comfort and convenience of the
general public and public order.71
The right to hold a meeting at a public place extends even where the title to the public place is
privately owned,72 but not to a private place, without the consent of the owner of the private land or
place.73
But there is no right to demonstrate or to hold a meeting whenever, however and wherever people
please.74
Thus, the right to hold a meeting on a public highway may be regulated in order to prohibit
unreasonable interference with the public traffic75 or the use of sound amplifiers in streets or public
places may be regulated in the interests of protecting the neighbourhood from a nuisance. 76 In Davis v.
Massachusetts ,77 which affirmed the decision in Commonwealth v. Davis ,78 it was held that
regulations are not meant to restrain freedom of speech, but it is directed towards the modes in which
"the Boston Common" may be used. While affirming the above view, the Court said that, federal
Constitution does not have the effect of creating a particular and personal right in the citizen to use
public property in defiance of the Constitution and laws of the State. The Court said: "Indeed, the right
to absolutely exclude all rights to use, necessarily include the authority to determine under what
circumstances such use may be availed of, as to greater power contains the lesser".
Wherever the titles of streets and parks may rest, they have immemorially been held in trust for the
use of the public, and time out of mind, have been used for the purposes of assembly, communicating
thoughts between citizens and discussing public questions. Such use of the streets and public places
has, from ancient times, been part of the privileges, immunities, rights and liberties of citizens. The
privilege of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in consonance with peace
and good order, but it must not, in the guise of regulation be abridged or denied. 79
In United States v. Grace ,80 the Court invalidated a federal statute prohibiting any person to display on
the public side walks surrounding the Supreme Court building "any flag, banner or device designed to
bring into public notice any party, organisation, or movement. It was held "that public sidewalks"
forming the perimeter of the Supreme Court building on "public forums" and that the Governments'
ability to restrict expression in such places is very limited. It was held that the Government may
enforce reasonable time, place and manner restrictions in public forums only if the restrictions are
content-neutral and narrowly tailored to serve a significant Government interest, and leave open
ample alternative channels of communication and it may absolutely prohibit "a particular type of
expression" only if the prohibition is "narrowly drawn to accomplish a compelling governmental
interest". The Court further held that relevant statute could not be justified as a "means to maintain
proper order and decorum" near the Supreme Court for a total ban was not necessary to achieve
those ends and the restriction could not be justified as a means to prevent the appearance that the
Supreme Court is subject to outside influence, for, the restriction did not "sufficiently serve" that
purpose "to sustain its validity".
In Grayned v. Rockford ,81 the question was regarding the validity of an ordinance prohibiting any
person, while on public or private grounds adjacent to any building in which a school or any class
 369

thereof is in session to make any noise or diversion which disturbs or tends to disturb the peace or
good order of such school. In that case two hundred demonstrators marched on a public sidewalk
about one hundred feet from a public high school were convicted for violating the ordinance. The
conviction was confirmed and the ordinance was held as valid. The Court explained, although the
public sidewalk adjacent to a school ground may not be declared off limits for expressive act ivity,
such activity may be prohibited if it materially disrupts class-work or involves substantial disorder or
invasion of the rights of others. The Court held that anti-noise ordinance is narrowly tailored to State's
compelling interest in having an uninterrupted school session conducive to the students' learning
"punishes only conduct which disrupts or is about to disturb normal school act ivities, and requires that
decision be made on an individual basis and gives no licence to punish any one because of what he is
saying. The Court concluded that such a reasonable regulation is not inconsistent with the First and
Fourteenth Amendment".
Such regulation may even take the shape of requiring a previous permit provided constitutionally
permissible standards are provided for the exercise of the power to issue permits. 82 In that case, the
Court observed that the State has power to regulate labour unions. They cannot claim special
immunity from regulation. Such regulation however, whether aimed at fraud or other abuses, must not
trespass upon the domain set apart for free speech and free assembly. This court has recognised that
in the circumstances of our times, the dissemination of information concerning the facts of a labour
dispute must be regarded as within the area of free discussion that is guaranteed by the Constitution.
Free discussion concerning the condition in industry and causes of labour disputes appears to us
indispensable to the effective and intelligent use of the processes of popular Government to shape the
destiny of modern industrial society. The right to discuss and inform people concerning the
advantages and disadvantages of unions and joining them is protected not only as part of free speech,
but as part of free assembly. A meeting cannot be restricted on the mere ground that it is being held
under the auspices of a particular party, 83 nor can the conveners of a public meeting be required to get
themselves registered before 'delivering a speech.84
Demonstration before a jail may be totally prohibited. 85 In that case, the Court explained: "Public
property which is not by tradition or designation a forum for public communications is governed by
different standards. The First Amendment does not guarantee access to property simply because it is
owned or controlled by Government. In addition to time, place and manner regulation, the State may
reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression merely because public officials oppose
the speaker's view. The State, no less than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully dedicated".
India
(C) India.--Our Constitution does not specifically enumerate the right of public meeting or that of public
procession though these are so guaranteed by some Constitutions. 86 The reason of this omission is
that the rights of meeting and procession are really included in the right of assembly. Where the
assembly has got for its object the discussion of matters of public interest, it becomes a public
meeting.87
'Public meeting' means a meeting which is open to the public or to any class or portion of the public
( Prevention of Seditious Meetings Act 10 of 1911 - s. 3); A meeting which any person may attend.
Persons may lawfully meet at any place with the consent of the owner or occupier for any lawful
purpose, but not in any place, without the consent of the owner or the occupier of that place, nor in
any public street, which may be used only for passage and purposes incidental thereto. By custom,
public meetings may be held at various particular places.
A meeting is public if its organisers open it to the public or, by issuing a general invitation to the press,
manifest intention to communicate the proceedings to a wider public. A meeting does not lose its
public character because admission is subject to some restriction (as in the case of press
conference).88 The term "public meeting" is generally used for a gathering of persons who stand or
take their seats at a particular place so as to be addressed by somebody who is heard by or
expresses the feelings of persons assembled. If the term "meeting" were really confined to what may
 370

be called moving assembly or procession, a right to hold it could be comprehended within the right to
take out a procession which should be distinguished from what is commonly understood as a right to
hold a public meeting. Such a meeting, if held on a public highway, must necessarily interfere with the
user of the highway by others who want to use it for the purpose for which the highway must be
deemed to be dedicated.89(Per BEG, J.).
"A right to public meeting simply follows from the right of the subject to do what he likes provided that
he commits no crime or infringes any private right of property, by, for example, committing a trespass.
It is essential in a free society that public meeting should be held without let or hindrance; on the other
hand society has an interest in preventing disorder and riot and there is at times, a distinct risk that
public demonstrations will result in such disorder. Between these two principles the law has
endeavoured to hold a rather fine balance. .... There can be no doubt that there is a 'right' to meet for
any lawful purpose and in practice meetings are held regularly in most towns at street corners, in
squares, parks or on commons as well as in private premises. But "a distinction may be drawn at the
outset between liberty to express opinions political and otherwise, and the liberty which the law allows
as to choice of time and place"... That in most of the places where crowds gather regularly for
meetings, the meeting is in fact held by sufferance and not as of right. There is no right to hold
meetings on the highway as the public rights therein is a right to pass and re-pass; any lingering
thereon is technically an obstruction and so constitute trespass or nuisance against adjoining owners.
Nor is it a defence to show that a clear passage round the obstructing meeting was left; prima facie a
meeting in a street or open space may be a trespass, nuisance or contrary to some statute or by
law".90
"Public procession" means a procession in a 'public place', and 'public place' means (1) any highway
and (2) any place to which at the material time the public or any section of the public has access, on
payment or otherwise, as of right or by virtue of express or implied permission. 91Section 16 of the
Public Order Act, 1986 has defined "public procession" as a process in a public place. A procession
has been described as a meeting on the move and many processions are in fact preliminary to the
holding of a meeting.92
A procession is a public procession if it takes place in a public place, that is on the high way or
anywhere to which the public has access by right or by express or implied permission regardless of
whether access is obtained by payment. Thus, a football ground, library or a cinema hall is a public
place for this purpose, In Flockhart v. Robinson ,93 it was as a body of persons moving along a route.
A restriction of this right would be upheld if it is in the interest of public order e.g., the provision in
Sections 126 of the Bengal Districts Act , 1836 (see post), which bans public meetings within any
constituency on the date of an election;94 or in s. 144 of the CrPC , which authorises the making of
temporary orders for the prevention of an imminent breach of the peace; 95or s. 14 of the U.P. Opium
Smoking Act, 1934, which penalises the act of being a member of an opium smoking assembly 96; or for
the purpose of suppressing the mischief of gambling. 97
There is a direct and not merely implied responsibility upon the Government to function openly and in
public interest. The right to information itself emerges from the right to freedom of speech and
expression. Unlike an individual, the State owns a multidimensional responsibility. It has to maintain
and ensure security of the State as well as social public order. It must give utmost regard to the
freedom of speech and expression which a citizen or a group of citizens may assert. The State has
also a duty to provide security and protection to the persons who wish to attend such assembly at the
invitation of the person who is exercising his right to freedom of speech or otherwise.
The right to hold meetings in public places is subject to control of appropriate authority regarding the
time and place of the meeting. Orders, temporary in nature, can be passed to prohibit meeting or to
prevent an imminent breach of peace. Such orders constitute reasonable restriction upon freedom of
speech and expression. The content is not the only concern of controlling authority, but the time and
place of the meeting are also well within its jurisdiction. If the authority anticipates an imminent threat
to public order or public tranquility, it would be free to pass desirable directions within the parameters
of reasonable restriction on the freedom of individual. However, provisions under s. 144 CrPC are
 371

attracted only in emergent situation. The emergent power is to be exercised for the purpose of
maintaining public order.98
Regarding the right to take out procession, the matter came before the Supreme Court in Shaikh Piru
Bux (dead) and others v. Kalandi Patil and others ,99 The Hindus of two villages in the State of Orissa
filed a suit for a declaration that they have a right to carry out religious and non-religious processions
with appropriate music along the village roads and other public highways of the locality including those
by the side of the defendant's mosques, viz., the Mohammedan villages of the two villages. The
defendant's main plea was that the right claimed by the plaintiffs could only be exercised so as not to
cause any interference with the exercise of the right of defendants. Following an earlier Privy Council
decision, the Supreme Court gave a declaration on the following form:- "That the plaintiffs have a right
to take out both religious and non-religious processions with the accompaniment of music on the
highways of two villages subject to the order that the local authorities regulating the traffic and subject
to Magistrate's direction under any law for the time being in force and right of the public".
The restriction must, of course, be substantively and procedurally reasonable. Thus, it must be limited
in its nature, duration and area of operation. An order prohibiting meetings "in any place of public
resort" in a city has, accordingly, been held to be too wide and unreasonable. 100On the other hand,
suitable anticipatory act ion to prevent imminent breach of the peace would be justified. 101Section 144
CrPC is intended to serve a public purpose and protect public order. The power vested in the
executive is to be invoked after the satisfaction of the authority that there is need for immediate
prevention or that speedy remedy is desirable and directions as contemplated are necessary to
protect the interest of others or to prevent danger to human life, health or safety or disturbance of
public tranquility or a riot or affray. These features must co-exist at a given point of time in order to
enable the authority concerned to pass appropriate orders. Section 144 enumerates the principles and
declares the situation where exercise of rights recognised by law, by one or few may conflict with other
rights of the public or tend to endanger public peace, tranquility and/or harmony. Orders passed under
s. 144 CrPC are attempted to secure larger public interest and purpose. Under s. 144 CrPC , a
complete procedural mechanism is provided for examining the need and merits of an order passed
under the above provision. Section 144 CrPC is a power to be exercised by a specified authority to
prevent disturbance of public order, tranquility and harmony by taking immediate steps when desirable
to take such preventive measures. Section 144 of the CrPC provides for a complete mechanism to
be followed by the Magistrate concerned and also specify the limitation of time till when such an order
may remain in force. An order passed under s. 144 CrPC has the following characteristics - (1) It is
an executive power vested in the officer empowered; (2) There must exist sufficient ground for
proceedings; (3) Immediate prevention or speedy remedy is desirable; and (4) An order in writing
should be passed stating the material facts and be served upon the person concerned. An order under
s.144 CrPc being an order which has a direct consequence in placing a restriction on the right to
freedom of expression and speech and right to assemble peacefully, should be an order in writing and
based upon material facts of the case. This would be the requirement of law for more than one
reason. Firstly, it is an order placing restriction upon fundamental right of a citizen and thus, may
adversely affect the interest or parties and secondly under the provisions of s. 144 of CrPC such an
order is revisable and is subject to judicial review and hence the order should be in writing stating the
reasons for imposing such restriction.102
While permitting holding of a meeting organised by groups or an individual, which is likely to disturb
public peace, tranquillity and orderliness, irrespective of the name, cover and methodology it may
assume and adopt, the administration has a duty to find out who the speakers and participants are
and also take into account previous instances and antecedents involving or concerning those persons.
If they feel that the presence or participation of any person in the meeting or congregation would be
objectionable, for some patent or latent reasons as well as the past track record of such happenings in
other places involving such participants, necessary prohibitory orders can be passed. Quick decisions
and swift as well as effective action necessitated in such cases may not justify or permit the authorities
to give prior opportunity or consideration at length of the pros and cons. The imminent need to
intervene instantly, having regard to the sensitivity and the perniciously perilous consequences, it may
result in, if not prevented forthwith, cannot be lost sight of. 103 Material facts, imminent threat and
requirement for immediate preventive steps should exist simultaneously for passing an order under s.
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144 CrPC . Mere change in the purpose or in the number of persons to be gathered simplicitor could
hardly be a ground to pass an order under the above provision. When there is provision for providing
aternate place for a meeting, when the gathering is more than expected, it is presumed that authorities
should not cancel the permission granted for meeting, but must provide for alternative place for the
meeting. When the gathering for meeting is much less than the capacity of the ground and the
gathering is peaceful, there is no necessity to pass an order under s. 144 CrPC . It is illegal. Before
passing an order under s.144 Cr.PC, the authority must be satisfied that the perception of threat is real
and not imaginary or a mere possibility. The provision that is contemplated under the provision is not
that of "mere likelihood or tendency".
In case of mere apprehension, without any material facts to indicate that the apprehension is imminent
and genuine, it may not be proper for the authorities to place restriction upon the rights of citizens,
right to freedom of speech and expression and freedom of assembly. 1 In that case, the Court also
gave guidelines as to the procedure to be followed before passing an order under s. 144 CrPC .
But, subject to this condition of reasonableness, a law requiring a licence for a meeting or a
procession cannot be struck down2 as a 'prior restraint' (as in the U.S.A.).3 But the reasonableness of
the restriction is to be tested by the terms of the law, and not by any 'practice' or 'convention' as to its
administration, as the Madras High Court supposed.4 The restriction will be unreasonable if, for
instance, it confers unguided discretion upon an authority to grant or refuse permission to hold a
meeting or procession.5
What is the nature of the right to take out a procession and is it a fundamental right? According to
eminent jurist H. M. SEERVAI, "In taking out a procession two fundamental rights are being exercised,
namely, to assemble peacefully and without arms and to move freely throughout the territory of India
and the rights are subject to the restriction under Arts. 19(3) and 19(5) respectively. If the procession
carries placards or shouts slogans, or halts from time to time and speeches are made, the right to
freedom of speech and expression is also being exercised and is subject to the restriction under Art.
19(2)".6 It has been held that Sections 126 of the Bengal Districts Act , 1836 which prohibits the
holding or attending any public meeting within any constituency on the date or dates of polling are
taking place for an election was a law relating to the law to the holding of a meeting passed in the
interest of public order.7 In Gopal Charan v. Daitory Nandy ,8 it was held that right to lead a procession
is neither an easement right nor it is a customary right, but a fundamental right. In an old case from
Travancore-Cochin (before the formation of State of Kerala), that restriction under Art.19(1)(b) can
amount to prohibition of the exercise of the right even when prohibition is strictly circumscribed in time
and operative area to suit the exigencies of definite threats to public order. 9
In Mecheneni Krishan Rao v. Commissioner of Police, Hyderabad ,10 permission to hold a public
meeting was refused on the ground that it would cause disturbance to public peace. The State also
apprehended that the organisation which sought permission is part of certain banned organisations,
which are trying to gain political advantage. The High Court, though held that refusal of permission
was not proper, did not exercise the jurisdiction to set aside the order for different reasons.
Meetings on the highway
U.K. India
Under common law, which is followed in the Commonwealth, including India, the primary purpose for
which a highway is supposed to be dedicated to the public is their right to pass and repass and to
make any other use which may be regarded as 'incidental to passage'.11 Every member of the public
has a right to pass along a highway with an occasional temporary stop which is incidental to the
purpose of his passage; but he has no right to occupy a highway for some stationary purpose or to
erect some permanent structure which causes obstruction to the traffic. 12
There is no freedom of assembly on a public highway in the UK. The Courts, however, in numerous
cases, have recognised a wide interpretation of the word "right" regarding the use of highway and
stated that a person has the right to pass and re-pass along the highway. The words "pass or re-pass"
include act ivities which are connected with, or incidental to the actual movement along the highway.
People assembling in the street for whatever reasons, do not generally come within this category. Any
 373

purpose, therefore, which is not used for passage, is potentially unlawful. Stopping in certain instances
would be considered to be within the area of act ivities incidental to the highway. For example,
stopping to wait for the traffic light to change before crossing the road would be permissible. Even
stopping to converse with someone would be within a person's right. However, if through stopping, an
obstruction is caused and as a result the pathway was even slightly blocked, this may well constitute
an offence. Even if there is no actual obstruction, it may, nevertheless amount to a public nuisance if
those assembled interfere with others conducting their normal business act ivities. 13 In Waite v. Tyler ,14
the defendant, a street performer, was entertaining the public in a pedestrian precinct which was some
40 feet wide. The public either stopped to see the act or merely side-stepped the defendant to avoid
the performance. He was arrested under the relevant provision of Highways Act 1980. Though he was
acquitted by trial Court, on appeal by the prosecution, the Court took a restricted meaning of the word
"passage" and concluded that what the defendant was doing was not incidental to lawful pursuit of the
highway i.e., passing or re-passing.15 In DPP v. Jones ,16 the Court referred to the right to peaceful
assembly on the highway.
In Hirst v. Chief Constable of West Yorkshire ,17 the Court held: "The question whether someone was
causing an obstruction without lawful excuse was to be answered by deciding whether the activity in
which the defendant was engaged was or was not a reasonable user of the highway. This would be for
the Magistrate to decide - a distribution of handbills could be a reasonable user. Under the Highways
Act 1980, it is an offence to obstruct the highway (s.137). It is not necessary that highway be
completely blocked or even that people are inconvenienced. The accused's intention is also
irrelevant.18
Any user which is incidental must be reasonable in extent.19 It would be an unreasonable user if it is
shown that the passage was obstructed.20 Such user would then become a public nuisance,21 which is
punishable as an offence.22
It is not open to the Police or any other authority to legalise the offence by inaction, for any length of
time.23
It would follow from the above that if a stationary meeting is held on a highway, for any purposes
whatever, it would be prima facie unlawful.24
A public meeting is a static assembly of people and therefore the members are not exercising their
right as individuals over the highway. "Stationary gatherings on highways are generally regarded as
trespass at common law against the person or body in whom the highway is vested, unless sanction
of the owner (usually called a local authority) is obtained. This is because the primary purpose to
which a highway is dedicated is passage and re-passage. And since a public procession involves
people marching down a highway, participation is prima facie lawful except perhaps while the
procession is assembling. But a procession may well constitute an unlawful obstruction of the highway
or a public nuisance.
The general rule that meetings on highways are trespasses is derived from private law. It gives "no
weight to public interest in freedom of expression and it seems ripe for reconsideration by Courts. In
any event, the principle of dedications to passage and re-passage is subject to exception
indeterminate in scope - ancillary activities such as holding private conversations and shopping are
not trespasses, nor are brief stoppage by motor cars, but what of disturbing leaflets or soliciting
answers from passers by to questionnaires? - and it would be sensible to replace the prevailing
concept by one which equates trespass with unreasonable user. "Seldom would be a large meeting in
a public thoroughfare be a reasonable use"?25
"A right of the public to use the highway is the right to pass and re-pass on their lawful occasions. If
the highway is used for any other purpose, save for such reasonable extensions as looking at the view
or into shop windows, that is a trespass against the owner, whether the private owner of adjoining land
or local highway authority is the owner of the surface. Under the Highways Act, 1959, wilful obstruction
of the highway is a summary offence. ... If the user of the highway causes an appreciable obstruction,
that is a public nuisance may be proceeded against by indictment. It is not necessary to prove that
anyone has actually been obstructed, nor is it a good defence that there was a ground for the
obstruction. Rather more latitude is allowed in public parks and gardens, which are intended for
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recreation and exercise. There is no common law right to hold public meetings on a common or the
foreshore in Hyde Park or in Trafalgar Square. On the other hand, although a public meeting in a
public place is not prima facie lawful and a right thereto cannot be acquired by prescription, such a
meeting is not necessarily unlawful. ... Obstruction of the highway may also be a breach of local law.
Further, local act s and byelaws sometimes require permission for holding of public meeting in certain
public places.
Regarding public processions, since the right to use the highway is for the purpose of passing and re-
passing, a public procession is prima facie lawful.
A public meeting on a highway is not necessarily unlawful. 26 The Highway is a separate category,
because members of the public have a right to pass and re-pass on their lawful occasions. It has been
accepted that this applied at common law with such incidental or ancillary extensions as looking at
shop windows and talking to one's friends. In Jones v. DPP ,27 Lord Irvine, Hutton and Clyde held that
today the right of passage should go beyond the rubric of incidental or ancillary to passage and re-
passage which placed unrealistic and unwarranted restrictions on commonplace day to day activities.
It was suggested that public's common law right to use the highway includes the right to reasonable,
peaceful, non-obstructive temporary assembly or demonstration which included "handing out leaflets,
collecting money for charity, singing carols, having a picnic or reading a book". Apart from causing a
breach of the peace or constituting an unlawful assembly or riot, a public procession may, however,
easily involve a public nuisance. A public nuisance will be caused if the user of the highway, though
reasonable from the point of view of those taking part in the procession, is not reasonable from the
point of view of the public. The question whether the user of the highway is reasonable depends on
the circumstances of the case, and may be affected by the numbers taking part in the procession. The
occasion, duration, place and hour must be considered and also whether the obstruction is trivial,
casual, temporary and without wrongful intent. The same principle will apply where the obstruction is
caused by the procession itself or by the onlookers. A band which marched through Belfast playing
Party airs, with the result that a crowd of several hundreds collected, was held as not liable for causing
a "material obstruction".28 In another case, a member of the Salvation Army who marched down the
street playing a Cornet, with the result that persons in the neighbourhood were disturbed by the noise
of the hostile crowd was held not liable for causing a breach of the peace, although in a case of this
kind, the result might be different if the charge were that of causing public nuisance. 29
Hence, Under the Indian Constitution, any action taken by the Police (including anticipatory act ion) to
regulate the holding of meetings on highways to prevent obstruction to the traffic would be a
'reasonable' restriction under Art. 19(3).30 The fact that under the Indian Constitution the right of
assembly is a guaranteed fundamental right would not, therefore confer any right to assemble on a
highway for holding a meeting for any purpose.31
A circular issued by the Collector or District Magistrate directing that all persons in charge of grounds,
meeting halls, Kalyana Mandapams and other public places or private place owners which are
convenient to conduct meetings to obtain advice from local Police Inspectors, S.D.Os. before sparing
such grounds for the purpose of holding public meeting is violative of Art. 19(1)(b). It was also held
that a circular is not "law" since it is not issued by Legislature. 32
Right of assembly on Government property
U.S.A.
(A) U.S.A.--A distinction has been made between public property thrown to the public generally, 33 and
Government property which is meant to be used for particular purposes, e.g., a jail.34
As regards the latter, it has been held that--
"The State, no less than a private owner of property, has the power over the property under its control
for the use for which it is lawfully dedicated ..... The United States Constitutiondoes not forbid a State
to control the use of its own property for its own lawful nondiscriminatory purpose." 35
In places which by long tradition or by Government fiat have been devoted to assembly and debate,
the right of the State to limit expressive activity are largely circumscribed. At one end of spectrum are
 375

streets and parks which have immemorially been held in trust for the use of the public and time out of
mind, have been used for the purpose of assembly, communicating thought between citizen and
discussing public question.36Another category of Government property consists which the State has
opened for use of public as a place for expressive act ivity. The Constitution forbids a State to enforce
certain exclusions from a forum generally open to the public, even if it was not required to create a
forum in the first place.37 Although a State is not required to indefinitely retain the open character of the
facility, as long as it does so, it is bound by the same standards as apply in a traditional public forum. A
public forum may be created for a limited purpose such as use by certain groups. (e.g., Widmar v.
Vincent ,38 or for the discussion of certain subjects e.g., school board business. Reasonable time,
place and manner regulations are permissible and a content based prohibition must be narrowly
drawn to effectuate a compelling State interest.
India
(B) India.--It has been held that there is no right to hold a meeting anywhere as the citizens
please,39e.g., on private property or even on Government property, in the absence of any law or usage
supporting such right.40
A right to hold public meetings on Government property (i.e., like a maidan) can be created by usage.41
Holding demonstration within the premises of an educational institution should be restricted,
particularly shouting of slogans with abuse language which may adversely affect the students.
However, peaceful demonstration beyond a reasonable distance could be permitted. 42 It was held
therein that even though the workers have a right to demonstrate peacefully, it should not be
disturbing the employer and reasonable distance should be kept, so that the rights of employer and
employees are properly balanced.
In Grayned v. Rockford ,43 few demonstrators marched on a public sidewalk about one hundred feet
from a public school to protest the schools social policies. The law prohibited any person, while on
public or private grounds adjacent to any buildings in which a school or any class thereof is in session
to make any noise or diversion which disturbs or tends to disturb the peace or good order of such
school. Some of the demonstration was convicted which was confirmed by the Supreme Court. It was
held that although "the public sidewalk adjacent to a school grounds may not be declared off limits for
expressive activity, such act ivity may be prohibited if it materially disrupts classwork or involves
substantial disorder or the invasion of rights of others.
In Frisky v. Shultz ,44 some people picketed a residence of a doctor who performed abortion. The
picketing was in a public street outside the residence, and was peaceful and orderly. A law also
proclaimed prohibiting residential picketing. Holding the law as valid, it was held that, "a public street
does not loose its status as a traditional public forum because it runs through a residential
neighbourhood. Law was declared as valid (1) it left "open ample alleviative channels of
communication and was "narrowly tailored to serve significant governmental interest. (2) Privacy of
the home is of the highest order in a free and civilised society especially when the demonstration or do
not seek to disseminate a message to the general public, but to introduce upon the targeted resident.
The Court considered that the law was "narrowly tailored because" the evil of targeted residential
picketing "the very presence of an unwelcome visitor at the home" is "created by the medium of
expression itself".
When does a lawful meeting become unlawful: the problem of the 'hostile audience'
U.S.A.
(A) U.S.A.--In the U.S.A. it has been held that a lawful assembly cannot be prohibited because certain
lawless elements are likely to oppose the assembly with violence and the administrative authorities
believe that the easiest way to maintain law and order is to prevent the meeting before the riot occurs.
The duty of the authorities should be to protect the lawful assembly when others unlawfully threaten
the exercise of the constitutional right.45 The right can be interfered, with only in case of a 'clear and
present danger' of disorder.46
But if the speaker passes the bounds of argument or persuasion and uses provocative language, at a
public place, and the audience shows signs of violence, the police may, if it has no other practical
 376

means of controlling the hostile mob, not only disperse the meeting but also arrest the speaker if he
refuses to stop after proper warning.47 The Court also said that ordinary murmurings and objections of
a hostile audience cannot be allowed to silence a speaker. Such action on the part of the Police may,
however, be justified only if a breach of the peace is imminent and cannot be prevented otherwise
than by stopping the speaker,48 and the Police cannot be used as an instrument for the suppression of
unpopular views.49 The Police cannot prevent a meeting in the absence of a clear and present danger
to public disorder and without making any attempt to protect those who were seeking to exercise their
lawful rights.50 In Terminiello v. Chicago ,51 the Court said: "A function of free speech under our system
of Government is to invite dispute. It may indeed best serve its high purpose when it includes a
condition of unrest, creates dissatisfaction with condition as they are or even stir people to anger.
Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have
profound unsettling effects as it presses for acceptance of protection against censorship or
punishment unless shown likely to produce clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance or unrest.
On the other hand, where there is no violation of any law and no threat of violence on the part of the
members of an assembly and police protection on the site is adequate to meet any foreseeable
possibility of disorder, they cannot be punished merely because there was a crowd and the members
of the assembly refuse to disperse after being so ordered by the police. 52
U.K.
(B) England.--In England, at common law, it was held that where there is nothing unlawful in the
purpose or conduct of the meeting, it does not become unlawful merely because others may be
excited by it to commit a breach of the peace.53The principle enunciated was that a man may not be
punished 'for act ing lawfully if he knows that his so doing may induce another man to act unlawfully'.
In such a case, "the unlawful must yield to the lawful." 54
In Jordan v. Burgoyne ,55 the Court said that the defendant must take his audience as he finds them,
and if those words to that audience or that part of the audience are likely to provoke a breach of
peace, then the speaker is guilty of an offence. In that case, the speaker used expression which was
provocative and beyond endurance which the audience did not relish.
The principle underlying the above statement is, "an act innocent in itself, done with innocent intent
and reasonably incidental to the performance of a duty, to the carrying on of business, to the
enjoyment of legitimate recreation, or generally to the exercise of a legal right, does not become
criminal because it may provoke persons to break the peace or otherwise to conduct themselves in an
illegal way".56
But, any person who at a lawful public meeting acts in a disorderly manner for the purpose of
preventing the transaction of the business for which the meeting was called for, or incites others so to
act is liable to be punished.57
But a lawful meeting may be dispersed on the ground that, because of something provocative in the
conduct of the members of the assembly, 58 others are likely to cause a disturbance of the peace, if it is
impossible for the authorities to preserve the peace otherwise than by dispersing the meeting. 59
If there is anything unlawful in the conduct of the persons conversing or addressing a meeting, and the
illegality is of a kind which naturally provokes opponents to a breach of the peace, the speakers at and
the members of the meeting may be held to cause the breach of the peace and the meeting itself may
thus become an unlawful meeting.60
After such an order members of the meeting may be guilty of obstruction of the police in the execution
of their duty, by refusing to disperse.61
A speaker is entitled to criticise his opponents, but he must not threaten, he must not be abusive and
he must not insult them. If he does so, the reasonableness or otherwise of the audience is no
consideration: "the speaker must take his audience as he finds them. 62
 377

Parliament has intervened to solve the controversy by enacting the Public Order Act, 1936 to give
more power to the Police to control public meetings which are likely to provoke a breach of the peace.
Section 3 of this Act has empowered the Police to postpone any meeting, under certain conditions.
Section 5 of the Act has, further, made it an offence to use 'threatening' abusive or insulting' words or
behaviour 'with intent to provoke a breach of the public peace or whereby a breach of the peace is
likely to be occasioned.' It has been held that the word 'insulting' has been used in its ordinary sense
and that it would not include any behaviour which merely gave rise to resentment or protest from other
people.63 LORD REID observed--
"Parliament had to solve the difficult question how far freedom of speech or behaviour must be limited
in the general public interest. It would have been going too far to prohibit all speech or conduct likely
to occasion a breach of the peace because determined opponents may not shrink from organising or
at least threatening a breach of the peace in order to silence a speaker whose views they detest". 64
The foregoing offence has been widened by the Public Order Act, 1986, by including the use of
insulting words for the purpose of inciting racial hatred by the assembly. 65
Eire
(C) Eire.--It has been held in several cases that even where an assembly is not engaged in any
unlawful act, the Police has got the right to disperse the meeting, if there is a reasonable
apprehension of breach of the peace if the meeting continued, 66 or to remove a person who is not
himself a wrong-doer, but who, if not removed, will become a subject of a breach of the peace. 67
On the other hand, in another case,68 the principle laid down in Beatty v. Gilbanks 69 was followed to
hold that--
"If danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the
presence of sufficient force to prevent that result, not the legal-condemnation of those who exercise
those rights."
Of course, if the meeting is held for the purpose of aiding an unlawful organisation, it would be an
offence under the Offences Against the State Act, 1939.
India
(D) India.--Section 129(1) of the Code of Criminal Procedure , 1973 authorises the Magistrate or the
Police to disperse assembly,--"if it is likely to cause a disturbance of the peace." Section 151 of the
Indian Penal Code , further, makes it an offence not to disperse after a lawful command to disperse
has been given. There is not much doubt that the Court is entitled to determine whether a command
was lawful or not. So, the question arises, when is a Magistrate or the Police lawfully entitled to
command to disperse a meeting which was held for a lawful purpose?
In India, in facts similar to those in Beatty v. Gilbanks ,70 it was held,71 that a lawful meeting may be
dispersed if it is likely to excite such opposition as may endanger the public peace. But this decision
cannot be supported with reference to the English decision in Beatty v. Gilbanks ,72 or the Irish cases.73
In one of these cases,74 it was observed that to interfere with the private rights of individuals on
anything short of the strongest necessity75 would make--"not the law of the land but the law of the mob
supreme."76
The principle has been clearly explained by an American writer77 as follows:
"The breach of the peace theory is peculiarly liable to abuse. It makes a man criminal simply because
his neighbours have no self-control, and cannot refrain from violence. The reduction ad absurdum of
this theory was the imprisonment of Joseph Palmer, one of Boron- son Alcott's fellow-settlers at
'Fruitlands', not because he was a Communist, but because he persisted in wearing such a long beard
that people kept mobbing him, until law and order were maintained by shutting him up". 78
Now, since Art. 19[(]3[)] of the Constitution of India authorises the State to impose only reasonable
restrictions on the freedom of assembly, in the interests of public order, it seems that the above
Bombay decision79 would not be good law under the Constitution, unless the danger to public order is
 378

imminent.80 The true view was expressed in a pre-Constitution case, 81 which has been approved by the
Supreme Court in Ghulam's case,82 namely, that where there is nothing unlawful in the conduct of a
meeting or procession, the Police cannot prevent those who are seeking to exercise their lawful rights,
simply because some other people do not like such meeting or procession:
"... the prejudices of particular sects ought not to influence the law."
In Babulal Parate v. State of Maharashtra ,83 the Court examined the validity of wide powers conferred
on the Magistrate under s. 144 CrPC . The Court was of the view that broadly speaking, it is intended
to be availed of for preventing disorder, obstruction and annoyance and is intended to secure public
weal. It further noticed that powers are exercisable by responsible Magistrate and these Magistrates
have to act judicially. Dealing with the argument that section confers very wide powers upon certain
Magistrate, and places very severe restrictions upon citizen's right to freedom of speech and
expression and to assemble peacefully and without arms, the Court emphasised the fact that these
powers can be exercised only in an emergency for the purpose of preventing obstruction, annoyance
and injury to any person lawfully employed, danger to human life, health and safety or the disturbance
of the public tranquility or a riot or an affray. These factors, the Court observed, condition the exercise
of powers. It would therefore be wrong to regard the power as being unlimited and untrammelled. The
Court further observed that since the powers conferred on the Magistrate can be used only to prevent
causing of obstruction, annoyance or injury to anyone, and no one has a right to cause such
obstruction, annoyance, injury, etc. and further the judgment has to be of a Magistrate as to whether in
the particular circumstances of a case, an order in exercise of these powers, should be made or not, it
could be legitimately assumed that the powers will be exercised legitimately and honestly.
Reiterating the principle declared in Babulal's case,84 the Supreme Court in a recent decision further
said that s. 144 CrPC is intended to serve a public purpose and protect public order. This power
vested in the executive is to be invoked after the satisfaction of the authority that there is need for
immediate prevention or that speedy remedy is desirable and directions as contemplated are
necessary to protect the interest of others or to prevent danger to human life, health or safety or
disturbance of public tranquility or a riot or affray. The Court said that power is to be exercised in
'emergent' situation. The Court defined, what is meant by 'emergency'. It said that the expression
"emergency", even if, understood in its common parlance, would mean an exigent situation, a serious,
unexpected and potential dangerous situation requiring immediate action. Such an emergent case
must exist for the purpose of passing a protective or preventive order. Court termed the exercise of
power under s. 144 CrPC an emergency protective order" or "an emergency preventive order". In
either of these cases, the emergency must exist and emergency situation must be reflected from the
records which were before the authority concerned which passed the order under s. 144 CrPC .
Court also reiterated that s. 144 CrPC is constitutionally valid, and it provides all procedural
safeguards for exercise of power.85
In re. C.N. Annadaurai & others,86 a Division Bench of Madras High Court upheld the constitutional
validity of Sections 41 of the Madras City Police Act , 1888. The said section empowered the
Commissioner of Police to prohibit public meetings, if he should consider such prohibition is necessary
for the preservation of public peace or public safety. Although no limit is fixed for an order under s. 41,
in the section itself, as a matter of convention, time-limit of fourteen days had actually been observed
while passing the order under s. 41. The Court was of view that any order extending beyond fifteen
days at a time would be invalidated by it and emphasised that desirability of incorporating a provision
for such time-limit in the section itself.87
Carrying arms
U.S.A.
(A) U.S.A.--It might be supposed that the Second Amendment to the United States Constitution, which
guarantees the "right of the people to keep and bear arms", also offers the people an unrestricted right
to bear arms in a public meeting or assembly. But it has been held that the Article only means that "a
well-regulated militia being necessary ............", the militia 88may not be disarmed by a Federal Act . It
does not pre vent the States from controlling the bearing of arms for private use, in the exercise of the
"Police Power".89 The Court said that in the absence of any evidence tending to show that possession
 379

or use of a firearm has some reasonable relationship to the preservation of efficiency of a well
regulated militia, we cannot say that second amendment guarantees the right to keep and bear such
an instrument. The Court further said: "It is well settled that the Second Amendment does not create
an individual right. Since Miller,90 the lower federal Courts have uniformly held that Second
Amendment preserves a collective, rather than an individual right". Thus, the State may altogether
prohibit the carrying or selling of arms by private citizens, 91 unless Congress enacts that private
possession of arms is necessary to ensure an efficient militia for the nation. 92 However, in a later
judgment, the US Court of Appeal for the Fifth Circuit in US v. Emerson ,93 held: "We find that the
history of Second Amendment reinforces the plain meaning of its text, namely, that it protects
individual Americans in their right to keep and bear arms whether or not they are a member of a select
militia or performing active military service or training. The State may also control and regulate all
organisations drilling and parading as military or quasi-military bodies, without authority under the
militia laws of the United States.94 Similarly, it may prohibit the carrying of concealed weapons. 95 The
right to bear arms, though specifically guaranteed by the American Constitution, would not thus
include a right to parade the street or other public places with arms or to assemble as military
organisation.96
The Second Amendment to American Constitution reads: "A well regulated militia being necessary to
the security of a free State, the right of the people to keep and bear arms shall not be infringed". The
question whether national and State Governments may regulate or prohibit private possession of fire
arms stirs strong emotion. Arrayed on one side are those who, with JUSTICE JOSEPH STORY (1811-
1845) regard to right to keep and bear arms as "due palladium of the liberties of a republic" and view
restriction on gun ownership as a serious infringement on liberty. 97 On the other hand, are those who
favour control, insisting that widespread private gun ownership promotes crime and threatens public
safety. Surprisingly, given the continuing debate between advocates of gun control and defenders of
the right to bear arms, relatively few cases have been decided through interpretation of the key
constitutional provision breaking the question.
India
(B) India.--Under the existing law in India, there is no general right to bear arms, and the possession
of arms by individuals is subject to the restrictions imposed by the Arms Act , 1959, replacing the Act
of 1878. The mere carrying of arms to an assembly which is lawful, by a person who is licensed to
possess the arms is not an offence, but if the assembly becomes unlawful, the possession of a deadly
weapon by a member of such unlawful assembly aggravates his offence (s. 144, Indian Penal Code ).
The Constitution maintains the existing law by denying any general right to carry arms, and goes
further than the existing law by providing that a citizen has no constitutional right to carry arms to any
assembly, whether it is lawful or unlawful. So, unless he is an official on duty, a licensed owner of arms
has no guaranteed constitutional right to bear arms, while joining an assembly.
Right of a Sikh to carry Kirpan
Since Art. 19(1)(b) lays down that the fundamental right of assembly is subject to the condition that the
assembly is unarmed, the question arises as to whether the foregoing proposition is subject to any
exception in the case of the Sikhs who have got a fundamental right to carry kirpans, under Art. 25,
Expl. I.
It is to be noted that Art. 19(1)(b) applies to 'all citizens', without having any exception in the case of
the Sikhs. Explanation I to Art. 25, on the other hand, has no reference to Art. 19, but is a mere
explanation to what is meant by the 'profession' of religion within the meaning of Cl. (1) of Art. 25.
Harmonising the two provisions, the following conclusions may be deduced:

48a)  Any citizen other than a Sikh is not entitled to carry a kirpan even on a
religious occasion.
50b)  A Sikh would be entitled to carry a kirpan as a part of his religion on all
occasions except while joining a public assembly.
 380

32c)  The right of a Sikh to carry a kirpan is subject to the overall limitation in the
opening words--'subject to public order' which means that the right conferred by Expl. I
to Art. 25 is not absolute, but may be restricted in the interest of public order. 98
In this context, it is necessary to understand what is meant by the word 'kirpan' in Expl. I to Art. 25,
inasmuch as some Sikh Political leaders have recently been asserting their constitutional right to carry
a full-size sword (as used in a battle), taking advantage of the fact that the word 'kirpan' is not defined
in the Constitution.
For the literal meaning of the word 'kripan', we have to turn to Sanskrit, because the Sanskrit word
'kripan' is uttered as kirpan in the Gurumukhi dialect. According to Monier Williams (Sanskrit-English
Dictionary), it includes any cutter,--from a dagger or knife to a sword, and (Wilson is quoted to mean) a
sacrificial knife'.
The word has thus a narrow as well as a wider connotation. The Constitution has referred to the
profession of the Sikh religion in Expl. I to Art. 25. We have, therefore, to advert to the Sikh religion to
ascertain whether the Constitution-makers meant a dagger or a sword in Expl. I. In an old Lahore
case, relied on by the Allahabad High Court,99 it was observed that the 'size or shape' of a kirpan' has
not been prescribed by the Sikh religion'. This assumption, however, is not correct.
The word 'kirpan' is not to be found in the teachings of Guru Nanak, the founder of the Sikh religion. It
was introduced by Guru Govind Singh (the 10th Guru) who sought to organise the Sikhs as a militant
band called the Khalsa. While forming the initial Khalsa, the Guru enunciated the rules of conduct by
which they were to be guided and this speech, by which he addressed the mass who were baptised
by a ceremony, is translated by Dr. Gopal Singh in his book.,thus-- 100
"From now on, you have become casteless...You will wear your hair unshorn, like the ancient sages
as a pledge of dedication to the Guru, a comb to keep it clean, a steel bracelet, to denote the
universality of God, an underwear to denote chastity and a steel dagger for your defence...".101
The five articles which a Sikh was thus asked to have on his body were--Kesh, Kangha, Kara, Kaccha
and Kirpan. It will be seen that none of the four preceding objects were meant for war, but as emblems
for discipline and as a uniform by which members of the Khalsa were to be identified. They were
emblems of dedication, cleanliness, faith and continence. Then comes the Kirpan, for 'self-defence'.
Once it is acknowledged that the fine objects were meant to be an emblem, token or badge, and for
constant wear, the kirpan is more likely to refer to a dagger or 'short sword' rather than a full size battle
sword which was not within the easy reach102 of each of the 20,000 men (of all castes and strata) who
were addressed and baptised by Guru Govind at the relevant meeting.
It is also noteworthy that foreign scholars who have worked on the subject have understood the kirpan
as a dagger or short sword, to be worn as an emblem or badge.
To quote from Ninian Smart--103
"Each Sikh man has to wear five badges of his belonging, the five K's as they are called: to keep his
hair and beard uncut (Kais): to carry to comb (Kangha) to keep his hair tidy; to wear Kaccha or knee-
length breeches, then used by soldiers; to wear a bangle (Kara) on his wrist as a sign of loyalty to the
Guru; and to carry a short sword".104
In Ellwood's 'Many Peoples, Many Faiths,'105 the relevant words are--
"Though of the different caste background, they drank amrit, sacred nectar, together, and were to a
wear five tokens; uncut hair cover by a turban, a comb, a steel bracelet, a special pair of undershorts,
and a Kirpan or a two-edged dagger".
It is this steel-dagger (shorter than a sword) which may be seen on the body of every Sikh (fastened to
his waistbelt) not only in the portraits of the past 106 down to the British regime, but even today on the
body of countless Sikhs in the streets.
In this background, it would be logical to suppose that the word 'kirpan' meant the 'steel-dagger' or
knife which was being carried by every common man belonging to the Sikh community, as a part of
 381

his religion107 at the time when the Constitution was made; and that is why no definition of the term was
considered to be necessary by the framers of the Constitution. 108 But see Nanak Chand v. State of
Delhi ,109 wherein it was held that kirpan is 'not' knife.
'Arms'
There being no definition of 'arms' in the Constitution, the Dictionary meaning may be useful.
According to Webster, it means--
'any instrument used in fighting; weapon'.
A 'weapon', again, means 'An instrument or device of any kind used for fighting'.
Reference may also be used to the definition in s. 2(c) of the Arms Act , 1959, because what is
punishable under the law cannot constitute a fundamental right unless that law itself may be struck
down as unreasonable.
That definition is--
"'Arms' means articles of any description designed or adapted as weapons for offences or defence,
and includes fire-arms, sharp-edged and other deadly weapons, and parts of any machinery for
manufacturing arms, but does not include articles designed soley for domestic or agricultural uses
such as a lathi or an ordinary walking-stick and weapons incapable of being used otherwise than as
toys or of being converted into serviceable weapons". A 'sword' is 'arm' within the meaning of s. 2(1)
(c) of Arms Act .110'Kirpan' is not a knife.111
Under that Act, possession of firearms, without licence is an offence (s. 3). The possession of arms
other than fire-arms, without licence, may be punishable, if it is carried in an area which is notified to
this effect, by an order of the Central Government, under s. 4. (Under Peace Preservation Act (Ireland)
Act, 1881, 'arms' include any cannon, gun, revolver, pistol and any description of Fire Arms, also any
sword, cutlass, pike and bayonet).
The Ananda Margi Case
The question whether a trisul or trident is capable of being used as an 'weapon of offence' has come
up in connection with the claim of the Ananda Margis to conduct a procession carrying human skulls,
daggers and tridents, as in the tandava dance of Lord Siva.112 In an order under s. 144 of the Cr. P.C.,
prohibiting such procession, the Commissioner of Police included 'trident' as an 'article which may be
used as weapon of offence'. The Petitioners challenged the constitutionality of this order as violative of
their fundamental right to practise the Tandava dance as a part of their religion. The Calcutta High
Court rejected the Petition under Art. 226 with the observation that the carrying of daggers and skulls
would engender fear and annoyance in the minds of members of the public. Tridents do not appear to
have been specifically mentioned.
Subsequently, the Commissioner of Police made a fresh order under s. 144, Cr. P.C., with the same
restraints. The Ananda Margis made an application to him for permission to take out a procession
accompanied with the tandava dance, which was rejected by the Commissioner. The Margis now
brought the matter to the Supreme Court, by a Petition under Art. 32. 1
The Supreme Court2 dismissed the Petition on the ground that the Petitioner had failed to establish
that the performance of the tandava dance in a public place or procession was an essential part of the
religion of Ananda Margis. The question whether tridents could be labelled as 'arms' within the
meaning of Art. 19(1)(b) of the Constitution was not adverted to. 3
The Petitioner thereupon presented a review Petition before the Supreme Court for reviewing the
aforesaid judgment of the Supreme Court which had been passed on 20-10-1983. Somewhat
strikingly, the Supreme Court did not either allow or reject the review petition, but by an order of 1-12-
1983.4'disposed of' the Petition with the direction that--
"..... these cases should appropriately be examined by the High Court keeping in view what has been
said by this Court in AIR SC 51....".
 382

In pursuance of the above direction, the Petitioner moved a Single judge of the Calcutta High Court by
a fresh Petition under Art. 226 of the Constitution and the judgment of that The Court is reported in
A.I.R. 1990 Cal. 36.5 The learned judge allowed this Petition, cancelling the ban imposed by the Police
under s. 144, Cr. P.C., and allowing the Margis to conduct a procession on their religious occasions,
accompanied by the tandava dance, on several grounds,6viz.--

49a)  That the tandava dance is an essential part of the religion of the Ananda
Margis who constituted a religious denomination under Art. 26 of the Constitution (paras.
20, 29).7
51b)  Hence, the performance of such dance in processions on the public streets,
on religious occasions, cannot be prohibited by the Police (para. 36). 8
33c)  A small knife below 10.16 centimetre or a trisul (trident) does not constitute
'arms', and cannot therefore be prohibited under the Arms Act (para. 35). 9
An appeal from the aforesaid judgment of the Single judge 10 has been dismissed by a Division Bench
by an unreported judgment dated 8-11-90 and the Ananda Margis have been allowed to conduct their
procession with the tandava dance, subject to their undertaking that they maintain peace during such
procession. The Division Bench did not deal with the question whether tridents could be labelled as
'arms' but observed that the carrying of tridents in a public procession per se could not affect public
order.
The finding of the Single judge that a trident does not fall within the category of arms under the Arms
Act , therefore, stands.
The decision of the learned single judge which was confirmed by Division Bench was set aside by the
Supreme Court in Commissioner of Police v. Acharya Jagadishwarananda Avadhutha .11 Hon'ble
Supreme Court did not consider whether "trident" was an arm since it held that tandawa dance is not a
ritual or part of Ananda Marga (Majority View). JUSTICE LAKSHMANAN who wrote a dissenting
judgment, held that "tandava" dance is part of religious ritual among Ananda Margis and use of
"trident" is part of the same. Learned judge also took note of the fact that certain communities like
Sikhs, Muslims and Bharat Sevashram Sanghs during procession are even permitted to use of
'swords' and such user will not affect public peace or tranquillity.
One vital point, however, seems to have been missed in these judgments, viz., that, under Sections 4
of the Arms Act (see ante), mere possession of arms other than fire-arms, without licence, is
punishable only if it is carried in an area unless that area is notified to this effect, by the Central
Government. There was no such notification in the instant case. Hence, even if a trident be held to be
a weapon for offence or defence, the carrying of such weapon in a religious procession in a non-
notified area was not an offence and could not, therefore, be prohibited by the Police.
Use of loudspeakers
There is a consensus of opinion in different countries that neither the freedom of assembly nor that of
expression would enable a person to cause a nuisance 12 to others or intrude into their privacy13 by the
use of a loudspeaker or other similar instruments creating excessive noise. 14 The reason is that it is
universally acknowledged that in the exercise of a fundamental right, an individual must respect the
constitutional or legal rights of other persons.15 In Koracs v. Cooper ,16 it was observed that city streets
are recognised as a normal place for the exchange of ideas. But this does not mean that the freedom
is beyond control. We think that it is a permissible exercise of legislative discretion to bar sound
trucks, amplified to a loud and raucous volume, from the public ways of municipalities. On the
business streets, such distraction would be dangerous to traffic at all hours useful for dissemination of
information and in the residential thoroughfares the quiet and tranquility is so desirable for city
dwellers would otherwise be at the mercy of advocates of particular religious, social or political
persuasions. That more people more easily and cheaply reached by sound trucks is not enough to call
forth constitutional protection for those charged with public welfare reasonably think is a nuisance
when easy means or publicity are open.
 383

In Saia v. New York ,17 it was observed that modern devices for amplifying the range and volume of
voice afford too easy opportunities for aural aggression. If uncontrolled, the result is intrusion into
cherished privacy. Surely there is not a constitutional right to force unwilling people to listen. In
Grayned v. Rockford ,18 a State ordinance prohibited any person while on public or private grounds
adjacent to any building in which a school or any class thereof in session to make a noise or diversion
which disturbs or tends to disturb the peace or good order of such school. In that case, the Court held
that anti-noise ordinance is narrowly tailored to further State's compelling interest in having an
undisrupted school session conducive to student learning and the regulation is not violative of First &
Fourteenth Amendment.
In Ward v. Rock Against Racism ,19 the Court upheld a city regulation requiring use of city-provided
sound system and technicians for the concerts in park. The principal justification for the regulation was
city's desire to control noise levels to avoid undue intrusion into other areas of the park and adjacent
residential areas. The Court said that Government has a substantial interest in protecting its citizens
from unwelcome noise.
Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the
help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen.
Nobody can be compelled to listen and nobody can claim that he has a right to make his voice
trespass into the ears or mind of others. Nobody can indulge in aural aggression. If anyone increases
his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose
unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking
is violating the rights of others to a peaceful, comfortable and pollution free life guaranteed by Art. 21.
Article 19(1)(a) cannot be passed with service for defeating the fundamental right guaranteed by Art.
21.20
In Rabin Mukherjee v. State of W.B .,21 the user of air horns was prohibited. If religious practice runs
counter to public order, morality or health or a policy of social welfare upon which the State has
embarked, then the religious practice must give way before the good of the people of the State as a
whole.22 In that case, The Court found no justifiable reason to grant permission to use loudspeakers
during Navarathri festival. In Birangana Religious Society v. State ,23 the Court prohibited use of
loudspeaker between 9 P.M. and 7 A.M.24 But, in New GIDC Housing Association v. State of Gujarat ,25
the Court dismissed a petition filed by a housing colony complaining about the noise pollution caused
by an iron or steel factory. It was held that the Housing Colony is not entitled to the discretionary relief
since colony came into existence long after the factory was established, i.e., the residents who "came
to the nuisance" cannot be heard to complain. In Free Legal Aid v. National Capital Territory ,26 it was
held that "House of God should be kept peaceful and noise free.
A peal of bells may amount to extreme nuisance to a person who lives in a very few feet or yards of
the location from where the sound is coming out, but it may not be so if the distance is reasonable". 27
It would not, therefore, be unconstitutional for the State to provide that no person should use a
loudspeaker and similar noisy instruments either at his home 28 or at a public meeting,29 without the
previous permission of the Policy authority, who have the power to regulate the time, place and
manner of their use.
At the same time, since a loudspeaker is a medium of expression, a total prohibition thereof
regardless of the time, place and manner of its use would be unconstitutional. 30
Existing Laws.--(i) Chap VIII of the Indian Penal Code 31 lays down the conditions when an assembly
becomes "unlawful". A mere assemblage of men in any number cannot be illegal even under the
existing law. But an assembly of 5 or more persons becomes an unlawful assembly under s. 141 of
the Indian Penal Code , if the common object of the persons composing the assembly is any of the
following:

50a)  By means of criminal force or show of criminal force--

10. to overawe the Government, or any public servant in the exercise of his
lawful powers; (ii) to take possession of any property or to deprive any person of
 384

the enjoyment of his incorporea1 rights, or to enforce any right or supposed right;
(iii) to compel any person to do what he is not legally bound to do or to omit what
he is legally entitled to do.

52b)  To resist the execution of any law or legal process.

34c)  To commit any mischief or criminal tresspass or other offence.
Section does not declare the mere assemblage of men however large, illegal. What it
requires is that in order to be illegal, it must be inspired by an illegal object. The Indian
Constitution does not guarantee any general right to bear arms. The existing Arms Act
which imposes restriction on possession of arms has been upheld. 32
An assembly of less than 5 persons may also be an offence if they, by fighting in a public
place, disturb the public peace. This offence is called 'affray'. In all the above cases, the
assembly is not 'peaceable' and so there would be no guarantee in its favour, also under
the Constitution.
10. Any assembly, meeting or procession, otherwise lawful, may be restrained
by the Magistrate under s. 144,Criminal Procedure Code, if there is a "risk of
obstruction, annoyance or injury to any person lawfully employed, or danger to
human life, health or safety or a disturbance of the public tranquillity or a riot or an
affray."33
In State of Bihar v. K.K. Misra ,34 the Supreme Court held that an unreasonable
restriction was imposed upon freedom of speech and expression, assembly and
movement by s. 144(6) of CrPC which authorised the Government to extend
the life of an order passed by Magistrate under s. 144 (1) beyond two months, if it
is necessary for preventing danger to human life, health, safety or a likelihood of
riot or affray. This power was not to be exercised judicially and was therefore
open to be exercised arbitrarily. There was no provision for the party to make a
representation nor was the order of a temporary nature. This clause has since
been amended.
Similarly it is imperative that if any individual or group of persons, by their action
or caustic and inflammatory speech are bent upon sowing seeds of mutual
hatred, and their proposed act ivities are likely to create disharmony and disturb
the equilibrium, sacrificing public peace and tranquility, strong action and more so
preventive act ion are essentially and vitally needed to be taken. Any speech or
action which would result in ostracisation of communal harmony would destroy all
those high values which the Constitution aims at. Therefore, whenever the
authorities concerned in charge of law and order find that a person's speech or
act ion are likely to trigger communal antagonism and hatred resulting in
fissiparous tendencies gaining a foothold, undermining and affecting communal
harmony, prohibitory orders need necessarily to be passed, to effectively avert
such untoward happenings. The legislative intention to preserve public peace and
tranquility without lapse of time, acting emergently, if warranted, giving thereby
paramount importance to social needs by even overriding temporarily private
rights keeping in view public interest is patently in-built in s. 144 CrPC . While
permitting holding a meeting organised by groups or an individual which is likely
to disturb public peace, tranquility and orderliness, irrespective of the name, cover
and methodology, it may assume and adopt, the administration has a duty to find
out who the speakers and particulars are and also to take into account previous
instances and the antecedents involving or concerning those persons. If the
authorities feel that the presence or participation of any person in the meeting or
congregation would be objectionable, for some patent or latent reasons as well as
the past track record of such happenings in other places involving such
participants, necessary prohibitory orders can be passed. Quick decisions and
swift as well as effective action necessitated in such cases may not justify or
 385

permit the authorities to give prior opportunity or consideration at length of the

pros and cons. The imminent need to intervene instantly, having regard to the
sensitivity and perniciously perilous consequences it may result in if not prevented
forthwith, cannot be lost sight of. In such cases, which concern the maintenance
of law and order, the Courts should not normally interfere since administrative
authorities are the best persons to assess and handle the situation and their
decision may involve some element of subjectivity. But the Courts may intervene
in cases where the power exercised mala fide or when a concrete case of abuse
of power is made out or when the power is exercised for extraneous
consideration.35
7. Section 107 of the Criminal Procedure Code empowers a Magistrate to
obtain security for keeping the peace from any person who is "likely to Commit a
breach of the peace," even though nothing has yet been act ually committed in
that direction.36 It is not necessary that the person bound over should have
actually committed the breach of the peace. Section 111 of CrPC provides that
the Magistrate acting under s.107 has to make an order in writing setting forth the
substance of information received, the amount of the bond, the term for which it is
to be in force and the number, character and the class of sureties (if any)
required. The restriction imposed by corresponding section of the old CrPC has
been held reasonable and in the interest of public order. 37
The Police officers also have power under Sections 30 of Police Act , 1861 to
issue licences defining the condition on which assembly or processions are to
take place so as to avert any disturbance of public peace and disperse any
assembly or procession conducting itself contrary to the conditions of the licence.
They are also bound to maintain order in public streets in the neighbourhood of
place of worship during the time of worship.
Section 129 of CrPC authorises a Magistrate or a police officer to disperse any
unlawful assembly and also any assembly "likely to cause a disturbance to public
peace". Section 152 of IPC makes it an offence for an assembly not to disperse
after a lawful command to do so has been given a Magistrate or police officer.
5. The Prevention of Seditious Meetings Act (X of 1911) has for its object the
prevention of public meetings likely to promote sedition or to cause a disturbance
of public tranquillity. It empowers the Provincial Government to declare the whole
or any part of a State a 'proclaimed area'. On such declaration, the 'District
Magistrate or Commissioner of Police', is invested with the power to--"prohibit any
public meeting in such proclaimed area, if, in his opinion, such meeting is likely to
promote sedition or disaffection or to cause a disturbance of the public
tranquillity". Further, no public meeting 'for the furtherance or discussion of any
subject likely to cause disturbance or public excitement' shall be held in such area
without written notice to the District Magistrate or Commissioner of Police. 'Public
meeting' is defined in this Act as a "meeting which is open to the public or any
class or portion of the public. A meeting may be a public meeting notwithstanding
that it is held in a private place and notwithstanding that admission thereto may
have been restricted by ticket or otherwise." Any public meeting which has been
prohibited under this Act is deemed to be an 'unlawful assembly' within the
meaning of the Indian Penal Code and Criminal Procedure Code.
4. The Police Act , 1861, authorises a Police Officer to direct the conduct of
and prescribe the route and time for all assemblies and processions along the
public roads and also to require the members to apply for a previous licence.
2. There are State Act s, which impose further restrictions. Thus Sections 37
of the Bombay Police Act , 1951 provides--
"The Commissioner and the District Magistrate in areas under their respective
charges may, by order in writing prohibit any assembly or procession whenever
 386

and for so long as it considers such prohibition to be necessary for the

preservation of the public order ....".
Section 36 of the same Act provides--
"In areas under their respective charges the Commissioner...may...give all such
orders either orally or in writing as may be necessary to ..
Prevent obstructions on the occasion of all processions and assemblies and in
the neighbourhood of all places of worship during the time of worship and in all
cases when any street or public place or place of public resort may be thronged
or liable to be obstructed...".
See also Sections 41 , Madras City Police Act , 1888; 38s. 45 of the Mysore
Police Act , 1908.39
2. Some of the Provincial Public Safety Act s, e.g., s. 9(2) of the Bihar Public
Order Act, 1949, contain similar provisions.40

Legislation by Parliament.--

8)  Sections 126 of the Bengal Districts Act , 1836, prohibits public meetings
on the election day, within any polling area, s. 127 of the same Act provides for the
prevention of disturbances at a public meeting of a political character held in any
constituency between the date of issue of a notification under the Act calling upon the
constituency to elect a member or members and the date on which such election is held.
10)  Section 144 of the Criminal Procedure Code, 1973, provides for the issue of
temporary orders to prevent imminent breach of the peace.
Constitutionality of the Prevention of Seditious Meetings Act , 1911
In the Author's opinion, some of the provisions of this Act are liable to be challenged as
unconstitutional.

51a)  Section 4 requires the holders of the public meeting to give a notice to the
specified authority before holding it and the penalty for not giving such notice is provided
for in s. 6(1). Briefly speaking, the notice is to be given for the holding of a meeting if it
relates to a subject which is "likely to cause disturbance or public excitement." Now, both
the expressions "disturbance" and "public excitement" standing by themselves are quite
vague.
53b)  As regards the expression "disturbance to persons then present" it may
include a mere mental disturbance, having a connotation analogous to the other
condition, namely, "excitement". The first question that arises is whether a person can be
penalised for causing mental disturbance or excitement to the persons present at a
meeting. It is to be noted that either in s. 4 or in s. 7 the expressions are not qualified by
anything relating to public disorder or breach of public tranquillity. That is why, it is
legitimate to hold that the words in question are wide enough to refer to mere, mental
conditions.
The Supreme Court has held41 that a person cannot be convicted (as having undermined
public order) for merely causing "annoyance" to the public or some section thereof,
unless there is likelihood of breach of the peace. In other words, merely causing mental
irritation or affecting the feelings of the audience does not make any utterances
punishable in the interests of public order.42 This view is in accord with American
decisions.43
If that be so, it appears that ss. 4 and 6(1) of the Act are liable to be challenged on the
ground that the restrictions imposed by them are not 'in the interests of public order' and
are, accordingly, outside the protection of Cls. (2) and (3) of Art. 19.
 387

35c)  In s. 5, the expressions, namely, "sedition" and "disaffection", will now have
to be interpreted in the narrower sense as indicated by the Supreme Court in Kedar
Nath's case44.
Reasonableness of restrictions

10.  Substantive aspect

A restriction which is in excess of the requirement to meet the social evil in question
would be unreasonable. Thus,
21. Section 144 of the CrPC which authorises the making of temporary orders
for the prohibition of meetings or processions to prevent an imminent breach of
the peace, constitutes a reasonable restriction upon this freedom. 45 The
requirement of existence of sufficient ground and the need for immediate
prevention or speedy remedy is of prime significance. The perception of the
officer recording the desired/contemplated satisfaction has to be reasonable, least
invasive and bona fide. The restraint has to be reasonable and must be minimal.
Such restraint should not be allowed to exceed the constraints of the particular
situation either in nature or in duration.46
But the same protection is not available to s. 144 (6) of CrPC which was
declared unconstitutional.47
The legislative intention to preserve public peace and tranquility without lapse of
time, act ing emergently, if warranted, giving thereby paramount importance to
social needs by even overriding temporarily private rights keeping in view public
interest is patently in-built in s. 144 CrPC ... Quick decisions and swift as well as
effective action necessitated in such cases may not justify or permit the
authorities to give prior opportunity or consideration at length of the pros and
cons. The imminent need to intervene instantly, having regard to the sensitivity
and perniciously perilous consequences, it may result in if not prevented forthwith,
cannot be lost sight of.48
21. But--
Rule 4-A of the Bihar Government Servants Conduct Rules, 1956, in so far as it
prohibits Government servants from participating "in any demonstration ... with
any matter pertaining to his conditions of service", has been struck down as an
unreasonable restriction on the ground that it is wide enough to include within its
prohibition even demonstrations through assemblies or processions which may
be peaceful and orderly and may not, accordingly, lead to a breach of public
order.49
It was held that a Government servant does not by accepting Government service
lose his fundamental right under Art. 19. A demonstration is a visible manifestation
of the feelings and sentiments of an individual or a group. It is thus a
communication of ideas to others and is in effect a form of speech and
expression. The Court declared that the rule prohibiting "any kind of
demonstration" as bad as it banned even innocent demonstration. But in so far as
strike by Government servants was concerned, the rule was held valid.
Similar view was also held in O. K. Ghosh v. E. X. Joseph .50 The Court
emphasised that Government servants are subject to the rule of discipline which
are intended to maintain discipline among them and to lead to an efficient
discharge of their duties. See also Radhey Shyam Sharma v. Post Master
General, Central Circle, Nagpur ,51 wherein it was held, "acting in furtherance of
the strike" whether taken in the form of speeches or demonstration would make
no difference and in either case there can be no violation of Art. 19(1)(a) or (b).
Where an Ordinance prohibits illegal strike, and does not restrict freedom of
 388

speech or expression or peaceful demonstration, without arms, the validity of

such legislation cannot be questioned.
In O.K. Ghosh v. E.X. Joseph ,52 it was held that a person who participates in the
demonstration in connection with the strike cannot be punished for having
participated in the strike. Demonstration and strike are different.
In A.P. Civil Liberties Committee v. Collector & Dt. Magistrate, Guntur ,53 it was
held that the protection of rights regarding freedom of speech and expression,
assemble peacefully without arms and to form association or unions could be
restricted by a legislation in a qualified manner, but there being no legislation
under Arts.19(2), (3) & (4) the protection given to a citizen with regard to freedom
of speech and expression, to assemble peacefully without arms and to form
association could not be restricted by circular orders of the Collector and District
Magistrate. Appropriate act ion could always be taken by the authority against
concerned persons as and when there was any violation of IPC or for any act of
illegality or for violation of any law. But as long as an organisation is not banned,
the right in giving speeches in public meetings could not be curtailed. If by public
meetings held by an organisation, they were found propagating the extreme
ideology and illegally criticising policies of Government and diverting the youth
from the main stream to extremism it was open to the authorities to take act ion
against the concerned person. Accordingly, the circular orders issued by
authorities in directing all the in-charge of grounds, meeting halls, Kalyana
mandapam and other public places or private place owners which were
convenient to conduct meetings to obtain advice from the local police inspector,
Sub-Divisional Police Officers concerned, before sparing such ground for the
purpose of conducting public meetings was illegal and unconstitutional and
violative of Art.19(1)(a), (b), (c) of Constitution of India .
On the other hand--
It is competent for the employer, whether private or public,--to prohibit meetings to
be held within the premises of the employer which is not open to the use of the
general public.54
12. Section 129 of the CrPC , 1973, empowers a Magistrate or a Police officer
of superior rank to command any unlawful assembly or any assembly of 5 or
more persons likely to cause a disturbance of the public peace, to disperse. An
unlawful assembly, as defined in s. 141 of the I.P.C., is also relatable to 'public'
order.55

14I.  Procedural aspect

A Rule which confers unguided discretion upon an authority to grant or refuse
permission to hold public meeting in a public street or other public place, 56 would
constitute an unreasonable restriction.
The provision in s. 144 CrPC itself provides an in-built restriction as to when the power
to be exercised. It also provides in-built safeguards to control and check any
unwarranted exercise or abuse in any given case.57
On the other hand,--
Throwing the burden of proof upon the accused, subject to adequate safeguards, cannot
be said to constitute an unreasonable restriction as regards a law to suppress the
mischief of gambling.58
Right of Procession
 389

Since the right of procession has certain special incidents because it is a mobile assembly 59 while a
meeting is stationery, and in the case of a religious assembly in India there is an additional support in
the Constitution, a separate treatment of the right of procession is given below.
In Sada Gopalachariar v. A. Rama Rao ,60 it was held that right to conduct religious procession through
public streets was a right inherent in every person provided it did not thereby invade the right of
property enjoyed by others or causes public nuisance or interferes with ordinary use of the street by
the public and subject to direction or prohibition for the prevention of obstruction to thoroughfares or
breaches of peace. In another case, it was held: "No doubt a highway is primarily intended for the
individuals passing and re-passing along it in pursuance of their ordinary allocation. But in every
country and especially in India, highways have from time immemorial been used for the passing and
re-passing of procession as well as of individuals and there is nothing illegal in a procession or
assembly engaging in worship while passing along a highway, any more than in an individual doing
so.61 In India, there is a right to conduct a religious procession with its appropriate observances
through a public street so that it does not interfere with the ordinary use of the street by the public and
subject to lawful direction by the Magistrate. A civil suit for declaration lies against those who interfere
with a religious process or its appropriate observation. 62 The above decision of Privy Council was
followed by Supreme Court in Shaikh Piru Bux v. Kalandi Pati Rao ,63 All the decisions deal with
assembly and procession on the same basis and it is described that procession is but an assembly in
motion. Procession may use the streets for passage on lawful occasions and for lawful object,
provided the user is reasonable and there is no nuisance. Not all processions are lawful. They may fall
within the group of offence known as riot, unlawful assembly and disturbing the peace or they may
constitute a public nuisance.64
Procession is the action of a body of persons going or marching along in orderly succession in a
formal and ceremonial way, especially as a religious ceremony or on a festival occasion. Where an
image was merely carried down the ghat by four or five persons as carriers and immersed in a river
and there was nothing to be described as a body of persons going or marching along in orderly
succession in a formal or ceremonial way, it is not correct to say that it is a procession. Some element
of an organised march according to a system is necessary in order to constitute a procession. Even
two persons can form a procession. When two persons, one of them carrying a flag and the other
shouting slogans, march together in a line along a public road for the purpose of a demonstration, it is
a procession.65
A procession is an assembly in motion, and consequently each member of the procession is
exercising his right of passage over the road. A public meeting is a static assembly, and its members
are not making use of the road for a passage over it. If Police Act s deal both with procession and
public meetings, it is because processions on highways and public meetings on highways involve
problems of regulating the use of the highways as well as problems of law and order. Further, the right
of freedom of speech and expression is an important ingredient of a public meeting and a law
regulating that aspect of public meetings can impose restrictions permitted under Art. 19(2) in
"addition to restrictions permitted by Art. 19(3) and 19(5)". 66
A public meeting is not one of the uses for which the highway is dedicated; it is a nuisance if it
obstructs the road. It is no defence to show that sufficient available space is left if a part of the
highway act ually used by the passengers is obstructed. But, and this is most important, in the case of
a procession, the test is whether in all the circumstances such a procession is a reasonable user of
the highway and not merely whether it causes an obstruction. No person has a right to use a highway
for holding public meeting eventhough no nuisance is caused. Under law, a person can use a highway
for the purpose for which it is dedicated, i.e., to pass and re-pass and any other unlicensed use
however desirable it may be from other standpoint is legally wrongful. 67
U.K.
(A) England.--Since every person has the right to pass and repass a highway, a number of persons
have the same right collectively, in a procession. But a procession may become unlawful not only
when it causes a breach of the peace or constitutes an unlawful assembly (e.g., when the members
carry arms)68 but also when it becomes a public nuisance. In that case, in the dissenting judgment,
 390

LORD DENNING MR held that use of the highway for the picket was not unreasonable and did not
constitute a nuisance at common law. It was further observed that picketing other than for trade
dispute was lawful so long as it is done merely to obtain or communicate the information or peaceful
persuasion.
A procession may cause a public nuisance when its user of the highway is not reasonable, from the
point of view of the general public who have a similar right to pass and repass along the same
highway.69 So, there is a public nuisance if it causes an appreciable 70 obstruction to the traffic,71 having
regard to the number of people joining the procession 72 or of its onlookers73 and other circumstances. A
public procession may easily involve the common law offence of public nuisance. A public nuisance
will be caused if the user of the highway although reasonable from the point of view of those taking
part in the procession, is not reasonable from the point of view of the public. This question depends on
circumstances of the case and hour, and also whether any obstruction is trivial, casual, temporary and
without wrongful intent. The tort of nuisance may also apply. Unreasonable interference with the rights
of others to use the highway could be a species of tort of private nuisance which may give rise to an
action for damages or the grant of injunction.74
The right to freedom of association and assembly is protected by Art.11 of the European Convention
on Human Rights and in England by domestic law Human Rights Act, 1998. But it should not be
overlooked that these rights are subject to important qualification which permit extensive regulation.
Limits may also have to be imposed to respect the rights and interest of others and sometimes must
ultimately have the responsibility for enforcing these limits. Under the Public Processions (Northern
Ireland) Act, 1998, a Parade Commission has been established to regulate the circumstances in which
public procession may go ahead. The Commission is designed to be representative of the community
in North Ireland and has a wide range of responsibilities which include the duty to promote greater
understanding by the general public of issues concerning public procession as well as the duty to
promote the mediation of dispute about public procession. It must also issue a code of conduct
relating to public procession and ultimately has the power to impose condition on the conduct of public
procession having regard to a number of statutory guidelines. Decision of Commission is subject to
judicial review. But in Britain, there is no comparable body.
There is no right to pickets to stop vehicles and compel the drivers and occupants to listen what they
say.75 When an organiser had directed some persons to walk in a particular way in a highway near a
factory entrance, it amounts to an obstruction of the highway and not protected by any Statute. 76
In other words, a procession becomes a public nuisance when, in the absence of a lawful excuse, it
obstructs or causes inconvenience to the public in the exercise of rights common to all citizens, viz., to
pass along that highways.77 But it would not be a public nuisance unless the processionists have made
an unreasonable or excessive use of the highway,78 with reckless disregard, of the rights of others.79
A number of restrictions have been imposed by statute upon the foregoing common law right to carry
on a procession:
Under the Public Order Act, 1936, a chief officer of Police has the power to give directions for
preserving public order and to prohibit a procession from entering any specified public place, if he has
a reasonable ground for apprehension that such procession may cause a serious public disorder.
The Act further empowers the Chief Constable, if he has reasonable ground for apprehending a
breach of the peace, to give directions imposing such condition as appear to him necessary for the
preservation of public order on the organisers or other persons taking part in the procession, including
power to prescribe the route, to prohibit entry to any specified place and to restrict the display of flags
or emblems. Further, a local authority may on the application of the Chief Constable and with the
consent of the Home Secretary make an order prohibiting all processions or any specified class of
processions in the whole or any part of the authority's area for not more than three months which
could be extended with Home Secretary's consent for a further period of three months. The same Act
also makes an offence to wear in any public place or any public meeting a uniform "signifying
association with any political organisation or the promotion of any political purpose".
 391

A procession is prima facie legal and that it differs from "the collection of a stationary crowd", but that
a procession may become a nuisance if the right is exercised unreasonably or with reckless disregard
to the rights of others".80 Highways are no doubt dedicated prima facie for the purpose of passage; but
things are done upon them by everybody which are recognised as being rightly done, and as
constituting a reasonable and usual mode of using a highway as such". 81
The powers of the Police under the Act of 1936, have been enlarged by the Public Order Act, 1986, as
follows82 --

52a)  Written notice in advance must be given by the organisers of a public

procession, to the Police.
54b)  In granting permission to the proposed procession, the Police authority may
impose such conditions as appear to him necessary, if he reasonably believes that (i) the
procession may result in serious public disorder, serious damage to property or serious
disruption to the life of the community; or (ii) the purpose of the organisers is the
intimidation of others with a view to compelling them not to do an act they have a right to
do, or to do an act they have a right not to do.
36c)  Where the Police officer reasonably believes that the foregoing powers
would be insufficient to prevent the holding of the procession from resulting in serious
public disorder, he may apply to the local Council for an order prohibiting such
procession for a period up to three months.
Similar powers in Scotland are in the Civic Government (Scotland) Act, 1982 as amended by the Local
Government etc. (Scotland) Act,1994. By this Act, the organisers of a public procession must notify
(atleast seven days in advance both the police and local authority in whose area the procession is to
be held. After consulting the Chief Constable, the local authority may then prohibit the holding of
procession or impose condition upon it. These measures are in addition to Public Order Act, 1986
which extends to Scotland. It thus appears that a local authority in Scotland could ban a specific
march, whereas in England and Wales, the ban must be on the holding of all public processions or of
any class of public procession specified in the order. A right of appeal is provided under the Scotland
law where the authorities prohibit or impose conditions on limited grounds. Under Public Order Act,
1986 as applied in Britain & Wales, a judicial review is available on imposing condition by an
organiser.
In Lowdens v. Keaveney ,83Lowdens' band was playing party tunes through the streets of Belfast. The
band was followed by a large crowd. A constable warned against playing through a particular street as
an obstruction would be caused. The band persisted in playing through that street and the crowd
followed, with the result that free passage of foot passengers and vehicles were temporarily
interrupted. Lowden was convicted. Quashing the conviction, the court said: "The Magistrate did not,
nor do they at all indicate that they considered the question whether the use of the street by a moving
body in the way it was used as unreasonable one. There may be considerable obstruction and yet the
use of the street may be quite reasonable. As to playing a party tune, this is not unlawful and as to
warning of the police, no doubt, prudent and well disposed citizen will promptly accede to the
suggestions of police, but the warning of the police could not merely of itself render the user of
highway unreasonable. It was for the Magistrate to determine the question of reasonableness or
unreasonableness of the use of the highway - this essential element they omitted and accordingly the
conviction must be quashed".
Very wide discretionary powers have thus been conferred on the Police to control a procession to
prevent public disorder even where the situation is due to the unreasonable attitude of the
oppositionists of a procession. The redeeming feature is that while the orders of the Police, being
discretionary, the Court had little scope for intervention, under the opening for judicial review under
R.S.C.O. 53, as explained by the House of Lords, 84 the Court will have now a wider scope for
reviewing the Police order under the heads, e.g., of reasonable belief', 'necessary'.
Under the Highways Act, 1959, wilful obstruction of a highway without authority or lawful excuse is an
offence, for which the Police may arrest without warrant.
 392

U.S.A.
(B) In U.S.A.--In Cox v. New Hampshire ,85 a group of Jehovah's witnesses were convicted for violating
a State law prohibiting any "parade or procession" upon a public street without first obtaining a permit.
It was held that "as regulations of the use of the streets for parades and processions is a traditional
exercise of control by local Government, the question in a particular case is whether that control is
exerted so as to deny or unwarrantedly abridge the right of assembly and the opportunities for the
communication of thought immemorially associated with resort to public places. While upholding the
law, it was held licensing authority to take into account only "consideration of time", place and manner
so as to conserve public convenience. Such a limited permit requirement had the obvious advantage
of giving the public authorities notice in advance so as to afford opportunity for proper policing and in
fixing the time and place to prevent confusion by over-lapping parades or processions to secure
convenient use of the streets by other travellers and to minimise the risk of disorder".
But a discretion on the authority to base the fee for procession or parade permit as the expected
expense of preserving the public peace was held invalid. The authorities discretion was so great that it
was predictable that the quantum of licence fee might well turn on the "listener's reaction to speech"
which is not a content, neutral basis for regulation. It was held that speech cannot be financially
burdened any more than it can be punished or banned, simply because it might offend a hostile mob. 86
(C) India
I. Prior to the Constitution
India
1. Prior to the Constitution
Prior to the Constitution, the right of procession had to be drawn from the ordinary law, as in
England.87
The following is a statement of the pre-Constitution law relating to processions in India--

53a)  There is no right of procession as such. It is a corollary from the individual

right of user of a highway.88 Since the use of a highway is for the purpose of passing and
repassing, any number of men may pass together in a procession so long as the
corresponding right of others is not substantially affected, that is, so long as there is not
a material obstruction of traffic.89 It has got nothing to do with custom90 or religion.91
55b)  The right of procession follows from the ordinary right of each individual to
pass and repass along the highway. But when the right of user of the highway is made
collectively by an assembly, it may, in certain circumstances, turn into an unlawful
assembly, or cause a public nuisance if it interferes with the right of other individuals to
use the highway.
The limitations of the right to carry public processions, therefore, are: (i) The law of
public nuisance.92(ii) The greater advantage of the public to restrict the right. Thus, the
right of a section of Mahomedans to carry procession of tazias along the streets may be
limited if it is not possible to carry the tazias without removing the wires of a public utility
Electric Company.93(iii) Such directions as Magistrates may lawfully give in order to
prevent obstructions of the thoroughfare or breaches of the public peace. 94
37c)  People of all sects are entitled to conduct religious processions through
public streets, subject only to the above limitations. Persons of a rival sect or religion
cannot claim as of right that the functions of a public procession should cease as it
passes places of worship belonging to the former.95 The prejudices of particular sects
ought not to influence the law.96 Nor can the Magistrate restrain lawful processions
simply because he thinks that he would be powerless against the oppositionists. 97 The
authorities cannot abdicate and confess impotence before the law-breakers.98
15d)  Customary usage of a highway might also give rise to a right of procession, 99
provided the ingredients of custom, e.g., user from time immemorial was established.100
 393

II. Under the Constitution

Under the Constitution, the right to conduct a procession along the highway is founded on three
distinct sources, which should be kept separate in order to avoid confusion arising out of the mass of
case-law bearing on the subject.
These are--

54a)  Common law.

56b)  Article 19(1)(b) of the Constitution.
38c)  In the case of a religious procession, an additional source, viz., Art. 25 of the
Constitution.
A. Common law
As stated above, prior to the commencement of the Constitution, the only source of the right to take
out a procession was the English common law right to pass along a highway which belonged to every
individual, and all pre-Constitution judicial decisions101 relating to religious processions were made on
this sole foundation, with its incidents and limitations.
In relying on these decisions,102 therefore, it must always to be remembered that at the time of these
decisions, there was no Constitutional guarantee as in Arts. 19(1)(b), 25 to rely upon.
After the commencement of the Constitution, it is no longer necessary, in this matter, to rely on
English common law because self-contained provisions as to non-religious processions are to be
found in Art. 19(1)(b) of the Constitution, while religious processions are specifically protected by Art.
25(1). Nevertheless, in the absence of any inconsistency with the constitutional provisions, the
common law principles may be used as explanatory. In case of conflict, however, the Constitution shall
prevail.
Of course, Art. 19(1)(b) does not mention the right to procession but guarantees the freedom of
assembly. The Supreme Court has, however, held103 that the former right is included in the
fundamental right of assembly.
It was held that citizens have the right to take out religious or non-religious processions on public
street, but the right is subject to the order of local authority regulating traffic and the direction of local
authority.104 In Babulal Parate v. State of Maharashtra ,105 it was held that the right of citizen to take out
procession or to hold demonstration or public meetings originates from the freedom to assemble
peacefully and without arms and the right to move freely anywhere in the territory of India.
Though the right to take out a procession is a fundamental right, it is subject to reasonable restrictions.
Imposition of ban on demonstrations and marches on certain parts of busy road as working days is in
public interest to protect the fundamental right of majority of citizens to move freely and carrying on
their profession etc. and hence valid.1
After the commencement of the Constitution, most of the cases relating to processions have been
decided with reference to Art. 19(1)(b), guaranteeing to every citizen "the right to assembly
peaceably".
But in some others, the right to take out religious processions has been founded also on the right to
'practise' religion, which has been guaranteed by Art.25(1). This proposition has since been supported
by the Supreme Court in Gulam's case.2
It would, therefore, be convenient to discuss the law under the two heads--Arts. 19(1)(b) and 25(1) of
the Constitution.
B. Article 19(1)(b)
In Babulal's Case3, the Supreme Court clearly observed that, "the right of citizens to take out
processions...flows from the right in Art. 19(1)(b) to assembly peaceably". Thus, the pre-Constitution
common law right has been transformed into a fundamental right by the Constitution.
 394

In Vishwa Hindu Parishad v. The Collector and Dt. Magistrate ,4 the Court said: "The citizens of this
country have a fundamental right to hold public meetings at public places. It is no doubt true that
under Art.19(3), the said right can be regulated by the State in the interest of sovereignty and integrity
or public order. It is therefore clear that right to hold public meeting cannot be denied, but can only be
regulated on the ground of public order or in the interest of sovereignty and integrity of India. Hence,
permission to hold public meeting in a public place cannot be denied on the ground that the proposed
meeting is a religious meeting.5
Hence, the contrary observation of the Orissa High Court, 6 following the observations of the pre-
Constitution Privy Council decisions in Manzur7 and Martin8 cases (above), that "there is no
fundamental right to take any procession along a highway", is clearly wrong. In Martin & Co. v. Syeed
Faiyaz Hussain ,9 the Shia Mohammedans of the township of Amroha in UP sought to prevent Martin
& Co. who had obtained permission under Electricity Act to put up electricity wires of a particular
height, on the ground that it interfered with their right to carry Tazias of a higher height. This claim was
however not accepted by Privy Council on the ground that the plaintiff's right as members of public to
take part in the religious procession in the street was subject to the right of other members of public to
pass and re-pass along the same street and also the powers of the appropriate authorities of
controlling traffic and preventing disturbances. As the plaintiffs' rights were those of the public, these
rights could be lawfully abridged. In the case under consideration, the wires were at a height of twenty
feet under the statutory provisions of Electricity Act and clearly therefore was given the power to
abridge the public right to carry through the streets objects of greater height. It followed, therefore, that
the plaintiffs have had their right modified in favour of other rights which the authorities acting under
the authority of a statute considered to be of greater advantage to the public. Their Lordships of Privy
Council were careful to emphasise that no question arose of ignoring or deprecating the respect due
to the well established religious beliefs and observations of plaintiffs. This is because, their Lordships
were of the view like any other religious or secular body or any of the members of the public their
rights over the streets were subject to existing law which may abridge them.
A. The pre-Constitution Privy Council decisions,10 as stated earlier, were decided on the common law
footing,--that even where there is no religious practice to give additional support to take out a,
procession along a public highway, the exercise of such a right is prima facie lawful, following the right
of every single individual to use the highway for the purpose of passing and repassing.
Pre-Constitution decisions:Manzur v. Zaman
Curiously, in the case of Manzur11 the persons aggrieved belonged to the Shia sect, of the Muslim
community, and the cause of act ion related to their right to take out a religious procession,--the
objectors being another sect of the Muslims themselves, viz., the Sunnis. The Privy Council held that
there was no independent right as regards religious processions but that--
"persons of whatever sect are entitled to conduct religious processions through public streets", and
that the rights of such processionists--
"are no more and no less than the rights of any member of the public". 12
Hence, the rights of such religious processionists could be abridged where the rights of any other
member of the public could be curbed, so that

55a)  they must not interfere with the ordinary use of such streets by the public;
and
57b)  they must be subject to such directions as the Magistrates might lawfully
give to prevent obstructions of the thoroughfare or breaches of the public peace.
Subject to such reservations, the Sunnis had no right to object to a Shia religious
processions on the ground that their "wailing" ceremony 'disturbed' Sunni worship in the
abutting mosque.13
39c)  There was, however, no protection against legislative encroachment on the
right of procession.
 395

Post-Constitution decision:Babulal v. State of Maharashtra

B. In the post-Constitution case of Babulal v. State of Maharashtra 14 it was the right of public meeting
which was immediately in question but the right of public procession was also involved. The Supreme
Court held that both rights, in relation to a public place, flowed "from right in Art. 19(1)(b) to assemble
peaceably and without arms".15
Effects of declaring right of procession to be a fundamental right
Once the conclusion is arrived at16 that the right to conduct a peaceable procession along the highway
is now a 'fundamental' right guaranteed by the Constitution. The right to lead a procession is neither
an easement nor a customary right, but a fundamental right. 17 The following results will follow--

56a)  Any law or State action which interferes with this fundamental right shall be
unconstitutional and void, unless it can be justified, under Cl. (3) of Art. 19 as--(i) a
'reasonable restriction'; (ii) in the interest of 'public order' (the other ground of restriction,
viz., 'sovereignty and integrity of India' is not directly relevant to the instant case); (iii) the
relation between the restriction and public order is rational or proximate, and not
remote.18 The following propositions emerge from the judgment in Himatlal's case
(supra): (1) On facts Art.19(1)(a) is not attracted; (2) In India, a citizen had before the
Constitution a right to hold meetings on public streets subject to the control of the
appropriate authority regarding the time and place of meeting and subject to
consideration of public order. This conclusion follows from the Privy Council decision
Manzur Hassan v. Muhammed Zaman ,19 which was followed by the Supreme Court in
Sheik Paru Bux v. Kalani Pati ,20. Although these decisions related to processions, Indian
statute notably the Police Act s deal with assemblies and processions on the same
basis, for, as pointed out by BENSON, J., procession is but an assembly in motion.21
Consequently rules made under Bombay Police Act which required prior permission for
holding meetings were not ultra viress. 33(1) of the Act ; (3) Since, the right to hold
public meetings flows from Art.19(1)(b) and (d), the State cannot impose unreasonable
restrictions upon it. Article 19(1)(b) read with Art.13 protects the citizens from State
action and these articles have nothing to do with the right to assemble on private streets
or property without the consent of the owners or occupiers of private property; (4)
Sections 33(1) (a) of Bombay Police Act enables the Commissioner to make rules to
regulate assemblies and processions; without such rules, in crowded public streets it
would be impossible for citizens to exercise their rights. Not only s. 33(1) (a) not ultra
vires but it can be said to be enacted in aid of the rights under Art.19(1)(a) and 19 (1) (d);
(5) But Rule 7 of the Bombay Police Act was declared void since it did not give any
guidance to the officer concerned as to the circumstances under which he could refuse
permission to hold public meeting.
Learned author H.M. SEERVAI in his book22, has commented on the decision thus:- (1)
The judgment did not consider the right which persons in India have over public
highways; as a consequence, it has wrongly equated the right to hold public meetings on
highways with right to take out procession along the highways; (2) The judgment of Privy
Council in Manzur Hassan v. Muhammed Zaman ,23 which was approved and applied in
Sheik Paru Bux v. Kalandi Pati ,24 lends no support for equating the right to hold public
meetings on highway with the right to take out procession; (3) The proposition that the
right to public meeting on highways does not involve freedom of speech and expression
is untenable; consequently it failed to consider the kind of restriction which could be
imposed upon that right under Art.19(2); (4) The proposition that rule 7 is not valid is
contrary to numerous Supreme Court decisions.
Learned author further says that the right to take out procession or holding public meting
on highways necessarily depends upon the rights which persons in India have over
highways. In Sagir Ahmed v. State of UP ,25 the Supreme Court held that the English law
of highways had been applied all along in India and both English and Indian Law, the
ordinary user of a highway is for the purpose, to pass and re-pass. A highway could also
 396

be used for vehicles to pass and re-pass. Since every person has a right to move over a
highway, movement is the characteristic feature of the right of persons over the highway.
Since a public meeting is a static assembly of people, it is clear that members of a
meeting are not exercising the right as an individual over the highway. Learned author
relies on the statement of PROF. DE SMITH,26 which reads thus: "Stationary gatherings
on highways are generally regarded as trespass at common law against the person or
body in whom the highway is vested; unless sanction of the owner (usually the local
authority). This is because the primary purpose to which a highway is dedicated is
passage and re-passage. And since public procession involves people marching down a
highway, participation is prima facie lawful except perhaps while procession is
assembling. But a procession may well constitute an unlawful obstruction of a highway
or a public nuisance.
The general rule that meeting on highway is trespass is derived from private law. It gives
no weight to public interest in the freedom of expression and it seems ripe for
reconsideration by the court. In any event, the principle of dedication to passage and re-
passage is subject to exception indeterminate in scope - ancillary act ivities such as
holding private conversation and shopping are not trespasses nor are brief stoppages by
motor cars; but what of distributing leaflets or soliciting answers from passersby to
questionnaires - and it would be sensible to replace the prevailing concept by one which
equates trespass with unreasonable user. Seldom would a large meeting in a public
thoroughfare be reasonable use".
Sections 26 of the Travancore-Cochin Police Act (Now State of Kerala) authorised the
District Magistrate to prohibit a procession or public assembly for a period of fifteen days
on the ground of preservation of public peace or safety. The validity of the provision was
challenged in Mathai v. State of Travancore , on the ground that the provision authorises
prohibition of a procession or public assembly whereas Art. 19(3) permits only restriction
or regulation. The Court upheld the validity. It was held that "reasonable restriction" may
amount to total prohibition of the exercise of the right in the exigencies of the threat
involved and the area where such prohibition is involved". 27
In State v. Mangala ,28it was held under s. 14 of the U.P. Opium Smoking Act, which
prohibits an assembly for the purpose of smoking opium is not violative of Art. 19(1)(b). It
is submitted that when no person has a right to possess or smoke opium, there is no
scope for invoking fundamental right under Art. 19(1)(b).
58b)  Under the Constitution, a restriction upon the right to take out a procession
will be upheld only if it is reasonable. Thus, an order banning all processions within a
Municipal area, without any limitation would be struck down as unreasonable, 29 but a,
temporary order for the prevention of an imminent breach of the peace, under s. 144 of
the Criminal Procedure Code30 or under Sections 37(3) of the Bombay Police Act ,
1951,31 will be upheld provided it is limited as to its duration 32 and area of operation. It
has already been seen (See Art. 19(2)-(6)) that, where the imposition of the restriction is
justified by emergent circumstances, it cannot be impugned on the ground of want of
notice or hearing before issue of the order.33 An order, made in the interests of public
order, directing that no procession other than marriage or funeral processions shall be
held without the permission of the District Magistrate (during a temporary period) has
also been upheld on similar grounds.34 In such cases, a large discretion has to be given
to the authority responsible for maintaining law and order, and there is a sufficient
safeguard against abuse of the power if there is some provision for an administrative 35 or
judicial review.36
The Court will be slow to interfere with the order passed by the authority, and
interference is possible only if it is satisfied that the decision to pass an order under s.
144 CrPC was passed by the concerned official is patently illegal, and without
jurisdiction or with ulterior motive and an extraneous consideration of political
victimisation by those in power and on similar grounds.37 Since the powers conferred on
 397

the Magistrate can be only used to prevent causing of obstruction, annoyance or injury
to anyone and no one has a right to cause such obstruction, annoyance or injury and
further the judgment has to be of a Magistrate as to whether in the particular
circumstances of a case an order in exercise of these powers should be made or not, it
could legitimately be assumed that powers will be exercised legitimately and honestly.
The mere possibility of abuse of powers is not a ground to strike down the provision. 38 In
Ramlila Maidan Incident case, the court found that the people assembled in Maidan who
were sleeping did not pose any danger and there was no reasonable ground to pass a
prohibitory power and, therefore, it was illegal. Act ion was directed to be taken against
concerned police officials.
It is to be noted in this context that an ex parte order39 under sub-s. (2) of s. 144 of the
CrPC , 1973, is subject to review under sub-s. (5) of that section, and s. 397. 40
40c)  Another conclusion which follows from the recognition of the right of public
procession as a fundamental right is that there is no need to find it on any customary
right.41
Of course (as will be seen hereafter), where a community has been conducting a procession along a
particular right from time immemorial, it would acquire a legal right to take that traditional route.
III. Article 25: Special incidents of a religious procession
Fundamental right to practise religion
The pre-Constitution decisions did not have before them Art. 25(1) of the Constitution which
guarantees the right 'to freely practise' religion. The Constitution of the Republic has buttressed the
right to take out a religious procession, by offering it a second foothold, under Art. 25. The relevance
of this article in relation to religious processions can be explained with reference to the following
propositions evolved by the Supreme Court:

57a)  That the word 'practise' may include all rituals and ceremonies which are
considered by the followers of a religion as integral parts of that religion was early
established by several Supreme Court decisions.42
"Essential part of a religion means the core beliefs upon which a religion is founded. "Essential
practice" means those practices that are fundamental to follow a religious belief. It is upon the
cornerstone of essential parts or practices that the superstructure of a religion is built, without which a
religion will be no religion. Test to determine whether a part or practice is essential to a religion is to
find out whether the nature of the religion will be changed without that part or practice. If the taking
away of that part or practice could result in a fundamental change in the character of that religion or in
its belief, then such part could be treated as an essential or integral part. There cannot be additions or
subtractions to such part because it is the very essence, of that religion and alteration will change its
fundamental character. It is such permanent essential parts which are protected by the Constitution.
Nobody can say that an essential part or practice of one's religion has changed from a particular date
or by an event. Such alterable parts or practices are not definitely, not the 'core' of a religion
whereupon the belief is based and the religion is founded upon. They could only be treated as mere
embellishments to the essential part or practices". It was held that Ananda Marg Order was founded in
1955, Tandava dance or procession was introduced only in 1966 and hence the dance or procession
is not an integral part of the Ananda Margi Order. 43
In the dissenting judgment (rendered by LAKSHMANAN, J.), it was held that Tandava dance or
procession is an integral part of the Order when the religious leader has so stated, whatever may be
the time when such a direction was given.

59b)  In India, religious processions have a separate footing than processions for
other purposes.44 In a full bench decision of the Bombay High Court in Chandu Sajan
Patel v. Nayatalchand Panamchand ,45 it was held that there cannot be a distinction in
principle between the right of conducting a religious procession or conducting a
 398

nonreligious procession. The right depends upon the lawful and reasonable use of a
highway. It was argued before the High Court that the decision of Privy Council in
Manzur Hassan v. Mohammed Zaman ,46 had confined its decision to religious
procession because of peculiar condition prevailing in India. The argument was however
not accepted by the Court which held that conducting a non-religious procession could
not be held a less lawful or reasonable user of the highway than conducting a religious
procession. The court observed that a citizen or a community or a section of the
community has an inherent right to conduct a non-religious procession through a public
road. In as much as he has such an inherent right, he has also the right to file a
declaratory suit without proof of special damage. The court was, however, careful to
clarify that any such inherent right in the citizen is subject to the rights of other citizens
also to use the highway in a lawful manner and also subject to any order issued by the
State for the purpose of preventing breaches of public peace and for maintaining law
and order.
In Saiyid Manzur Hassan v. Saiyid Muhammed Zaman ,47 the Privy Council was called upon to decide
authoritatively on the right of public to use the roads in India for the purpose of religious procession
practising their religious observances on the highway. Privy Council after taking into consideration
various conflicting decisions of High Court, answered in the affirmative holding that such a right can be
enforced through a declaratory suit. It was further held that persons of whatever sect are entitled to
conduct religious procession through public street, but in such manner that they did not interfere with
the ordinary use of such streets by the public. Such right can be exercised also subject to such
direction as the Magistrate may lawfully give to prevent obstruction of the thoroughfare or breaches of
public peace. Further one sect cannot claim exclusive use of the public highway for their worship. In
Shaik Piru Bux v. Kalandi Pati ,48 the Court declared that the plaintiffs have a right to take out both
religious and non-religious processions with the accompaniment of music on the highways subject to
the order of local authorities regarding traffic and subject to the Magistrate's direction under any law
for the time being in force and right of the public.
Ghulam's Case

41c)  Next comes the decision of the Supreme Court in Ghulam's case49, which
relates to various religious practices, including procession, and the Court has founded its
decision solely upon Arts. 25-26, without any reference to Art. 19 (para. 32). 50
In this case51, the freedom under Art. 25(1) has been taken to include all 'rites, practices, observances,
ceremonies and functions' as claimed by the Petitioners (para. 34), and one of these practices was a
'horse procession' (para. 2(b)).52
If the right to take out a religious procession stems both from Art. 19(1)(b) and Art. 25, the question
arises as to whether the ambit of protection under Art. 19(1)(b) is enlarged under Art. 25, or in other
words, in what respect and to what extent a religious procession is entitled to a larger protection than
a non-religious one.
U.K.
In England, religious processions do not stand on any different footing than nonreligious processions,
because the foundation of the right, in both cases, is the ordinary right of an individual to pass along
the highway, subject to similar rights of other individuals to make similar use of the public highway.
India
But, as pointed out by SIKRI, C.J., in Himmat Lal's case.53 the law in India has proceeded on different
lines with regard to religious processions.
Of course, there are cases, such as Chandu v. Nyahalchand 54, where the privileges of a religious
procession to use music has been extended even to non-religious processions. But those decisions
did not have to deal with Art. 25 nor did they have the advantage of the lessons of Himmat Lal's case55
or of Ghulam56. Such cases should therefore be kept apart, in the context of Art. 25.
 399

Reason behind a separate footing of a religious procession

The reason why religious processions had a separate or independent footing, in India, was explained
by an English JUDGE BENSON, J in Vijiaraghava's case,57 in these words which were approved by
the Supreme Court in Himmat Lal's case (para. 25)58:
(a) Before Constitution

"The practice of using the public highways for religious processions has existed in India for thousands
of years. History, literature and tradition all tell us that religious processions to the village shrines
formed a feature of the national life from the very earliest times...
A procession is but an assembly in motion and if it is a religious procession, it is... entitled to the
special protection given by the Penal Code to assemblies lawfully engaged in religious worship.
In Parthasarathi Iyengar v. Chinnakrishna Iyyangar ,59 it was held, "persons of whatever sect are ...
entitled to conduct religious procession through public streets, so that they do not interfere with the
ordinary use of such streets by the public and subject to such directions as the Magistrate may
lawfully give to prevent obstruction of the thoroughfare or breach of public peace". In Sundaram Chetti
v. Queen ,60 after reiterating the above position, it was further observed that the worshippers in the
mosque or temple which abutted on the road could not compel the processionists to intermit their
(processionists) worship while passing the mosque or temple on the ground that there was a
continuous worship there. It was held, "with regard to processions, if they are religious in character,
and the religious sentiment is to be considered, it is not less a hardship on the adherents of a creed
that they should be compelled to intermit their worship, at a particular point, than it is on the adherents
of another creed, that they should be compelled to allow the passage of such a procession past the
temples they reverse. But the prejudices of particular sects ought not to influence the law".
(b) Under the Constitution
Not being content with the special protection given to religious procession by the Indian Penal Code
(s. 296), the makers of the Constitution of free India has given it a constitutional foundation and
protection by guaranteeing, by Art. 25(1), not only the rightof worship but also the right to observe any
'religious practice',--which would obviously include the right to take out religious processions to and
from the 'village shrines' which has been in uninterrupted user 'for thousands of years'61. Since 1950, it
is no longer necessary to fall back upon history, custom or immemorial user, because Art. 25(1) is a
guarantee in favour of 'all persons', irrespective of the length of his 'religious practice'.
But recentness of practice or religion concerned is a relevant factor to consider whether it is essential
religious practice. Regarding Ananda Margi Order, though it was founded in 1955, Tandava dance in
procession was inducted as a practice only ten years later, i.e., 1966. Since the practice was
introduced later as an addition to the order, it was held that it is not a religious practice. Majority view
in Commissioner of Police v. Acharya Jagadishwarananda Avadhutha.62
Does the playing of music in the procession make any change in the legal position?
U.K.
In England, it is settled that the common law right use every part of a highway for the purpose of
passage and re-passage would include any other purpose which was reasonably incidental to that
purpose.63
Such incidental right would include, for instance, a temporary64 halt or squatting by a pedestrain to take
rest or to make a minor repair (in the case of a vehicle passenger) 65 or for demonstration by a pedlar,
or for receiving or delivering goods to adjoining houses. 66
 400

On the other hand,--picketing on the highway would be an unreasonable user 67 of a highway, because
it is wholly unconnected with the purpose to which the highway was dedicated, viz. The right of the
public to have unimpeded access to the highway.68
Similarly, no user can be held to be 'reasonable' where it is excessive in extent, irrespective of any
wrongful intent on the part of the wrongdoer, e.g., where a merchant, by continuously keeping vans
before his door, practically appropriates for his business purposes part of the roadway and thereby
obstructs the roadway for passage by the public.
It follows that playing bands of Music does not change the character of a procession which has a
lawful object and is conducted peacefully,69--just as carrying of banners does not.70 In DPP v. Jones ,71
an order had been made prohibiting the holding of assemblies within a four-mile radius of Stonehenge
from 29.5.1995 to 1.6.1995. While the order was in force a peaceful assembly was held within the
area covered by the order when those present refused to disperse, they were arrested and convicted
of "trespassory assembly". The conviction was overturned by Crown Court and on an appeal by way
of case stated, it was held that conduct could constitute a trespassory assembly, even though the
conduct complained of was peaceful and did not obstruct the highway. The question was whether the
assembly exceeded the public right of access to the highway for the purpose of definition of
"trespassory assembly', if the public had the right to use the highway in this way there would be no
trespass under the Public Order Act, 1986 as amended. House of Lords reversed and reinstated the
decision of Crown Court. The Court said that the right to use the highway was not limited to passage
and re-passage; the public highway is a public place which the public may enjoy for any reasonable
purpose, provided the act ivity in question does not amount to a public or private nuisance and does
not obstruct the highway by unreasonably impeding the primary right of public to pass and re-pass
within these qualifications, there is a public right of peaceful assembly on the highway.
In Raymond v. Cook ,72 concerning the breach of a bye-law prohibiting the use of any bell or other
noisy instrument for the purpose of selling any article in any street or public place so as to cause to
annoyance to the inhabitants, it was held, "The proper approach to these cases is for the justices to
ask for themselves first, was the instrument so noisy as to be calculated to annoy? On that, the facts
may speak for themselves, or it may be necessary for them to hear evidence, albeit of only one
person, but once they have come to the conclusion that the noise was calculated to annoy, then it is
quite unnecessary for them to have any evidence as to who and how many people were in fact
annoyed".
In regard to "religious meetings", it was observed that normal sound may not be nuisance, but if an
attempt is made to play a band either with or without accompaniment of singing, it may cause
nuisance. A peel of bells may amount to extreme nuisance to a person who lives in a very few feet
away, but to a person who resides little away, the sound may be reasonable. 73
Since an individual is perfectly within his right to play his flute, drum or other musical instrument, while
passing by the highway, it is equally lawful for an aggregate of individuals to play music while
participating in a procession.
India
The foregoing proposition, flowing from common law, is buttressed when it comes to be guaranteed as
a fundamental right under Art.19(1)(b), under which it is immaterial how the right is exercised, so long
as the assembly or procession is peaceable, without arms and does not commit a breach of the
peace. As the Court observed--
"....the processionists had the right to come in procession along the public highway, whether with or
without music, so long as they did so peaceably, without being armed and subjected themselves to
control by the State in the interest of regulation of traffic .....and in the interest of public peace." 74
Of course, if the processionists cause obstruction of the traffic, i.e., to the exercise of a corresponding
right of other people to use the highway, the processionists may be liable for causing 'public nuisance'.
 401

But a procession may amount to a public nuisance only if it constitutes an 'unreasonable user' of the
highway or an obstruction of traffic75. Music, as such, as will be presently seen, cannot constitute a
public nuisance.
The foregoing propositions, of English common law following words by TURNER, C. J. in Muthialu's
case, at a time when there was no Constitutional provisions governing the matter:
"It is.... a right recognised by law that persons may, for a lawful purpose, whether civil or religious, use
a common highway by parading it attended by music, so that they do not obstruct the use of it by other
persons".76
The same proposition was reiterated by BENSON J. in Vijiaraghava's case77.
The foregoing proposition has been approved by, the Supreme Court in Ghulam's case78.
Hence, unless there is anything violent in the conduct of the processionists, the playing of music by a
procession, without more, cannot be stopped or penalised on the ground that it would cause
annoyance to the abutting owners or other people. 79
At common law, a procession in the streets is prima facie lawful, being no more than the collective
exercise of the public right to use the highway for its primary purpose. This does not mean that it
would be a reasonable use of a highway for a dozen demonstrators to link arm and proceed down a
street so as to interfere with the right of others to use the highway or a large number of demonstrators
to decide to obstruct a street; procession would become a nuisance if the right was exercised
unreasonably or with reckless regard of the rights of others. 80
Private nuisance.
In India, too, this principle has to be followed, for the simple reason that 'music' must be distinguished
from noise; noise may cause annoyance and constitute private nuisance, but music may not, because
music is not an unnatural user of property while noise is. Secondly, the test of discomfort is that of a
reasonable man and not that of a hypersensitive man. In applying the various English decisions on
this point, however, a distinction must always be borne in mind between the performance of religious
rites or music on one's private property and the exercise of such rights on a public highway, 'which' is
the common property of each member of the public. In the result, where the contest is between a
Hindu performing religious rites with music on his private property, which is objected to by an abutting
mosque, 'private nuisance' may be a relevant issue81; but not so when Hindus carry on a religious
procession with music along a public highway. In the latter case, private nuisance is not relevant, but
'public nuisance82 may be, but the concepts and ingredients of the two categories of nuisance are
altogether different.
It would be pertinent to submit at once why 'private nuisance' is not relevant in the case of playing of
music with a religious procession on the public highway, at least after the commencement of the
Constitution. The reason is that such right being protected by Art. 19(1)(b) of the Constitution, can be
restricted only on the relevant ground of 'public order' under Cl. (3) of Art. 19. But mere personal
discomfort or sentiments or prejudices have no proximate relation with 'public order'.
Referring to an Australian case, the learned author JUSTICE T. S. DOABIA has stated in his book:83"It
is possible that persons may lawfully assemble for the purpose of religious worship and the sound
proceeding from such services (using a band) as are ordinarily conducted may not be nuisance, if the
defendants are using a band and if this causes nuisance, there it is possible to issue restraint orders. 84
Teaching of music, though does not offend any law, must be done in a manner which, beyond fair
controversy, ought to be regarded as unreasonable. 85 Music or teaching music lessions which goes in
such a manner as to cause annoyance or injury to the plaintiffs, which affects their business, could be
prevented.86
When action is taken to restrain emission of musical or similar sounds, the question which is required
to be gone into is as to whether noise complained of is causing injury to the person. 87
Jalil v. Ramnath
 402

Assuming that music may constitute a disturbance, the standard of nuisance is that of a 'reasonable
man, not an oversensitive pretender', as the eminent Muslim JUDGE SULAIMAN, J. observed88, It is
an ordinary incident of a person having his dwelling house on the road-side and a mosque is no
exception to this general rule of common law. Hence,
"Even' if music, whether religious or not, offends against the religious sentiments of another
community, it cannot be objected to on that ground."89
Another eminent Muslim JUDGE CHAGLA, C. J. has applied the same principle where an abutting
Mosque objected to the play of music by a non-religious procession, viz., a wedding procession,90
because the principle to be applied in both cases was the same, namely, that the processionists were,
making a 'reasonable user of the highway' (para. 3).
Piru v. Kalandi
It should also be added in the present context that not to speak of stopping the music altogether, the
processionists would not be obliged even to lower the tone of their music while passing along the
road-side mosq8ue. This, as we shall see hereafter, is the result of affirmance by the Supreme Court 91
of the judgment of the Orissa High Court92. In that case93; which was also a case of stopping of Hindu
music before a mosque, the Subordinate judge, while declaring the rights of the Hindus imposed two
conditions, while passing by the mosque, viz., that (a) there should be no beating of drums; (b) other
music should be played 'in a low-sound'. The High Court94set aside these two conditions as
'unreasonable' 'restrictions' upon the fundamental right under Art. 19(1)(b) and declared the rights of
the Hindus to play music as usual, subject only to orders of the Magistrate and the Police for
prevention of obstruction of traffic and breach of the peace. This declaration was upheld by the
Supreme Court, subject to verbal alterations. The morale of this decision is that the Hindu
processionists cannot be required even to lower down the tone of their music before the mosque on
the ground of annoyance to the Muslims.
As to the powers and duties of the Police for the maintenance of public peace, we shall deal with it
separately.
Public nuisance
Public nuisance, in this context, means obstruction of the traffic. Even if 'annoyance' be the test, it may
be caused by the explosion of crackers (as distinguished from fireworks used in Hindu worship) or the
use of the microphone95 to make the sound raucous.
No justification to object to music as such
The question is as to the playing of music, which, as such, can cause annoyance to none. Not only in
Hinduism, but in almost all religions of the world--Christianity, Sikhism, Buddhism, Jainism,--music in
one form or other, is part of worship and other religious rites accompanying worship. That it is not
intrinsically offensive of Muslim religion is eloquently proved by the fact that Tansen, the father of
classical music in India, was a Muslim convert and a beloved courtier of Emperor Akbar. Not that it
was a luxury of an Emperor; even today, most of the drummers and sehnai-wallas are Muslims. Had it
been banned by Muslim religion, Bismilla Khan, Ali Hussain or Alauddin Khan would have lost their
heads in no time. Music is also played at Jalsas held on Muslim religious ceremonies like the Id and
the like. In fact, in none of the litigations96, for over a century could the Muslim protesters point out any
passage in the Koran branding music as sacrilegious.
In Noise Pollution (V), In re.,97 one of the complaints before the Supreme Court was "singing bhajans"
by use of loudspeakers. In that case, the Supreme Court held that while every citizen has the freedom
of speech and expression, any person who wishes to live in peace, comfort and quiet within his house
has a right to prevent noise as a pollutant reaching him and that is a fundamental right guaranteed
under Art. 21. Person making noise cannot take shelter under Art. 19(1)(a) when there is violation of
Art. 21.
On this point, the Author can do no better than to reproduce the words of the great Muslim JUDGE
SULAIMAN, J. (who later, was elevated to the Federal Court), in Jalil v. Ramnath98:
 403

"There is no right to commit a public nuisance on a highway....But all music however bad cannot
amount either to a public nuisance or a private nuisance, even though it may annoy occupiers of a
dwelling-house situated on the road.
But a noise may become a nuisance. . . .There is no definite legal measure for a noise becoming a
nuisance. It is purely a question depending on the facts of each case, including the degree of its
intensity, its place, the time, the mode of committing it, its duration and all the surrounding
circumstances. The standard of judging it is according to that of men of ordinary habits, and not of
men. . . .of over-sensitive nature, whether due to religious sentiment or not".
This observation coming from an eminent Muslim judge should silence the present-day political
zealots who want to stop Hindu music accompanying a religious procession--at any hour of the day--
with a view to appeasing the 'sentiments'99 of the Muslims.
We shall presently see that when the music is played as a part of religious practice, under Art. 25(1)
the rights of the religious processionists come to be guaranteed by the Constitution, subject only to
public order, (public morality or health).
Manzur's case
SULAIMAN, J., in that judgment,100 further observed that in Manzur's case,101 the Privy Council had
dismissed the suit not because the music of the Shiah procession caused a public nuisance by
annoying the worshippers at the Sunni mosque, but because the Shiah procession was so long and
the road across the mosque was so narrow that it would take more than "35 minutes" for the
procession to pass, resulting in a complete blockade or obstruction of the road for the purpose of the
right of the public to use it for ordinary traffic. That the Privy Council, in spite of the dismissal on the
above ground, gave a declaration of the right sought for by the Shiahs would show that in that case.
"there was no question as to the right to play music, nor was there any suggestion that such music
amounted to a nuisance."102
The claim of the Shiahs was to conduct the procession, without obstruction, before the mosque. That
was declared 'subject to the orders of the local authorities regulating the traffic'103 It is for such
regulation, it is submitted, that the power under Sections 31 of the Police Act has been reserved to
the Police. That provision would not empower the police to stop the music, but would enable them to
see that the ordinary traffic is not totally blocked by the procession.
If we turn over the case-law relating to this hoax of music before mosque, we shall come upon the
origin and foundation of this Muslim resistance to music played by Hindu religious processionists.
Sundram's case
Muslim intolerance, a relic of Muslim imperialism
As TURNER, C. J., pointed out in the early Full Bench104 case of Sundram, the aversion of the Muslims
to a procession with music was directed only against the Hindus and had its origin in Muslim
imperialism dating from the days of Muslim rule. The intolerance of the Muslims, particularly the Sunni
sect, according to TURNER, C.J., is totally unjustifiable, just like the insistence on the slaughter of the
cow as an 'essential' part of the Muslim religion105, simply because the Hindus viewed the cow with
religious sanctity. The length to which fanaticism may be supported by a subservient Magistrate who
seeks to placate the Muslims would be demonstrated by the following observation of Turner, C.J. 106:
"An order, which came before this Court, prohibiting a Private householder from having in his house at
any hour of the day or night throughout the year, because the house music was adjacent to a place of
religious worship, illustrates the intolerance an indiscreet Magistrate may countenance".107
It follows at once that when any such unreasonable 'intolerance' is against the exercise of the lawful
rights of a Hindu religious procession, it should be the duty of the authorities which the Respondents
in the Mograhat case108, forgot to protect the lawful rights of the processionists, for,
"the prejudices of particular sects ought not to influence the law".109
 404

That this is due to sheer fanaticism is eloquently established by the fact that the Sunni sect of Muslims
has been repeatedly clashing against the religious practices of another sect of the same religion viz.,
the Shiahs, to the point of breaking heads, simply because they follow a different version of the
scriptures as to, the same religious ceremony, prescribed by the Muslim religion, notwithstanding the
uniform condemnation of such fanaticism by successive impartial English judges and Muslim judges of
eminence, ending with the Supreme Court of today. 110
As SIKRI, C. J., pointed out in Himmat Lal's case (para s. 22-29)111, prior to the Constitution the
'inherent right' to conduct a religious procession had been established on a separate footing, in a
continuous series of High Court decisions. Of this long line of decisions 112, reference may be made to
the following cases in most of which the rights of the Hindu processionists were objected to by the
Muslims, and, in some others, curiously, one sect of the Muslims themselves had to take the aid of the
Court against the opposition of another sect following the same religion,--objecting to music because
of the same fanaticism and intolerance.
Muthialu's case

11.  In the early case of Muthialu113 the question of the right of the Hindus to
conduct a procession with music while passing a mosque abutting the highway arose,
and the local Magistrate ordered that the processionists should stop their music while
passing the mosque. The Madras High Court annulled the order on the ground that
though the Magistrate had the power to ensure that the procession did not obstruct the
traffic along the highway, he had no power to absolutely prohibit the exercise of the right
of the processionists to play music along the highway merely because there was a
mosque on the side of the highway. It was further observed that the right to the free
exercise of religion belonging to the Hindus could not be defeated by members of
another community by building a mosque "in the neighbourhood of each highway".
Sundram's case

15I.  Sundram's Case114 came up before a Full Bench of the Madras High Court.
In this case, the question was dealt with from the standpoint of the worshippers in the
abutting mosque and it was laid down that they had no right to insist that the Hindu
processionists must stop their music whenever they happened to pass the mosque,
because the Hindus had a legal right to conduct a procession with music along the
highway, which could not be interfered with on the ground of the sentiments or
prejudices of the worshippers at the mosque.
10II.  In the 1925 Manzoor's case115 the Privy Council authoritatively laid down
that--
"In India, there is a right to conduct a religious procession with its appropriate observances through a
public street...".116
105 U.S. v. Cruikshank, (1875) 92 US 542 (552).

106 American Communication v. Douds, (1950) 339 US 382.

107 Hague v. CIO, (1939) 307 US 496 (supra).

108 Presser v. Illinois, (1886) 116 US 252.

109 Gibbons v. Ogden, (1824) 22 US (9 Wheat) 1.

110 Ivor Jennings, Law and the Constitution,5th Edn.,1971.

111 Carl J. Fredrick, Constitutional Government & Democracy, 4th Edn.

1 See Article by Dr. Anand Prakash published in the book Constitutional Law of India, Vol. I, Bar Council of India Trust,
edited by M. Hidayathullah, at p. 320.

2 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423.

 405

3 U.S. v. Cruikshank, (1875) 92 US 542 (552).

4 Radhey Sham v. P.M.G., AIR 1965 SC 311 : (1964) 7 SCR 403; Kedar Nath v. State of Bihar, AIR 1962 SC 955.

5 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423.

6 Ry. Board v. Niranjan, AIR 1969 SC 966 (969-70) : (1969) 1 SCC 502.

7 Ry. Board v. Niranjan, AIR 1969 SC 966 (969-70) : (1969) 1 SCC 502.

8 Ry. Board v. Niranjan, AIR 1969 SC 966 (969-70) : (1969) 1 SCC 502.

9 Himmat Lal v. Police Commr., AIR 1973 SC 87(94) : (1973) 1 SCC 227.

10 T.K. Rangarajan v. Government of Tamil Nadu, AIR 2003 SC 3032 : (2003) 6 SCC 581.

11 See further, under Art. 25(1), post.

12 Chandu v. Nayahalchand, AIR 1950 Bom 192.

13 Schneider v. State, (1939) 308 147 (160); Lincoln Fed v. Northwestern Iron Co., (1949) 335 US 525 (531).

14 Piru v. Kalandi, AIR 1970 SC 1885 : (1969) 2 SCR 563; Martin v. Husain, AIR 1944 PC 33.

15 Himmat Lal v. Police Commr., AIR 1973 SC 87(94) : (1973) 1 SCC 227.

16 ISKON v. Lee, (1992) 120 L. Ed. 2nd 541.

17 Heffron v. ISKON, (1981) 452 US 640.

18 Members of City Council of Los Angeles v. Taxpayers for Vincent, (1984) 466 US 789.

19 Schneider v. State, (1939) 308 147 (160).

20 Lincoln Fed v. Northwestern Iron Co., (1949) 335 US 525 (531).

21 Feiner v. N.Y., (1951) 340 US 315.

22 Terminiello v. Chicago, (1949) 337 US 1.

23 Camtwell v. Connecticut, (1940) 310 US 296.

24 (1963) 372 US 229.

25 See also Cox v. Lousiana, (1965) 379 US 536; Gregory v. City of Chicago, (1969) 394 US 111.

26 Hague v. Committee for Industrial Organisation, (1939) 307 US 496. See alsoShutlessworth v. City of Birmingham,
(1969) 394 US 147 : 22 L Ed. 2nd 162.

27 Hague v. Committee for Industrial Organisation, (1939) 307 US 496. See alsoShutlessworth v. City of Birmingham,
(1969) 394 US 147 : 22 L Ed. 2nd 162.

28 Hague v. Committee for Industrial Organisation, (1939) 307 US 496. See alsoShutlessworth v. City of Birmingham,
(1969) 394 US 147 : 22 L Ed. 2nd 162.

29 Cox v. New Hampshire, (1941) 312 US 569.

30 Cox v. New Hampshire, (1941) 312 US 569.

31 Cox v. New Hampshire, (1941) 312 US 569.

32 Hague v. Committee for Industrial Organisation, (1939) 307 US 496. See alsoShutlessworth v. City of Birmingham,
(1969) 394 US 147 : 22 L Ed. 2nd 162.

33 Davis v. Massachusetts, (1897) 167 US 43.

34 U.S. v. Grace, (1983) 461 US 171.

 406

35 West Virginia State Board v. Barnette, (1943) 319 US 624; Thomas v. Collins. (1945) 332 US 851.

36 Gregory v. Chicago, (1969) 394 US 111 (118, 124-5).

37 Terminiello v. Chicago, (1949) 337 US 1.

38 Coates v. Cincinnati, (1970) 402 US 611 (615).

39 Coates v. Cincinnati, (1970) 402 US 611 (615); Gooding v. Wilson, (1972) 405 US 518.

40 West Virginia State Board v. Barnette, (1943) 319 US 624 (supra).

41 Adderley v. Florida, (1966) 385 US 39.

42 Adderley v. Florida, (1966) 385 US 39.

43 Greer v. Spock, (1976) 244 US 824.

44 Grayned v. Rockford, (1972) 408 US 104.

45 Frisby v. Shultz, (1988) 487 US 474.

46 (1972) 408 US 104.

47 R. v. Kamara, (1972) 3 All ER 999(CA) ; R. v. Neale, (1839) 9 C&P 431.

48 R. v. Kamara, (1972) 3 All ER 999(CA) ; R. v. Neale, (1839) 9 C&P 431.

49 (1974) AC 104.

50 Cf. Button v. D.P.P., (1966) AC 591; R. v. Taylor, (1972) 3 WLR 961.

51 Cf. O'Moran v. Whelan, (1975) 1 All ER 473.

52 R. v. Jura, (1954) 1 QB 303(CA) .

53 Hood Phillips, 1987, pp. 554 ff.

54 Babulal v. State of Maharashtra, AIR 1961 SC 884 (888) : (1961) 3 SCR 423.

55 Babulal v. State of Maharashtra, AIR 1961 SC 884 (888) : (1961) 3 SCR 423.

56 Manzoor v. Zaman, AIR 1925 PC 36; Martin v. Faiza Hussain, AIR 1944 PC 33.

57 (1935) 2 KB 434.

58 See McLeod v. UK, 27 EHRR 493.

59 McLeod v. Commissioner of Metropolis, (1994) 4 All ER 553.

60 See Hood Phillips & Jackson, Constitutional & Administrative Law, 8th Edn., pp. 620 - 621.

61 (1936) 2 KB 434.

62 See Hood Philips, Constitutional and Administration, 3rd Edn., p. 488, from Dicey, Law of Constitution.

63 De Morgan v. Metropolitan Board of Works, (1880) 5 QBD 155.

64 Burden v. Rigler, (1911) 1 KB 337.

65 Ex parte Lewis, (1888) 21 QBD 191 (197).

66 Cf. Hubbard v. Pitt, (1975) 3 All ER 1 (7)(CA) .

67 Papworth v. Coventry, (1967) 2 All ER 41.

68 Watchtower Bible Society v. Metropolitan Ins. Co., (1949) 335 US 886; Hague v. C.I.O., (1939) 307 US 496.

69 Thomas v. Collins, (1945) 323 US 516.

 407

70 Fowler v. Rhode Island, (1952) 345 US 67; Brown v. Luisiana, (1966) 383 US 131.

71 Cox v. State of New Hampshire, (1941) 312 US 569; American Communications Assocn. v. Douds, (1950) 339 US
382.

72 Watchtower Bible Society v. Metropolitan Ins. Co., (1949) 335 US 886; Hague v. C.I.O., (1939) 307 US 496.

73 Good v. Dow Chemical Co., (1952) 344 US 805. See also Lloyd Corp. v. Tanner, 407 US 551 (1972).

74 Adderley v. Florida, (1966) 385 US 39; Cox v. Louisiana, (1964) 379 US 536 (554).

75 Watchtower Bible Society v. Metropolitan Ins. Co., (1949) 335 US 886; Hague v. C.I.O., (1939) 307 US 496.

76 Kovacs v. Cooper, (1949) 336 US 77.

77 (1897) 167 US 43.

78 162 Mass 510.

79 Hague v. C.I.O., 307 US 496 (1939).

80 United States v. Grace, 461 US 171 (1983).

81 (1972) 408 US 104.

82 Watchtower Bible Society v. Metropolitan Ins. Co., (1949) 335 US 886; Hague v. C.I.O., (1939) 307 US 496.

83 De Jonge v. State of Oregon, (1937) 299 US 255.

84 Thomas v. Collins, (1945) 323 US 516.

85 Adderley v. Florida, (1966) 385 US 39; Cox v. Louisiana, (1964) 379 US 536 (554).

86 E.g., Art. 8 of the West German Constitution.

87 Cf. Hood Phillips, Constitutional Law, 1962; also see our Prevention of Seditious Meetings Act (X of 1911, post).

88 Mc.Carton Turkington Breen v. Times Newspapers Ltd., (2000) 3 WLR 1670(HL) : (2000) 4 All ER 913.

89 Himat Lal K. Shah v. Commissioner of Police, AIR 1973 SC 87 : (1973) 1 SCC 227.

90 Ridge, Constitutional Law, 8th Edn., p. 388.

91 See Halsbury's Laws of England, Vol. 11(1), 4th Edn. (Re-issue), Chapter "Offences against Government and
Public", para 142, p. 120.

92 See Hood Phillips & Jackson, Constitutional and Administrative Law, 8th Edn., at p. 628.

93 (1950) 2 KB 498.

94 Rameswar v. State, AIR 1957 Pat. 252.

95 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423.

96 State v. Mangala, AIR 1957 All 753.

97 State of Bihar v. Misra, AIR 1971 SC 1667 : (1969) 3 SCC 337.

98 See Ramlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682; see also Romesh Thapper v. State of
Madras, AIR 1950 SC 124; UOI v. Association for Democratic Reforms, (2002) 5 SCC 294 : AIR 2002 SC 2112.

99 AIR 1970 SC 1885 : (1969) 2 SCC 563.

100 Sorab v. Emp., AIR 1953 (Bom).

101 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423.
 408

102 SeeRamlilal Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682; see also Babulal Parate v. State of
Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423; Madhu Limaye v. S.D.M., Monghyr, AIR 1971 SC 2486 : (1970) 3
SCC 746; State of Bihar v. Kamla Nath Mishra, (1969) 3 SCC 337; Jagrupa Kumari v. Chobey Narain Singh, (1936) 37
CrLJ 95(Patna) ; Himat Lal K. Shah v. Commr. of Police, (1973) 1 SCC 227; Railway Board v. Niranjan Singh, (1969) 1
SCC 502; State of Karnataka v. PraveenBhai Thogadia, (2004) 4 SCC 684 : AIR 2004 SC 2081.

103 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.

1 SeeRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

2 Brahmanand v. State, AIR 1959 Pat 425.

3 Cf. Hague v. C.I.O., (1897) 167 US 43.

4 Vide Annadurai, in re, AIR 1959 Mad 63 (para. 4).

5 Himmatlal v. Police Commr., AIR 1975 SC 87 (para. 64). Note:- The entire decision is criticised by learned author and
eminent Jurist H.M. SEERVAI in his book Constitutional Law of India, 4th Edn., Vol. I, at pp. 796-799).

6 Constitutional Law of India, 4th Edn., Vol. I, at p. 794.

7 SeeRameshwar v. State, AIR 1957 Pat 252.

8 AIR 1961 Ori 167.

9 SeeM. Manjoorn v. State of Travancore-Cochin, AIR 1954 Trav.-Co. 47.

10 Mecheneni Krishan Rao v. Commissioner of Police, Hyderabad, AIR 2002 A.P. 457.

11 Harrison v. Rutland, (1893) 1 QB 142 (154) CA (See ante).

12 Hickman v. Maisey, (1900) 1 QB 752(CA) ; Hirst v. Chief Constable, (1987) 85 Cr AppR 143; Nagy v. Weston, (1965)
1 All ER 78.

13 Habbard v. Pitt, (1976) QB 142 (supra).

14 (1985) 149 JPR 551.

15 See Edwin Shorts & Clair de Than, Civil Liberties - Legal Principles of Individual Freedom, 1998 Edn., at p. 189.

16 (1999) 2 AC 240.

17 (1987) 85 Crl. App. 143 (supra).

18 Arrowsmith v. Jenkins, (1963) 2 QB 562; Homer v. Godman, (1886) 16 Cox CC 51.

19 Hickman v. Maisey, (1900) 1 QB 752(CA) ; Hirst v. Chief Constable, (1987) 85 Cr AppR 143; Nagy v. Weston, (1965)
1 All ER 78.

20 Hubbard v. Pitt, (1975) 1 All ER 1056 (1068)(QBD) .

21 Lowdens v. Keaveney, (1903) 2 IR 82; Naqy v. Weston, (1965) 1 All ER 78.

22 Cf. 268, Indian Penal Code .

23 Cf. Arrowsmith v. Jenkins, (1963) 2 All ER 213; Redbridge v. Jacques, (1970) 1 WLR 1604.

24 Hubbard v. Pitt, (1975) 1 All ER 1056 (1068)(QBD) .

25 Prof. De Smith, Constitutional and Administrative Law, 2nd Edn., pp. 500-501.

26 Burden v. Rigler, (1911) 1 KB 337.

27 (1999) 2 AC 240.

28 Lowdens v. Keaveney, (1903) IR 82.

29 See Hood Philips, Constitutional and Administrative Law, 3rd Edn., pp. 490-492.
 409

30 Himmat Lal v. Police Commr., AIR 1973 SC 87 (94). [The Calcutta Police or the State Government seems to be
oblivious to the foregoing basic law when they permit year after year the holding of a community prayer on the Red
Road, which completely blocks all traffic, while there is a vast Maidan adjoining that very site. Once conceded, the
minority extended its illegal claim to squat on a new highway, such as the Chittaranjan Avenue. (lt may be mentioned in
this connection that in England, it would be no defence to the offence of obstruction of a highway by holding a meeting,
that the obstruction was only partial or that such meetings had been held before: Arrowsmith v. Jenkins, (1963) 2 All ER
210)].

31 Himmat Lal v. Police Commr., AIR 1973 SC 87 (94). [The Calcutta Police or the State Government seems to be
oblivious to the foregoing basic law when they permit year after year the holding of a community prayer on the Red
Road, which completely blocks all traffic, while there is a vast Maidan adjoining that very site. Once conceded, the
minority extended its illegal claim to squat on a new highway, such as the Chittaranjan Avenue. (lt may be mentioned in
this connection that in England, it would be no defence to the offence of obstruction of a highway by holding a meeting,
that the obstruction was only partial or that such meetings had been held before: Arrowsmith v. Jenkins, (1963) 2 All ER
210)].

32 A.P. Civil Liberties Committee v. Collector and District Magistrate, Guntur, AIR 2003 A.P. 450.

33 Cf. Arrowsmith v. Jenkins, (1963) 2 All ER 213; Redbridge v. Jacques, (1970), 1 WLR 1604.

34 E.g., a restaurant [Gerner v. Louisiana, (1961) 368 US 157] a lunch counter [Barr v. Columbia, (1964) 378 US 146];
a bus terminal [Taylor v. Louisiana, (1962) 370 US 154]; State House grounds (seat of the State Government)
[Edwards v. S. Carolina, (1963) 372 US 229]; public library [Brown v. Lousiana, (1966) 383 US 131]; street
[Shuttlesworth v. Birmingham, (1965) 382 US 87].

35 Adderley v. Florida, (1966) 385 US 39.

36 SeeHague v. CIO, (1939) 307 US 496 (supra).

37 SeeWidmar v. Vincent, (1981) 454 US 263 - University meeting facilities; South Eastern Promoters Ltd. v. Conrad,
(1975) 420 US 546 - Municipal theatre.

38 (1981) 454 US 263 (supra).

39 Ry. Bd. v. Niranjan, AIR 1969 SC 966 (969-70).

40 Ry. Bd. v. Niranjan, AIR 1969 SC 966 (969-70).

41 D. Ananta Prabhu v. District Collector, AIR 1975 Ker 117.

42 Delhi Public School v. Delhi Public School Karamchari Union, AIR 2002 Del 36.

43 Grayned v. Rockford, 408 US 104 (1972).

44 Frisky v. Shultz, 487 US 474 (1988).

45 Watchtower Bible Society v. Metropolitan Ins. Co., (1949) 335 US 886; Hague v. C.I.O., (1939) 307 US 496.

46 Thomas v. Collins, (1945) 323 US 516.

47 Feiner v. N.Y., (1951) 340 US 315 (317-21).

48 Feiner v. N.Y., (1951) 340 US 315 (317-21).

49 Feiner v. N.Y., (1951) 340 US 315 (317-21).

50 Sellers v. Johnson, (1948) 332 US 851.

51 (1949) 337 US 1 (supra).

52 Edwards v. S. Carolina, (1963) 372 US 229; Gregory v. Chicago, (1969) 394 US 111. See also Cox v. Loussiana,
(1965) 379 US 536; Cantewell v. Connecticut, (1940) 310 US 296.

53 Beatty v. Gilbanks, (1882) 9 QBD 308. See alsoR v. University of Liverpool exparte Caesar-Gordan, (1991) 1 QB
124.

54 Cf. Howard v. B.R.B., (1980) 1 WLR 1375 (1385).

55 (1963) 2 QB 744.
 410

56 Dicey, Law of Constitution, 10th Edn., p. 276.

57 Halsbury's Laws of England, Vol. 11(1), 4th Edn. (Re-issue), "Offences against the Government and the public -
paras 147-148.

58 E.g., Wise v. Dunning, (1902) 1 KB 167; Humphries v. O'Connor, (1864) 17 Ir. CLR 1.

59 O'Kelly v. Harvey, (1883) 14 LR Ir. 105 (109)(CA) ; Moss v. McLachlan, (1985) IR 77.

60 Dicey, Constitution Law, 10th Edn., p. 277.

61 Duncan v. Jones, (1936) 1 KB 218.

62 Jordan v. Burgoyne, (1963) 2 All ER 225 (227).

63 Brutus v. Cozens, (1972) 2 All ER 1297(HL) .

64 Brutus v. Cozens, (1972) 2 All ER 1297(HL) .

65 Cf. R. v. Malik, (1968) 1 All ER 582.

66 O'Kelly v. Harvey, (1883) 14 LR Ir. 105 (109)(CA) ; Moss v. McLachlan, (1985) IR 77.

67 Coyne v. Tweedy, (1898) 2 IR 167(CA) .

68 R. v. Londonderry JJ., (1891) 28 IR Ir. 440.

69 Beatty v. Gilbanks, (1882) 9 QBD 308.

70 Beatty v. Gilbanks, (1882) 9 QBD 308.

71 Emperor v. Tucker, (1882) 7 Bom 42.

72 Beatty v. Gilbanks, (1882) 9 QBD 308.

73 Humphries v. O'Connor, (1864) 17 Ir. CLR 1.

74 Humphries v. O'Connor, (1864) 17 Ir. CLR 1.

75 Also see Keith, Constitutional Law, p. 453; Robertson, Freedom, the Individual and the Law (1989), p. 85; "The
remedy...was for the Police to arrest those who allow themselves to be provoked into violence by lawful
demonstrations."

76 Humphries v. O'Connor, (1864) 17 Ir. CLR 1.

77 Chafee, Freedom of Speech, 1920, p. 172, quoted in Kohn, Constitution of the Irish Free State, 1932, p. 167.

78 Chafee, Freedom of Speech, 1920, p. 172, quoted in Kohn, Constitution of the Irish Free State, 1932, p. 167.

79 Emperor v. Tucker, (1882) 7 Bom 42.

80 Cf. Babulal v. State of Maharashtra, AIR 1961 SC 884. See alsoRamlila Maidan Incident, In re., (2012) 5 SCC 1 :
(2012) 2 SCALE 682.

81 Sundram v. R., (1882) 6 Mad 203 (217). [See further, under the 'Right of Procession', below].

82 Ghulam v. Union of India, AIR 1981 SC 2198 (para. 28).

83 AIR 1961 SC 884 (supra).

84 Babulal v. State of Maharashtra, AIR 1961 SC 884 (supra).

85 SeeRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

86 AIR 1959 Mad 63.

87 See also Dasappa, Municipal Commissioner v. The Addl. Dt. Magistrate and Dy. Commr. of Police, AIR 1960 Mys
57; Mohd. Shafi Quereshi v. The Dt. Magistrate, Srinagar, AIR 1954 J&K 23.
 411

88 Militia means a band of men who appear with arms supplied by themselves, when called to service.

89 U.S. v. Miller, (1939) 307 US 174.

90 U.S. v. Miller, (1939) 307 US 174(supra).

91 Quilici v. Morton, (1983) 464 US 863; Lewis v. U.S., (1980) 445 US 55 (65n.).

92 Presser v. Illinois, (1886) 116 US 252.

93 270 F 3rd 203 : 5th Cir. 2001.

94 Presser v. Illinois, (1886) 116 US 252.

95 Robertson v. Baldwin, (1897) 165 US 275.

96 U.S. v. Miller, (1939) 307 US 174; Quilici v. Morton, (1983) 464 US 863; Lewis v. U.S., (1980) 445 US 55 (65n.);
Presser v. Illinois, (1886) 116 US 252.

97 Joseph Story, Commentaries on the Constitution of US, Vol. I, 1833 Edn., at p.708.

98 It would thus be legitimate for the Airways to prescribe that an air passenger should not carry his kirpan, while on
board,--in order to prevent fighting or hijacking. Similarly, the Rules of a Legislature may prescribe that no arms
(including a kirpan) should be carried into the House.It is a pity that the Calcutta Police, who banned the use of trisuls
(a trident) by Hindu processionists in the name of 'public order' allowed Sikh processionists to brandish open swords,
ignoring that even the privilege of the Sikhs under Expl. I to Art. 25 was limited by the overall condition of 'public order'
at the beginning of Art. 25(1).

99 R. v. Dhyan Singh, AIR 1952 All 53, relying on AIR 1924 Lah 600.

100 Gopal Singh, Guru Gobind Singh, 1966, National Book Trust, India, New Delhi. At p.29.

101 Gopal Singh, Guru Gobind Singh, 1966, National Book Trust, India, New Delhi. At p.29.

102 The other objects, namely, a comb, bangle or drawer, were common objects available to every person.

103 World's Religions (P.H.I., 1989) p. 386.

104 World's Religions (P.H.I., 1989) p. 386.

105 P.H.I., 3rd Ed., 1987, p. 102. 'any instrument used in fighting; weapon'. A 'weapon', again, means 'An instrument or
device of any kind used for fighting'.

106 Mark the man on the left in the photo at p. 558 of Smart, World Religions (P.H.I. 1989), and the man at the Centre
of p. 160 in Karan Singh's Religions of India (India Library, 1983).

107 World's Religions (P.H.I., 1989) p. 386.

108 It is to be noted that though Prof. Kartar singh (Life of Guru Gobind singh, 1951, p. 153) translates the word kirpan
as a sword, he acknowledes that at the time of his writing, most Sikhs had 'reduced it to the size of a nail'. If that be so,
it was natural for the framers of the Constitution to assume, in 1948-49, that kirpan meant a dagger, which is carried by
every Sikh as a part of the profession of his religion.

109 Nanak Chand v. State of Delhi, 1992 Crl. LJ 55.

110 Neel v. State of WB, AIR 1972 SC 2066 : (1972) 2 SCC 668.

111 Nanak Chand v. State of Delhi, 1992 CrLJ 55(Del) .

112 Jagdiswaranand Avadhuta Acharya v. Police Commr., AIR 1984 SC 51 (57) (para s. 2, 5) : (1983) 4 SCC 522.

1 Jagdiswaranand Avadhuta Acharya v. Police Commr., AIR 1984 SC 51 (57) (para s. 2, 5) : (1983) 4 SCC 522.

2 Jagdiswaranand Avadhuta Acharya v. Police Commr., AIR 1984 SC 51 (57) (para s. 2, 5) : (1983) 4 SCC 522.

3 Jagdiswaranand Avadhuta Acharya v. Police Commr., AIR 1984 SC 51 (57) (para s. 2, 5) : (1983) 4 SCC 522.
 412

4 Vide para. 2 Jagadiswarananda Avadhuta Acharya v. Commr. of Police, AIR 1990 Cal 336 (BHAGABATI PRASAD
BANERJEE, J.).

5 Vide para. 2 Jagadiswarananda Avadhuta Acharya v. Commr. of Police, AIR 1990 Cal 336 (BHAGABATI PRASAD
BANERJEE, J.).

6 Vide para. 2 Jagadiswarananda Avadhuta Acharya v. Commr. of Police, AIR 1990 Cal 336 (BHAGABATI PRASAD
BANERJEE, J.).

7 Vide para. 2 Jagadiswarananda Avadhuta Acharya v. Commr. of Police, AIR 1990 Cal 336 (BHAGABATI PRASAD
BANERJEE, J.).

8 Vide para. 2 Jagadiswarananda Avadhuta Acharya v. Commr. of Police, AIR 1990 Cal 336 (BHAGABATI PRASAD
BANERJEE, J.).

9 Vide para. 2 Jagadiswarananda Avadhuta Acharya v. Commr. of Police, AIR 1990 Cal 336 (BHAGABATI PRASAD
BANERJEE, J.).

10 Vide para. 2 Jagadiswarananda Avadhuta Acharya v. Commr. of Police, AIR 1990 Cal 336 (BHAGABATI PRASAD
BANERJEE, J.).

11 Commissioner of Police v. Acharya Jagadishwarananda Avadhutha, AIR 2004 SC 2984 : (2004) 12 SCC 770.

12 State of Rajasthan v. Chawla, AIR 1959 SC 544 : 1959 Supp (1) SCR 904.

13 Kovacs v. Cooper, (1949) 336 US 77.

14 Francis v. Chief of Police, (1973) 2 All ER 251 (259)(PC) .

15 Olivier v. Buttigieg, (1966) 2 All ER 459 (462)(PC) ; Gopalan v. State of Madras, (1950) SCR 88 (1901-1).

16 (1949) 336 US 77 (supra).

17 (1948) 334 US 558.

18 (1972) 408 US 104.

19 (1989) 491 US 781.

20 Noise Pollution v. In re., AIR 2005 SC 3136 : (2005) 5 SCC 733; See alsoChurch of God (Full Gospel) in India v. K.
K. R. Majestic Colony Welfare Association, AIR 2000 SC 2773 : (2000) 7 SCC 282; Appa Rao MS. v. Government of
Tamil Nadu, (1995) 1 L.W 319(Mad) ; P.A. Jacob v. Supt. of Police, AIR 1993 Kerala 1.

21 Rabin Mukherjee v. State of W.B., AIR 1985 Cal 222.

22 State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 82.

23 Birangana Religious Society v. State, (1996) 100 CWN 617.

24 Maulana Mufti Syed Barkati v. State of W.B., AIR 1999 Cal 15.

25 New GIDC Housing Association v. State of Gujarat, 1997 (2) Gujarat Law Herald 221.

26 Free Legal Aid v. National Capital Territory, AIR 2001 Delhi 435.

27 Soletan v. De Held, 61 ER 291.

28 State of Rajasthan v. Chawla, AIR 1959 SC 544 : 1959 Supp (1) SCR 904.

29 Francis v. Chief of Police, (1973) 2 All ER 251 (259)(PC) ; Venu v. D.G.P., AIR 1990 Ker 344 (para. 2).

30 Ananta Probha v. Dy. Collector, AIR 1975 Ker 117 (para. 9).

31 Vide Appendix to Author's Law of the Press.

32 Mahendra v. Shah, AIR 1953 MB 236.

33 Babulal v. State of Maharashtra, AIR 1961 SC 884 (888) : (1961) 3 SCR 423. See alsoRamlila Maidan Incident, In
re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.
 413

34 AIR 1971 SC 1667 : (1969) 3 SCC 377.

35 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.

36 Cf. Madhu v. Sub Divisional Magistrate, Monghyr, AIR 1971 SC 2486 : (1970) 3 SCC 746.

37 Madhu Limaye v. SDM, Monghyr, AIR 1971 SC 2486 : (1970) 3 SCC 746.

38 Annadurai, in re, AIR 1959 Mad 63.

39 Cf. Dasappa v. Dy. Commr., AIR 1960 Mys 57.

40 Cf. Brahmanand v. State, AIR 1959 Pat 425.

41 Kartar Singh v. State of Punjab, AIR 1956 SC 541 : 1956 SCR 476.

42 Of course, in Babulal's case, the word 'annoyance' in s. 144 CrPC was held to be related to 'public order', but in
that provision, the relation of the word to 'public order' is quite clear from the context.

43 Coates v, Cincinnati, (1971) 402 US 611; Gooding v. Wilson, (1972) 405 US 518.

44 Kedar Nath v. State of Bihar, AIR 1962 SC 955 : 1962 Supp (2) SCR 769.

45 Babulal v. State of Maharashtra, AIR 1961 SC 884 (888) : (1961) 3 SCR 423. SeeRamlila Maidan Incident, In re.,
(2012) 5 SCC 1 : (2012) 2 SCALE 682.

46 SeeRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

47 State of Bihar v. K. K. Misra, AIR 1971 SC 1667 : (1969) 3 SCC 337.

48 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684. SeeRamlila Maidan
Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

49 Kameswar v. State of Bihar, AIR 1962 SC 1166 : 1962 Supp (3) SCR 838; O.K. Ghosh v. Joseph, AIR 1963 SC 812.

50 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 : 1963 (Supp-1) SCR 789 (supra).

51 Radhey Shyam Sharma v. Post Master General, Central Circle, Nagpur, AIR 1965 SC 311 : (1964) 7 SCR 403.

52 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 : 1963 (Supp-1) SCR 789 (supra).

53 AIR 2003 AP 450.

54 Ry. Board. v. Niranjan, AIR 1969 SC 966 : (1969) 1 SCC 502.

55 From the observations in State of Bihar v. Misra, (1969) 2 SCC 337 (344-45) : AIR 1971 SC 1667, it would follow
that some sort of judicial review, even though subsequent to the subjective order, would be necessary to make the
provision a 'reasonable' restriction. In England, unfettered discretion of the Police or the Executive in this context may
be valid [cf. Kent v. M.PC , (14.5.81, unrep.)]; but in India the expression 'reasonable restriction' in Art. 19(3) of the
Constitution impels judicial review.

56 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (paras. 16-17, 21, 53-57, 64).

57 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684. See alsoRamlila Maidan
Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

58 Babulal v. State of Maharashtra, AIR 1961 SC 884 (888) : (1961) 3 SCR 423.

59 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (paras. 16-17, 21, 53-57, 64); Lowdens v.
Keaveney, (1903) 2 Ir. R. 82 (89); 161 (169).

60 ILR 26 Mad 376.

61 SeeVijayaraghavachariar v. Emperor, ILR 26 Mad 554.

62 See Saiyid Manzur Hassan v. Saiyid Muhammed Zaman, AIR 1925 PC 36.

63 AIR 1970 SC 1885 : (1969) 2 SCR 563.

 414

64 See Jagdish Swarup, Human Rights and Fundamental Freedom, p.114.

65 Ramanathaiyer, Advanced Law Lexicon,3rd Edn.2005, Vol. 3, p. 3754.

66 H.M. Seervai, Constitutional Law of India, 4th Edn., Vol. I, p. 798.

67 From Goodhart on Public Meeting & Processions as extracted in Himat Lal K. Shah v. Commissioner of Police,
Ahmedabad, (1973) 1 SCC 227 - para 64.

68 Cf. Hubbard v. Pitt, (1975) 3 All ER 1 (10)(CA) : (1975) 1 All ER 1056 (1066).

69 Thomas v. N.U.M., (1985) 2 All ER 1 (22). But see News Group Newspaper Ltd. v. SOGAT (No. 2), (1987) 1 ICR
181.

70 Thomas v. N.U.M., (1985) 2 All ER 1 (22). But see News Group Newspaper Ltd. v. SOGAT (No. 2), (1987) 1 ICR
181.

71 Gill v. Carson, (1917) 2 KB 674.

72 Att. Gen. v. Brighton Co-operative Assocn., (1900) 1 Ch. 276.

73 Bellamy v. Wells, (1890) 7 T.LR 135.

74 See Hood Phillips & Jackson, Constitutional & Administrative Law, 8th Edn., Chapter XXVII, para 31 at p. 637.

75 DPP v. Broome, (1974) AC 587.

76 Tynan v. Balmer, (1967) 1 QB 91.

77 Jacobs v. L.C.C., (1950) 1 All ER 737 (744)(HL) .

78 R. v. Clark, (No. 2), (1964) 2 QB 315(CA) .

79 Thomas v. N.U.M., (1985) 2 All ER 1 (22). But see News Group Newspaper Ltd. v. SOGAT (No. 2), (1987) 1 ICR
181.

80 Lowdens v. Keaveney, (1903) 2 IR 82.

81 Harrison v. Duke of Rutland, (1893) 1 QB 142.

82 Hood Phillips (1987), pp. 568-69.

83 (1903) Irish Reports 82.

84 C.C.S.U. v. Min., (1984) 3 All ER 935(HL) ; Wheeler v. Leicester C.C., (1985) 2 All ER 1106(HL) .

85 Cox v. New Hampshire, 312 US 569 (1941).

86 Forsyth County v. The Nationalist Movement, 505 US 123 (1992); Thomas v. Chicago Park District, 534 US 316
(2002).

87 Dicey, Law of the Constitution, 10th Ed., pp. 271-72; Goodhart, Public Meetings and Processions, pp. 169-74.

88 Dicey, Law of the Constitution, 10th Ed., pp. 271-72; Goodhart, Public Meetings and Processions, pp. 169-74.

89 Manzur v. Zaman, AIR 1925 PC 36 (37).

90 Martin and Co. v. Faiz, AIR 1944 PC 33 (35).

91 Manzur v. Zaman, AIR 1925 PC 36 (37).

92 Halsbury, 4th Ed., Vol. 21, para. 419; Chandu v. Nihal Chand, AIR 1950 Bom 193 (para. 3).

93 Martin and Co. v. Faiz, AIR 1944 PC 33 (35).

94 Martin and Co. v. Faiz, AIR 1944 PC 33 (35).

95 Manzur v. Zaman, AIR 1925 PC 36 (37).

 415

96 Sundaram v. R., (1883) 6 Mad 203 (217).

97 Sundaram v. R., (1883) 6 Mad 203 (217).

98 Subbaya v. Falauddin, (1926) 101 I. C. 893.

99 Cf. Vijiaraghava v. R., (1903) 26 Mad 554 (587); Himmat Lal v. Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para,
70); Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 1 (para s. 2, 34).

100 Cf. Lakshmidhar v. Ranglal, AIR 1950 PC 56; Subhani v. Nawab, AIR 1941 PC 21.

101 Gill v. Carson, (1917) 2 KB 674; Att. Gen. v. Brighton Co-operative Assocn., (1900) 1 Ch. 276; Bellamy v. Wells,
(1890) 7 TLR 135; Jacobs v. L.C.C., (1950) 1 All ER 737 (744)(HL) .

102 Martin and Co. v. Faiz, AIR 1944 PC 33 (35); Halsbury, 4th Ed., Vol. 21,, para. 419; Chandu v. Nihal Chand, AIR
1950 Bom 193 (para. 3).

103 Babulal v. State of Maharashtra, AIR 1961 SC 884 (para. 31) : (1961) 3 SCR 423.

104 Shaikh Pirum Bux v. Kalandi Pati, AIR 1970 SC 1885 : (1969) 2 SCR 563.

105 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423.

1 K.V.V.E. Samithi v. State of Kerala, 2004 AIHC 3579(Ker--HC) .

2 Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (para. 32).

3 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423 (para. 31).

4 AIR 2001 AP 173.

5 See also Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423; Himat Lal K. Shah v.
Commr. of Police, AIR 1973 SC 87 : (1973) 1 SCC 227.

6 Satyabdi v. Officer-in-charge, (1968) CrLJ 1519 (1523) Or.

7 Manzur v. Zaman, AIR 1925 PC 36 (37).

8 Martin and Co. v. Faiz, AIR 1944 PC 33 (35).

9 AIR 1944 PC 33 (supra).

10 Manzur v. Zaman, AIR 1925 PC 36 (37); Martin and Co. v. Faiz, AIR 1944 PC 33 (35).

11 Manzur v. Zaman, AIR 1925 PC 36 (37).

12 Martin and Co. v. Faiz, AIR 1944 PC 33 (35).

13 Manzur v. Zaman, AIR 1925 PC 36 (37).

14 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423 (para. 31).

15 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423 (para. 31).

16 R. v. Clark, (no. 2), (1964) 2 QB 315(CA) .

17 Gopal Charan v. Daitary Nandy, AIR 1961 Ori 167.

18 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 32-33).

19 AIR 1925 PC 36.

20 AIR 1970 SC 1885 : (1969) 2 SCR 563.

21 ILR 26 Mad 554.

22 H.M. Seervai, Constitutional Law of India, 4th Edn., Vol. I, at pp.796-797.

 416

23 AIR 1925 PC 36 (supra).

24 AIR 1970 SC 1885 : (1969) 2 SCR 563 (supra).

25 AIR 1954 SC 728 : (1955) 1 SCR 707.

26 Prof. de Smith, Constitution and Administrative Law, 2nd Edn., pp. 500-501.

27 Mathai v. State of Travancore, ILR 1953 Trav-Coc 930 : AIR 1954 TC 47(supra).

28 State v. Mangala, AIR 1957 All 753.

29 Motilal v. Emp., AIR 1951 Bom 513. See also Satyayug Party v. Government of A.P., AIR 1996 AP 218.

30 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423 (para. 31). See alsoRamlila Maidan
Incident, In re., (2012) 5 SCC 1; State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 8 SCC
684.

31 Bapurao v. State, AIR 1956 Bom 300.

32 It is submitted that the approach in Re Annadurai, AIR 1959 Mad 63, that deficiencies in the impugned statute in
these respects can be cured by the administrative practice in the matter of application of the Act is, prima facie,
untenable.

33 Madhu v. Sub Divisional Magistrate, Monghyr, (1970) 3 SCC, 746 (757) : AIR 1971 SC 2486.

34 Inderdeo v. State, AIR 1951 Pat 252.

35 It is submitted that the approach in Re Annadurai, AIR 1959 Mad 63, that deficiencies in the impugned statute in
these respects can be cured by the administrative practice in the matter of application of the Act is, prima facie,
untenable.

36 Rajnarain v. Dt. Magistrate, AIR 1956 All 481. See alsoRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2
SCALE 682.

37 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.

38 Parate v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423 (supra).

39 Sundaram v. R., (1883) 6 Mad 203 (217).

40 See Author's Criminal Procedure Code.

41 Gopal v. Daitary, AIR 1961 Or 167 (para. 2); In re Sattar, AIR 1961 Mys 57 (para. 21) (DB).

42 E.g., Ratilal v. State of Bombay, AIR 1954 SC 388 : 1954 SCR 1055; Commr., H.R.E., v. Lakshmindra, AIR 1954 SC
282 : 1954 SCR 1005 (para. 19); Ramanuja v. State of T. N., AIR 1 1973 SC 1586.

43 Commissioner of Police v. Acharya Jagadishwarananda Avadhutha, AIR 2004 SC 2984 : (2004) 12 SCC 770 (by
Majority).

44 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para. 21).

45 AIR 1950 Bom 192(FB) .

46 AIR 1925 PC 36 (supra).

47 AIR 1925 PC 36 (supra).

48 AIR 1970 SC 1885.

49 See Author's Criminal Procedure Code.

50 E.g., Ratilal v. State of Bombay, AIR 1954 SC 388 : 1954 SCR 1055; Commr., H.R.E., v. Lakshmindra, AIR 1954 SC
282 : 1954 SCR 1005 (para. 19); Ramanuja v. State of T. N., AIR 1 1973 SC 1586.

51 E.g., Ratilal v. State of Bombay, AIR 1954 SC 388 : 1954 SCR 1055; Commr., H.R.E., v. Lakshmindra, AIR 1954 SC
282 : 1954 SCR 1005 (para. 19); Ramanuja v. State of T. N., AIR 1 1973 SC 1586.
 417

52 E.g., Ratilal v. State of Bombay, AIR 1954 SC 388 : 1954 SCR 1055; Commr., H.R.E., v. Lakshmindra, AIR 1954 SC
282 : 1954 SCR 1005 (para. 19); Ramanuja v. State of T. N., AIR 1 1973 SC 1586.

53 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para. 21).

54 Chandu v. Nyahalchand, AIR 1950 Bom 132.

55 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para. 21).

56 Gopal v. Daitari, AIR 1961 Or 167 (para. 2); In re Sattar, a. 1961 Mys 57 (para. 21) (DB).

57 Vijiaraghava v. R., (1403) 26 Mad 554 (587).

58 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para. 21).

59 Parthasarathi Iyengar v. Chinnakrishna Iyyangar, ILR (1882) 5 Mad 304.

60 Sundaram Chetti v. Queen, ILR (1883) 6 Mad 203(FB) .

61 Since it was sanctioned by the Puranas, such as the Markandeya Purana, the Kalika Purana, Devi Bhagavat.

62 Commissioner of Police v. Acharya Jagadishwarananda Avadhutha, AIR 2004 SC 2984 : (2004) 12 SCC 770.

63 Hickman v. Maisey, (1900) 1 QB 752 (757-58).

64 Dixon v. Atfield, (1975) 2 All ER 265 (268)(QBD) ; Hubbard v. Pitt, (1975) 1 All ER 1056 (1061).

65 Hickman v. Maisey, (1900) 1 QB 752 (757-58).

66 Lowdens v. Keaveney, (1903) 2 IR 82 (89).

67 Hubbard v. Pitt, (1975) 1 All ER 1056 (1061).

68 Of course, it may be legalized by statute, e.g., if it is done in connection with a trade dispute under the Trade
Unions Act .

69 Beatty v. Gilbanks, (1882) 15 Cox 138.

70 Beatty v. Gilbanks, (1882) 15 Cox 138.

71 (1999) 2 AC 240.

72 Raymond v. Cook, (1958) 3 All ER 407.

73 Justice T. S. Doabia, Environmental & Pollution Laws in India, 2005 Edn., Vol. I, p. 1047.

74 Babulal v. State of Maharashtra, AIR 1961 SC 884 (para. 31).

75 Chandu v. Nyahalchand, AIR 1950 Bom 132.

76 Muthialu v. R., (1880) 2 Mad 141 (142).

77 Vijiaraghava v. R., (1903) 26 Mad 554 (587).

78 Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (para. 27).

79 Lowdens v. Keaveney, (1903) Ir R 82; Beatty v. Gleinseer, (1884) 52 LT 304.

80 See Lowdens v. Keaveney, (1903) 2 Ir R 82 (supra); see also R v. Clark No.2, (1964) 2 QB 315.

81 As in cases, such as Jafar v. Krishnan, AIR 1930 Mad 701; Jawand v. Muhammad, (1920) ILR 1 Lah 140.

82 As in cases, such as Sadagopachariar v. Rama, (1902) 20 Mad 376 [affmd. by (1907) 34 IA 93 PC]; Jalil v. Ram,
AIR 1931 All 341; Vijaraghava v. Emp., (1903) 26 Mad 55.

83 Justice T. S. Doabia, Environmental and Pollution Laws in India, 2005 Edn. p. 1047.

84 Mc.Kenzie v. Powley, (1916) SALR 1(Australia) .

 418

85 Pope v. Peale, (1904) 24 CLT 131(Canada) .

86 Motion v. Mills, (1897) 13 ITR 427.

87 Justice T. S. Doabia, Environmental and Pollution Laws in India, 2005 Edn. p.1050.

88 Jalil v. Ramnath, AIR 1931 All 341 (344-45).

89 Jalil v. Ramnath, AIR 1931 All 341 (344-45).

90 Chandu v. Nyahalchand, AIR 1950 Bom 132.

91 Piru v. Kalandi, AIR 1970 SC 1885 : (1969) 2 SCR 563 (para. 14).

92 Shaik Piru v. Kalandi, AIR 1964 Or 18 (paras. 10, 11).

93 Shaik Piru v. Kalandi, AIR 1964 Or 18 (paras. 10, 11).

94 Shaik Piru v. Kalandi, AIR 1964 Or 18 (paras. 10, 11).

95 Indulal v. State, AIR 1963 Guj, 259 (paras. 19, 24).

96 Including 'the Mograhat' case, p. 39, infra.

97 Noise Pollution (V), In re., AIR 2005 SC 3136 : (2005) 5 SCC 733.

98 Jalil v. Ramnath, AIR 1931 All 341 (344-45).

99 To covet their votes. This is an instance of communalism--not 'secularism'. (As to the irrationality of such sentiments.
see Sulaiman, J.'s observations quoted at p. 37 post).

100 Jalil v. Ramnath, AIR 1931 All 341 (344-45).

101 Manzur v. Zaman, AIR 1925 PC 36.

102 Jalil v. Ramnath, AIR 1931 All 341 (344-45).

103 Jalil v. Ramnath, AIR 1931 All 341 (344-45).

104 Sundram v. R., (1882) 6 Mad 203 (217).

105 Quareshi v. State of Bihar, (1959) SCR 629 : AIR 1958 SC 731.

106 Sundram v. R., (1882) 6 Mad 203 (217).

107 Sundram v. R., (1882) 6 Mad 203 (217).

108 Including 'the Mograhat' case, p. 39, infra.

109 Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (para. 27).

110 Manzur v. Zaman, AIR 1925 PC 36; Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 71; Abdul v. State
of U.P., AIR 1984 SC 882 : (1984) 2 SCC 138.

111 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227.

112 The leading pre-Constitution decisions have been approved by the Supreme Court in Ghulam v. State of U.P., AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 27, ff).

113 Muthialu v. R., (1880) ILR 2 Mad 140 (141-42).

114 Sundram v. R., (1882) 6 Mad 203 (217).

115 Manzur v. Zaman, AIR 1925 PC 36.

116 Manzur v. Zaman, AIR 1925 PC 36.

 419

Manzur's case
Though this was a case of one sect of the Muslims (Sunnis) objecting to the right of another sect of
the same religion (Shiahs) to, conduct a highway procession with those observances which were
sanctioned by the religious practices of the processionists, the law was generally laid down by the
Privy Council, as applicable to all religious processions.
Music being an essential part of Hindu religious worship and ancillary observances, it is natural that
the High Courts, following the Privy Council decision, would relentlessly explode the bogy of 'music
before the mosque'.
Janki's case
IV. In Janki v. Karamat ,1 the right of Hindu processionists with music before a mosque was decreed in
a suit against the Muslims.
Jalil's case
V. This was followed by another Allahabad case,2 in which a Division. Bench, including SULAIMAN J.,
ruthlessly rejected the objection of the Muslims that the Hindu processionists must stop their music
while passing by roadside mosques.
We should pause a while to mark the words in which SULAIMAN, J. sums up the law on this question,
not only because of his legal eminence (subsequently elevated to the Federal Court) but also because
he was a true Musalman, who was competent to cut down Muslim extravagances in order to come to
a reasonable adjustment with the legal rights of the Hindu community. So said the learned judge:
"There is a right in every community to take out a religious procession, with the appropriate
observances, along a highway. This is an inherent right and does not depend upon the proof of any
custom or a long established practice. The right is independent of any long standing tradition and is
not lost by mere abstention or non-exercise of it for a number of years. An inquiry as to, the existence
or non-existence of an old custom is therefore unnecessary and irrelevant..." (p. 344). 3
"The taking out of a procession accompanied with music, whether as a part of religious worship or not,
is within the civil rights of a community..." (p. 344).4(This civil right has been elevated to a
constitutional right by Art. 25 of the Constitution).
"Worshippers in a Mosque or Temple which abuts on a highway have no right to compel the
processionists to stop the music completely, while passing a Mosque or Temple on the ground that
there was continuous worship inside it. Even if music, whether religious or not, offends against the
religious sentiments of another community, it cannot be objected to on that ground. The stopping of
the music would offend the religious sentiments of the processionists just as much as its continuance
may offend the religious sentiments of the other. There can therefore be no right to insist on its
complete stoppage." (p. 344).5
Owing to the foregoing uniform course of judicial rebuff, there was a lull in the cry of 'music before the
mosque' for several decades but, it was revived after the Partition of India even though the militant
section of Muslims had gone over to Pakistan after creating a 'homeland' for themselves on the basis
of their religion and its alleged incompatibility with the Hindu religion. Curiously, the revival of this
empty hoax was due to the fanning of Muslim communalism and the vying with each other to appease
'Muslim sentiments, on the part of the Hindu political parties, with the object of winning over the votes
of those Muslims who opted for India at the Partition and whose votes came to form the decisive block
at the elections since the Hindus themselves were divided into numerous parties. Be that as it may,
reference to the post-Constitution decisions will show how the Muslims were encouraged to rake up
pretensions which had been finally silenced by the courts of law. Another notable point is that in none
of these cases, many of which were decided by Muslim judges, there was any reference to the Koran
or any other Muslim scripture as banning music as such.
Chandu v. Nyahalchand
 420

VI. The first reported decision after Independence was, of course, in respect of a non-religious
procession, viz., a wedding procession.6 But it deserves mention as it was opposed, while passing by
an abutting mosque, by the Muslims, because it was accompanied by music. A Muslim JUDGE
(CHAGLA, C.J.), turned down the objection on the ground that the processionists were making 'a
reasonable user' of the public highway and that music as such could not constitute a public nuisance.
The existence of a mosque by the roadside 'was held to be no ground for interference with the said
right of the processionists'.
Abdul Sattar's case
VII. The next post-Constitution decision which deserves mention is that of a Division Bench of the
Mysore High Court, which included a Muslim judge.7
This case is remarkable in as much as the procession was a non-religious procession which was part
of a Government-sponsored celebration of the centenary of the Sepoy Mutiny which was regarded as
the first step towards the Independence of India. Its only fault was that it was accompanied with music.
When it reached the site of an abutting mosque, it was obstructed by a violent Muslim mob who
contended that no procession with music could pass by the side of the mosque, at any time.
The High Court upheld conviction of the oppositionists as members of an unlawful assembly and
declared that the processionists had a lawful right to pass along the public highway unarmed and
peaceably, though accompanied with music.
Piru's case
VIII. The next decision which deserves mention in this context is the case of Piru Bux.8
The immediate cause of act ion was the obstruction of a Hindu religious procession accompanied with
music but the litigation which ensued comprised both religious and non-religious processions in as
much as the Muslims objected to the play of music while passing by abutting mosques by any
procession whatever and at any point of time. The Hindus brought this suit for a declaration that they
had a right to take out religious or non-religious processions with music along the public highway,
without interference from the Muslims who had mosques abutting the highway. The suit was decreed
but the Courts differed as to the form of the order:

58a)  The Munsif subjected the declaration to the condition that the Hindus must
not play any music while passing by the side of the mosques, between the space
marked by pillars or stones.
60b)  The Subordinate judge, on appeal, modified this absolute prohibition, but
imposed the condition that (i) there should be no beating of drum at all; and (b) that other
music might be played only 'in a low sound'.
Hindus not obliged to lower the sound of music before the Mosque even when there is no
prayer there

42c)  The High Court, on further appeal, held that the two restrictive conditions,
i.e., exclusion of drums and playing at a low sound were unreasonable restrictions, upon
their fundamental right under Art. 19(1)(b). The High Court deleted these two conditions
and affirmed the declaration subject only to the orders of the Magistrate and the Police
to make necessary orders for preventing obstruction of public thoroughfare or breach of
the peace. The High Court observed that subject to such power of the authorities, "the
plaintiffs have an absolute right to take out processions with music in all the public
thoroughfares and the defendants cannot insist upon their complete stoppage of the
music or to carry the same in a low sound."
16d)  The foregoing observation of the High Court was not disturbed by the
Supreme Court, even though the Supreme Court widened the ambit of the power of the
Magistrate a little further, following the declaration given in Manzur's case9, by
adding--"subject to the Magistrate's directions under any law for the time being in force
and the rights of the public".
 421

The Mograhat case

VIII. Let us now advert to an unreported decision of the Calcutta High Court, hereinafter referred to as
the 'Mograhat case'10. Though not yet reported because of its bulk, this case is important on the
present subject because--

59a)  In this judgment11, all the previous authorities over a century were reviewed
and the conclusions were arrived at on the foundation thereof.
61b)  In this case, the Government of West Bengal, the Government of India, and
the Police authorities were impleaded. But none of them appealed from this decision, so
that the propositions laid down in this judgement are binding on them.
43c)  The facts of this case12 also demonstrate how a procession with music was
tolerated by the Muslims from time immemorial came to be resisted by them with the
support of the Police and administrative authorities three decides after the Partition of
India shamefacedly throwing to the winds dozens of judicial decisions of the highest
authority.
The facts, in this case13 were as follows:
The litigation related to the worship of two Deities--Kali and Jagadhatri--by the Hindus (Petitioners) in
a group of adjoining villages within P.S. Mograhat in the State of West Bengal.
A. As regards Kali Puja, the immersion procession, with the beating of drums etc., used to be
conducted by the disputed highway--the only route to a water reservoir, from time immemorial, without
obstruction until 1981.
In 1981, when the immersion procession was passing by the side of a mosque abutting the road,
some members of the Muslim community obstructed the procession, objecting to the playing of music
before the mosque which obliged the processionists to retreat, as the Police did not assist them.
Subsequently, the Police authorities issued a licence, laying down the following conditions inter alia,
subject to which the procession would be allowed to be taken, on 30-10-1981:

60a)  The procession shall start at 6 P.M. and, cease at 10 P.M. on the fixed date.
62b)  It must proceed along the prescribed route of the public road.
44c)  No music shall be played 'near' any place of public worship.
Since the disputed mosque stood by the side of the prescribed route, the effect of term (c) was that
the processionists could not play music over a large part of the route, and at any time during the fixed
time of the procession. The processionists, therefore, refused to take out the immersion procession on
the given date, whereupon the local officers forcibly lifted the idol and threw it into an adjoining filthy
pond. Over and above that, the Police arrested and prosecuted the organisers of the Puja on charges
of unlawful assembly, rioting and the like.
B. As regards the later Jagadhatri Puja, the Officer-in-charge of the local Thana refused to receive the
Petitioners' application for permission to conduct the immersion procession and when the Petitioners
approached the superior officers, the latter, without giving any written order, verbally told the
Petitioners that no permission would be granted unless the processionists gave an undertaking not to
beat drums near the mosque.
The Petitioners moved the Calcutta High Court under Art. 226 of the Constitution for various reliefs. A
single judge allowed the Petition in part as follows.
It was held in this case14 that--

45i)  The right to conduct a procession along a highway is a fundamental right,

under Arts. 19[(]1[)][(]b[)] and 25 of the Constitution of India (226, 241). 15
 422

43ii)  A total or absolute prohibition of this right as to a religious procession cannot

be imposed (227-28), but only reasonable restrictions may be imposed in the interest of
public order (228).16
27iii)  Thus, the Police may regulate the timing of a procession when it has to pass
by a road-side mosque; but they cannot prohibit the processionists to play music even
though the procession is allowed at a time outside the usual prayer time at the mosque
(12, 32, 324, 236).17
19iv)  The immersion procession of a Deity worshipped by the Hindus, is a part of
the Hindu religion--the right to practise which is guaranteed by Art. 25(1) (227, 229).
Bogey of breach of the peace
Of course, the right of procession, whether under Art. 19(1)(b) or under Art. 25, can be subjected to
reasonable restrictions, in the interest of maintaining public order. But such restrictions, in order to be
constitutionally valid, must have a proximate relation to public order and must also be reasonable.
It would be convenient to deal with this question under two heads:

1.  What the Police cannot do in the name of apprehension of breach of the
peace.
1.  What the Police should do when lawful processionists are opposed by
wrong-doers.
A. What the Police cannot do in the name of apprehension of breach of the peace
As the Supreme Court has observed18, 'imminent danger to public peace' is a 'facile ground' resorted
to by the Police to do, things which it cannot do, under the law 19 (para. 32).
Ghulam's case
A study of the Supreme Court decision20 and the mass of previous decisions which have been
reviewed therein will lead to the following propositions as to what the Police cannot do under colour of
maintenance of the peace when a lawful procession is objected to by wrong-doers.
Firstly, the Police must first ascertain who is in the right and who is in the wrong. The Police have no
power nor duty to suppress the lawful exercise of a legal right simply because obstruction on the part
of wrongdoers might lead to a breach of the peace.
Sundram's case
The reason is quite patent, namely, that it is the duty of the administrative and Police authorities to
maintain the law by upholding legal rights and not by suppressing them. 21 If the exercise of lawful
rights is threatened or apprehended, the authorities should bind down these who intended to break the
law rather than the rightful persons. The observations of TURNER, C.J., in Sundaram's case22 on this
point are memorable:
"Where rights are threatened, the persons entitled to them should receive the fullest protection the law
affords them and circumstances admit of. It needs no argument to prove that the authority of the
Magistrate should be exerted in the defence of rights rather than in their suspension; in the repression
of illegal rather than in interference with lawful acts. If the Magistrate is satisfied that the exercise of a
right is likely to create a riot, he can hardly be ignorant of the persons from whom disturbance is to be
apprehended, and it is his duty to take from them security to keep the peace."23
Secondly, the Police or administrative officers cannot abdicate their authority 24 nor play the role of an
impotent25 before a band of goondas who threaten to disturb the lawful exercise of legal rights
belonging to other people.26
The authorities cannot refuse to aid the lawful exercise of rights on the plea that the forces at their
command would not enable them to meet the 'goondas;'27 and to protect the rightful persons. To
prevent the lawful processionists by any prohibitory order on such plea would constitute an 'abdication'
on the part of the authorities.
 423

In the words of TURNER, C.J., in Sundram's case (p. 225):28

"The prohibitory order was dictated by the Magistrate's apprehension, that disturbance would attend
the exercise of the right; but from whom was disturbance to be apprehended except from the party
that opposed the exercise of the right? Such an order issued under such circumstances involves an
admission that lawlessness is anticipated and that at the time the executive is not in a position to
afford adequate protection. When such orders are repeated, their justification, the preservation of the
public peace, is not so obvious to those whose rights they interfere with, as are their results. The
impression is created that the authorities are powerless against the class from whom violence is
apprehended"29:
In Falauddin's case30 the facts were--
Falauddin's case
The Hindus of a certain place, applied for leave to take procession along the streets and the
Magistrate issued an order under s. 144 of the Criminal Procedure Code, forbidding the Hindus to
conduct that procession, holding that "the likelihood of rioting and bloodshed was too great to allow
them to exercise their lawful rights". The High Court held that this was--
"a confession of impotence on the Part of the authorities. The District Magistrate is the person who is
to look after the peace of his district and naturally in cases of sudden emergency it may be necessary
to restrict a person from exercising a perfectly lawful right. But it should not be necessary to prevent
that person not only on a particular occasion in the near future, but for all time, from exercising that
right, because it would be too much trouble to render him adequate protection against persons who
intended to disobey the law.........for the Govern ment to state that they are not prepared to prevent the
infraction of the law and to restrain lawbreakers from interfering with lawful rights is practically to
abdicate all authority"31(510).
Nor can the Police refuse to assist the lawful exercise of rights on the ground that the oppositionists
constitute the majority. In the words of the Supreme Court in Ghulam's case (para. 26)32:
"It would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with
the lawful exercise of the right by a party on a consideration that those who threaten to interfere
constitute a large majority and it be more convenient for the administration to impose restrictions
which affect only a minor section of the community rather than prevent a larger section more
vociferous and militant"(para. 26).33
Section 144, CrPC cannot be imposed onbothparties
Thirdly, the police cannot bind down the lawful processionists even by such order under s. 144 of the
Criminal Procedure Code as might operate on both parties.
Instead, it is the duty of the Police to bind down wrongdoers who threaten a disturbance of the public
order.
B. What the Police should do when lawful processionists are opposed by wrongdoers
So far we have seen what the Police cannot do under the colour of preventing a breach of the peace.
If they cannot take the path of least resistance by suppressing the exercise of legal rights by the lawful
processionists, the question arises--what should then the police do in order to prevent a breach of the
peace by the wrongful oppositionists?
Ismail's case
The answer has been clearly and emphatically given by a Division Bench of the Calcutta High Court in
Ismail v. Barkat Ali .34 It cannot be overlooked that this Division Bench was presided over by
WALMSLEY & SUHRAWARDY, J, and that though it was not a case of clash between Hindu and
Muslim interests, it was a case of conflict between two groups of Muslims over their right to the
conduct of prayers in the same mosque. In this case, 35 the Magistrate issued directions against the
first party instead of against the second party, who were in the wrong. Setting aside that order,
SUHRAWARDY, J., directed:
 424

" ...... the proper course that the Magistrate ought to follows is, ...... if he finds on the evidence that the
second party is in the wrong ...... he ought to bind down the second party restraining them from
committing any act which may lead to a breach of the peace".
This observation was approved by the Supreme Court in Gulam's case (para. 30)36.
Falauddin's case
An English judge in the later Madras case of Subbayya v. Falauddin ,37 has added one other course to
the duty of the Police in such circumstances. This was a direct case of the Muslims resisting a Hindu
religious procession with music along a public street adjoining a mosque. The Magistrate sought to cut
the Gordian knot by issuing an order under s. 144, Cr. P.C. against the Hindus so that they could not
take out the procession, to which their legal right was well-established. Disapproving of that order, the
High Court directed:
"If the Hindus apply again to take procession and give reasonable notice to the authorities that they
propose to do so,...it would be incumbent on the authorities to take such action as will protect the
rights of the Hindus. The Muhammadans may have to be bound over to keep the peace or it may be
necessary to introduce armed force to compel them to do so (510)".38
Of course, in this case the High Court made a distinction between two situations:

61a)  A sudden emergency (when a riot breaks out all of a sudden) without the
Police getting time enough to prepare themselves with adequate force to quell such riot
at any cost. In such a case, it may be necessary to restrain the lawful party from
exercising their rights, for a temporary period, so as to pass over the tension.
63b)  The other is the normal situation where the Police has time enough to
prepare themselves. In the Magrahat case,39 the Police and the administrative authorities
had ample time and opportunity to meet any eventual breach of the peace by the Muslim
wrong-doers.
To such a situation, the observations of the Bench in Falauddin's case40 are that--
" ...... it should not be necessary to prevent that person (i.e., the person exercising a perfectly lawful
right) not only in a particular occasion in the near future but for all time from exercising that right
because it would be too much trouble to render him adequate protection against persons who intend
to disobey the law".41
Magrahat case
That is exactly what was sought to be done by the Police and the Magrahat case,42 by imposing the
condition of stoppage of music before the mosque in the licence, as regards Kali Puja, and by refusing
to issue a licence at all regarding Jagadhatri Puja. That the Police, in that case, would never allow the
Hindus to exercise their lawful rights or suppress the Muslim hooligans would be evident from the fact
that even three months thereafter, they refused to issue licence for immersion of the Saraswati image,
which was due on the 30th January, 1982.
On the occasion of the Kali Puja they did, in fact, requisition additional forces from the District
Headquarters, but that was employed for preventing the processionists from taking out procession
with music, and, when they refused, in defiling the Kali images and throwing them into the ponds
(dobas), which was patently beyond the jurisdiction or powers of the Police under any law on the
earth.
Re Sattar
In the Mysore case,43 the procession was to celebrate the Sepoy Mutiny; and Muslims objected to the
play of music by the procession while passing by the road-side mosque "at any time" during the day
(para. 9),44 and flung brick-bats, stones etc., against the procession. The Police dispersed them by
opening fire (para. 2)45 and then arrested some 40 Muslims. The High Court held that the right of the
procession to use the highway, with music, was an inherent right, protected by Art. 19(1)(b) of the
 425

Constitution and that the Muslims were wrongdoers and members of an unlawful assembly.
Consequently, the conviction of some 25 Muslim accused under s. 148, I.P.C., was affirmed.
A survey of the preceding authorities would lead to the following conclusions:
Summary of Police duties to maintain peace

46i)  If the Muslims object to the play of music by lawful processionists, it is the
Muslims who should be bound down to observe the peace. 46
44ii)  Anybody who interferes with the lawful exercise of the Hindu processionists
to play music as a part of their religious practice, would be a wrongdoer and if such
resistance is offered by a gang of men, say, by Muslims, whether on the ground of
annoyance or otherwise, they would be guilty of the offence of unlawful assembly, under
s. 141 of the Indian Penal Code .47
28iii)  If necessary, the armed forces should be employed to compel the
oppositionists to keep the peace48; or to disperse the Muslim gathering by opening fire, if
necessary, and to arrest members of the unlawful assembly. 49
20iv)  It is the duty of the Police and the Administration to give all help and
protection to the lawful processionists.50
16v)  A reasonable solution can be made "by either postponing the hours of
prayer, when possible, or regulating the time of the procession".51 The Hindu
processionists cannot be barred from playing music before the mosque at any time
during 24 hours on the ground that there was continuous worship at the mosque.52[See
ante].
Religious processions cannot be totally banned
Some people occasionally advocate the banning of all religious processions, forgetting that would
involve the violation of a fundamental right guaranteed by Arts. 19(1)(b) and 25. The only relevant
ground in which it may be 'reasonably restricted' is public order [as provided in Cl. (3) of Art. 19]. Even
the preservation of 'communal amity' or inadequacy of the police force or administrative convenience
of avoiding a clash is no legitimate ground for suppressing the lawful exercise of the fundamental right
of the processionists. The question involved is not political but legal and constitutional, namely, the
effect of guaranteeing certain rights as fundamental rights of citizens (individually as well as
collectively).
Communal amity is, no doubt, indispensable to maintain the unity of the Nation, as envisaged in the
Preamble, but how that is to be achieved is laid down in that very Preamble, namely, by fostering a
spirit of fraternity or brotherhood amongst the communities living in India. The minorities shall be
unable to participate in this brotherhood so long as their interests or patronage lie outside India. 53 They
must appreciate that the Constitution of India has guaranteed fundamental rights to safeguard the
rights of the minority community against aggression by a majority Government. These rights have to
be enforced not only to protect Hindu religious processions but also to protect Muslim Muharram or
Tazia processions.
The Preamble of our Constitution assures liberty of worship to every citizen in order to maintain
communal amity and that is why it is guaranteed as a fundamental right in Art. 25(1).
Anybody who resists the exercise of a fundamental right is a wrong-doer, whether he belongs to the
majority or a minority community. It is the duty of the State to suppress such wrong-doers 54, and the
State can interfere with the lawful exercise of a fundamental right only if that is justified by a social
interest specified in the relevant exception clause in Art. 19.55 As stated earlier, the relevant ground for
social control, in the case of a religious procession, is 'public order' as mentioned in Cl. (3) of Art. 19 56
or Cl. (1) of Art. 25. It would be unconstitutional on the part of the State to interfere on any other
ground, however plausible that may be,--such as communal amity or the 'sentiments' of the minority
community.
If the State inteferes with the exercise of the fundamental rights of any individual or group of
individuals on such extra-constitutional grounds, that would be, in reality, a surrender to the
 426

intolerance of the oppositionists. As the Supreme Court has observed, 57 in relation to the cognate
fundamental freedom of expression, the State has no right or duty to surrender to intolerance:
"...freedom of expression cannot be suppressed on account of threat of demonstration and
processions or threats of violence. That would tantamount to negation of the rule of law and a
surrender to blackmail and intimidation. It is the duty of the State to protect freedom of expression
since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the
hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression"
(para. 51).58
"Freedom of expression which is.......constitutionally protected, cannot be held to ransom by an
intolerant group of People. The fundamental freedom under Art. 19(1)(a), can be reasonably restricted
only for the purposes mentioned in Art. 19(2) and the restriction must be justified on the anvil of
necessity and not the quicks and of convenience or expediency ........." (para. 53). 59
The foregoing principles are as true as regards the fundamental right of assembly as that of freedom
of expression. So did the Supreme Court in Ghulam's case,60 which was a case relating to the right of
procession, approve of the observation in Sundram's case61:
"The Prejudices of particular sects ought not to influence the law".62
It would be an eye-opener to those political leaders who seek to support Muslim intolerance in the
name of 'Secularism' to see what TURNER C.J., a celebrated English judge, presiding over a Full
Bench, said during the British administration which was described as completely neutral and impartial
in matters of religion:
"It may well be that in those districts in which the Muhammadan supremacy was more or less
permanent, Muhammadan bigotry enforced respect to the religion of the conquerors, and that, even
when their supremacy ceased, the adherents of the creed compelled a concession of their
prejudices... But with reference to these...privileges claimed...I may observe that they had their origin
in times when a State religion (i.e., Muslim) influenced the public and private law of the country, and
are hardly compatible with the principles which regulate the British administration, the equal rights of
all citizens, and the complete neutrality of the State in matters of religion" (p. 217).63
What Secularism means.
The same principle of neutrality and equality has been guaranteed in Art. 25(1) and this cannot be
dislodged by subsequently inserting the word 'secular' in the Preamble.
Secularism is not an anti-religious doctrine in spite of its emphasis on absolvent of politics from
religion and theocratic society is not the solitary antonym of secular society. 64
Secularisation is a process of decline in religious act ivity, belief, the ways of thinking and in
reconstructing the institution. Secularism is a political ideology strictly may not accept any religion as
the basis of State action. There is a difference between secularism and secularisation. Secularisation
is a process of decline of religious act ivity, belief, ways of thinking and reconstructing the institution.
Though secularisation is a political ideology and strictly may not accept any religion as the basis of
State action, or as the criteria of dealing with citizens, the Constitution of India seeks to synthesise
religion, religious practice or matters of religion which are not essentially an integral part of religion;
secularism therefore consciously denounces all forms of supernaturalism or superstitious beliefs or
actions and act s which are not essentially or integrally matters of religion or religious belief or faith or
religious practices. In other words, non-religious or anti-religious practices are antithesis to secularism
which seeks to contribute in some degree to the process of secularisation of matters of religion or
religious practices.65
Political leaders should remember that the policy of the State under the secular Constitution of India
should be one of complete neutrality between different religions. 66
The term "secularism" has several shades of meaning. A secular State means, first of all, that there is
no official religion. Here "Secular State" is in contradistinction to a "theocratic State" which professes
official support to a given religion. A secular State may actively promote non-religiosity or it may treat
 427

all prevailing religions with equal respect. Indian Constitution has not envisaged secularism as
equivalent to promoting non-religiousness and has confined Art.28(1) to institutions wholly maintained
out of State funds. It has proclaimed respect for all religions. Secularism therefore is susceptible to
positive meaning that is, developing understanding and respect towards different religions. The
essence of secularism is non-discrimination of people by State on the basis of religious differences. 67
In S.R. Bommai v. UOI ,68 the Court said: "Secularism is thus more than a passive attitude of religious
tolerance. It is a positive concept of equal treatment of all religions. This attitude is described as one of
neutrality towards religion or as one of benevolent neutrality. This may be a concept evolved by
Western liberal thought, it may be, as some say, an abiding faith with the Indian people at all points of
time. That is not material. What is material is that it is a constitutional goal and basic feature of
Constitution as affirmed in,69 any step inconsistent with the constitutional policy is, in plain words,
unconstitutional. This does not mean that the State has no say whatsoever in matters of religion. Laws
can be made regulating the secular affairs of temples, mosques and other places of worship and
Maths.70 The power of Parliament to reform and rationalise the personal laws is unquestioned. The
command of Art.44 is yet to be realised".
Making of a nation State involves increasing secularisation of society and culture. Secularism
operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for
universal tolerance due to its historical and cultural background and multi-religious faith.
Secularisation in the Indian context bears positive and affirmative emphasis. Religion with secular
craving for spiritual tolerance have flourished more and survived for longer period in human history
than those who claimed to live in a non-existent world of their own. Positive secularism, therefore,
separates the religious faith personal to men and limited to material, temporal aspects of fellowship. It
does not believe in hand back either into the country's history or seek shelter in its spiritual or cultural
identity de hors the man's need and for full development. It moves mainly around the State and its
institutions and therefore, political in nature.71
In Ziyauddin Burhannudin Bukhari v. Brijmohan Ramdas Mehra ,72 court said: "The secular State rising
all differences of religious attempts to secure the good of all its citizens irrespective of their religious
beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and
creeds. MAITLAND has pointed out that such a State has to endure, through its law, that the existence
or exercise of a political or civil right or the right or capacity to occupy any office or position under it or
to perform any public duty connected with it does not depend upon the profession or practice of any
particular religion".
"Secularism" is not to be confused with communal or religious concept of an individual or a group of
persons. It means that the State should have no religion of its own and no one could proclaim to make
the State have one such or endeavour to create a theocratic State. Persons belonging to different
religions live throughout the length and breadth of the country. Each person, whatever be his religion,
must get an assurance from the State that he has the protection of law freely to profess, practise and
propagate his religion and freedom of conscience. Otherwise, the rule of law, will become replaced by
individual perceptions of one's own presumptions of good social order.
Religion cannot be mixed with secular act ivities of the State, and fundamentalism of any kind cannot
be permitted to masquerade as political philosophies to the detriment of the larger interest of the
society and basic requirements of a welfare State. It was held that "Unfortunately, of late, vested
interests fanning religious fundamentalism of all kinds vying with each other, are attempting to subject
the constitutional machineries of the State to great stress and strain with certain quaint ideas of
religious priorities, to promote their own selfish ends, undeterred and unmindful of the disharmony it
may ultimately bring about and even undermine national integration achieved with much difficulties
and laudable determination of those strong-spirited savants of yesteryear. 73
'Regulation of time and place of procession, how far is it legitimate'
It is an established principle of constitutional jurisprudence that no fundamental right is absolute and
that a guarantee of even the most precious fundamental right of freedom of expression does not mean
that it may be exercised in all places and at all times. 74 It is, therefore, legitimate for the State to
'regulate' the time, place and manner of exercise of a fundamental right in order to safeguard a
 428

substantial social interest.75 An important precept of exercise of power in terms of s. 144 CrPC is that
the right to hold meetings in public places is subject to control of appropriate authority regarding the
time and place of meeting. Orders temporary in nature can be passed to prohibit the meeting or to
prevent imminent breach of peace. Such orders constitute reasonable restriction. 76
In the context of the fundamental right of assembly in India, including that of procession, that relevant
social interest is 'public order' as specified in Art. 19(3). 77
We have already seen the scope and extent of the power conferred upon the State by reason of
'public order'. We are now to discuss the limits imposed upon the aforesaid power by the condition
imposed by Art. 19(3), viz., that the restrictions imposed by the State must be 'reasonable' (para. 34). 78
The right of procession cannot be absolutely prohibited or denied
To anticipate the conclusion, at the very beginning, the basic proposition is that in the name of
'regulation' or 'restriction', the State cannot indirectly effectuate the extinction (para. 76)79 of the right
itself, because the restriction will be unconstitutional if it is 'unreasonable'. This proposition was stated
by the Constitution Bench in Himmat Lal's Case (para. 33)80, in these words--
"... the State cannot by law take away the right of assembly by prohibiting assembly on every public
street or public place. The State can only make regulations in aid of the right of assembly of each
citizen".
The principal has been reiterated by a three-judge Bench as follows:
"'regulation' and not extinction of that which is to be regulated is, generally speaking, the extent to
which permissible restrictions may go in order to satisfy the test of reasonableness" (para. 76) 81.
In the USA, it has been held that restriction does not exclude the idea of prohibition. It is for the court
to consider having regard to the circumstances of each case, whether restriction or prohibition was a
reasonable exercise of police power. Ordinarily, restriction will simply require "regulation" e.g.,
regulation of the practice of medicine to protect health of the community or the regulation of movement
to prevent the spread of contagious diseases. But in more serious cases, it may require prohibition
e.g., of the sale of adulterated food or drugs, prohibition of brickyard in thickly populated cities. 82 But
an absolute prohibition of a business which is not injurious may be held arbitrary. 83
It is true that in some cases, it has been held that the word 'restriction' in Art. 19 may include
'prohibition', in proper cases. A close examination of these cases, however, will show that--

62a)  These are cases relating to business84 (or property), and only where such
business is inherently deleterious85 or the commodity or service is 'essential' to the
community,86 or the circumstances are emergent.87 Total prohibition may also be imposed
when trade or business generates pollution. No one has a fundamental right to
manufacture, sell and deal in fire works which produces sound beyond permissible limits
or which generates pollution which endangers health and public order. 88
64b)  On the other hand in the absence of such exceptional circumstances the
total stoppage of an ordinary business has been held to be unconstitutional. 89
45c)  In the case of the freedom of expression under Art. 19(1) (a), a total
prohibition would be held to be prima facie unconstitutional.90 Similar view, has been
taken as regards the freedom of association, by holding that its exercise cannot be made
dependent upon the subjective discretion of administrative authorities. 91
What is true of the right of assembly under Art. 19(1)(b) does not lose its colour when the assembly is
for a religious purpose.92 It hardly needs any argument to assert that the freedom of religion stands on
a much superior and sanctified footing than a right of business or property. Not only is it taken out of
Art. 19 and put under a separate Article but there is no concept of 'regulation' infused into that Article
i.e., Art. 25. Of course, if the religious practice is such as by itself provokes breach of the peace, such
as, human sacrifice or infanticide, the freedom may be forfeited, because the freedom is subject to
'public order'. Similarly, it can be forfeited, if the exercise of such practice offends against some other
 429

provision of Part III, e.g., ban on untouchability (Art. 17) or prohibition of traffic in human beings (Art.
23).
But in the absence of any such inherent vice, the Constitution of India does not contemplate that the
right to exercise a religious practice may be subjected to such restrictions as operate as a virtual
denial of that fundamental right to an individual or group of individuals.
Bearing the foregoing basic principles in mind, let us now advert to the application of these principles
to particular forms of restriction as resorted to in India:
Licensing
Licensing or prior restraint is not, as such, unconstitutional in India 93 (as in the U.S.A.)94, and even
anticipatory action to control the exercise of a fundamental right has been upheld to prevent breach of
the peace,95 provided it satisfies the other conditions of reasonableness. The following propositions
may be formulated: Whenever the concerned authorities in charge of law and order find that a
person's speech or act ions are likely to trigger communal antagonism and hatred resulting in
fissiparous tendencies gaining foothold undermining and affecting communal harmony, prohibitory
orders need necessarily be passed to effectively avert such untoward happenings. Court said that the
valuable and cherished right of freedom of expression and speech may at times have to be subjected
to reasonable subordination of social interest, needs and necessities to preserve the very core of
democratic life - preservation of public order and rule of law. At some such grave situations atleast the
decision as to the need and necessity to take prohibitory action must be left to the discretion of those
entrusted with duty of maintaining law and order. Any speech or act ion which would result in
ostracization of communal harmony would destroy all those high values which the Constitution aims
at. Welfare of the people is the ultimate goal of all laws and the State action and above all the
Constitution. They have one common object, that is, to promote the well-being and larger interest of
the society as a whole and not of any individual or particular groups carrying any brand name. 96

12.  In the absence of any extraordinary or emergent circumstances, the

exercise of the freedom of assembly cannot be made dependent upon the unfettered
satisfaction of the Government or any administrative officer, 97 to grant or to refuse
permission to conduct a procession in the public street (para. 64). 98
16I.  It must also be procedurally fair i.e., not arbitrary, so as to be consistent with
Art. 14 of the Constitution.99
11II.  In order, therefore, that a law of licensing of the right to procession may be
constitutional, it must comply with the following conditions--
11. It must offer a standard or policy for the guidance of the authority in the
matter of exercising his subjective power (para s. 38, 64). 100
11. It must not be vague, or in excess of the requirement. 101
8. The power conferred must have a relation to the permissible ground of
restriction, e.g., public order.102
6. It must provide for judicial review in some form or at some stage, to control
the discretion.103

Sections 30 of the Police Act , 1861

Let us now turn to Sections 30 of the Police Act , 1861, which empowers the Police to require
processionists to take a licence, imposing conditions:
"30. Regulation of public assemblies and processions and licensing of same.--

9)  The District Superintendent or Assistant District Superintendent of Police

may, as occasion requires, direct the conduct of all assemblies and processions on the
public roads, or in the public streets or thoroughfares, and prescribe the routes by which,
and the times at which, such processions may pass.
 430

11)  He may also, on being satisfied that it is intended by any persons or class of
persons to convene or collect an assembly in any such road, street or thoroughfare, or to
form a procession which would, in the judgment of the Magistrate of the district, or of the
sub-division of a district, if uncontrolled, be likely to cause a breach of the peace, require
by general or special notice that the persons convening or collecting such assembly or
directing or promoting such procession shall apply for a license.
7)  On such application being made, he may issue a license specifying the
names of the licensees and defining the conditions on which along such assembly or
such procession is to be permitted to take place and otherwise giving effect to this
section.
Provided that no fee shall be charged on the applicant for, to grant of, any such license.

3)  He may also regulate the extent to which music may be used in the streets
on the occasion of festivals and ceremonies."
Constitutionality of s. 30(3)
It is apparent at once that sub-sec. (3) of s. 20 offends against Art s. 14, 19(1) (b) and 25, for the
following reasons:
Art. 14:
It confers upon the licensing authority, unguided power and discretion to refuse a licence altogether,
so as to subject the exercise of the fundamental right to the absolute and arbitrary whims of a Police
or administrative authority and enables him to prohibit a religious procession altogether. 104
On this point, a difference between sub-ss. (3) and (4) of s. 30 is patent on the face of the Act . While
the word 'regulate' is used in Cl. (4), there is no such word in Cl. (3); on the other hand, the word 'may'
suggests that it may be altogether refused so as to prohibit a procession. Such absolute power of
refusal has been condemned in Himmat Lal,105 while invalidating an analogous provision in r. 7 framed
under Sections 33(1) of the Bombay Police Act , 1951.
Being an unguided power, sub-sec. (3) enables the licensing authority to discriminate between a
Hindu religious procession and a Muslim non-religious procession or a political procession. In fact, in
the Mograhat case106, in the case of the Muslim victory celebration of the Mahomedan Sporting Club or
the Republic Day procession, the Police allowed the procession to be without any licence at all.
Nor is there any other safeguard in sub-sec. (3) to control the exercise of the discretionary power
conferred by the statute, such as the obligation to give reasons for refusal of the licence, appeal or the
like107 [as was relied upon by the Court in Maneka's case (para. 65)108.
Arts. 19(1)(b) and 25:
Of course, there is mention of a likelihood of 'breach of the peace' 109 but even that could not justify a
total prohibition of the exercise of the fundamental right of conducting a religious procession.
Imposing conditions
As has been seen, s. 30(3) empowers the licensing authority, while granting a licence, to impose
conditions as to the time, route and the like, subject to which only the procession could be conducted.
One of such conditions is specially mentioned in sub-sec. (4) viz., the use of music in the procession.
All these aspects should be taken up together, because, so far as a Hindu procession is concerned,
the usual background of all such restrictions is the play of 'music before the mosque', which has been
discussed earlier. Of course, the time and manner of taking a procession along a highway may be
regulated to ensure that the rights of other persons who seek to use the same highway, for passing
individually or collectively (in procession) may not be interfered with. But that is not the bone of
contention regarding Hindu religious processions.
Before proceeding further, it should be reiterated that music, as such, has not been banned by any
Muslim scripture. On the other hand, the play of music has been enjoined by the Hindu Shastras as an
 431

integral part of immersion110 and other processions carrying images of the Deities along the public
streets, and this was appreciated by Christian and Muslim judges for over a century. 111 Now, it comes
within the freedom guaranteed both by Art. 19(1)(b) and Art. 25(1).
Regulating time of procession
The oppositionists, therefore, fall back upon the plea that play of music by the processionists causes
disturbance to the saying of prayers in the roadside mosques. This can be easily met by the Police by
regulating the time of the procession.
The licensing authority imposing a condition in the licence
In the Mograhat Case,112 while issuing licence to the Hindu processionists, the Police had, in fact, fixed
an hour when no namaj was held in the disputed mosque. The oppositinists, however, claimed that all
the while was namaj time. The licensing authority acceded to this plea and imposed a condition in the
licence--'that no music should be played while passing near' the mosque.
Stoppage of music
The Muslim scriptures prescribe five specified times during the day for saying the namaj. It would be
an utterly unreasonable restriction upon the fundamental right of the processionists to ban the music
altogether on the assumption that all time is namaj time in a mosque. Such a contention was, in fact,
raised as early as 1882, and TURNER C.J. turned it down,113 in these words--
"An order, which came before this Court, prohibiting a private householder from having music in his
house at any hour of the day or night throughout the year, because the house was adjacent to a place
of religious worship, illustrates the intolerance an indiscreet Magistrate may countenance."114
It may be mentioned in this context that Sections 31 of the Police Act , 1861 enjoins the Police to
prevent obstruction caused by processions on the public roads "in the neighbourhood of places of
worship, during the time of public worship."
Constitutionality of Sections 30(4) of the Police Act
There are no such qualifying words in s. 30(4) of the Act . The language of Sections 30(4) of the
Police Act , 1861 (see ante) is wide enough to authorise the stoppage of music when there is a
mosque abutting the route of a Hindu procession, whether during or outside 'the time of public
worship'. This provision should be suitably amended, if it is to be saved from unconstitutionality.
It has been seen that Sections 30(1) of the Police Act empowers the licensing authority 'to prescribe
the routes' by which a procession should be allowed to pass. If the processionists take a route not
covered by the licence, they would, of course, be liable to punishment under s s. 30A and 32 of the
Police Act .
(a) If the supposed resistance is ascribed to the existence of many mosques along the new route, the
answer was given by the Privey Council in Manzur's case115 in 1925, namely, that the Sunnis had no
right to object to a religious procession of Shiahs on the ground that their 'wailing' ceremony
'disturbed' Sunni worship in the abutting Mosque,--the reason being that--
"persons of whatever sect are entitled to conduct religious processions through public streets" (p.
37),116 and also that the rights of such processionists are "no less than the rights of any member of the
public" (p. 36).117
These observations are, with a greater emphasis, applicable when the processionists belong to
another religion because of the guarantee in Art. 25(1) of the Constitution.
If an individual cannot be prevented from walking over a highway because there are mosques abutting
it, so the Police cannot prevent a Hindu procession over a highway simply because there are
mosques nearby. If such an unreasonable demand is acceded to by the State, the oppositionists might
reduce to a mockery the fundamental right of the Hindus, by erecting an improvised mosque at every
street corner.118
 432

The observations of TURNER, C.J. on this point, in the early case of Muthialu119 should also silence
those who seek to pamper Muslim 'sentiments' in the name of 'adjustment' of the rights of the minority
with those of the majority--
"...... if no religious procession is to be allowed to pass a recognized place of worship, whether
persons are not at the time there assembled and engaged in religious worship, the members of a
numerous120sect might close every highway to the processions of a sect to which they are opposed by
erecting in the neighbourhood of each highway a place of worship." 121
A misconception seems to be operating, in the minds of the Police who are asked to work with a
statute which is just 130 year old. There was a time when the right of passage over a highway had to
be established, in the absence of direct evidence of dedication to the public, by indirect proof of
dedication from customary use or user from time immemorial. But in 1925, the Privy Council 122 laid
down that the right of the processionists arose from the very fact that the road was a public road and
proof of user from time immemorial is no longer necessary. Since the adoption of the Constitution, the
position of the processionists has become stronger because, under Art. 19(1)(b) of the Constitution,
every citizen has the right to pass along every public road, whether individually or in a procession with
others. The Muslim oppositionists should realise what would happen to their tazia procession if the
Hindus residing in a locality object to it on the ground that there are temples on the route in question.
The concept of a 'Muslim pocket' is worse because, apart from the existence of any mosque in such
an area, the Muslims get annoyed because the Hindu procession is associated with 'idol worship'. As
has been observed by the Courts in the century-old cases, referred to earlier, such annoyance stems
from 'sentiments',123 or 'prejudices'124 or 'intolerance'125--of which the law, or, for the matter of that, the
law-maintaining forces can take no account.126
Instances of reasonableness of restrictions on the freedom of assembly

13.  Substantive aspect

1.
5. A restriction which is in excess of the requirement to meet the social
evil in question would be unreasonable. Thus,--
2. Rule 4A of the Bihar Government Servants Conduct Rules, 1956, in
so far as it prohibits Government servants from participating "in any
demonstration ......... with any matter pertain ing to his conditions of
service", has been struck down as an unreasonable restriction on the
ground that it is wide enough to include within its prohibition even
demonstrations through assemblies or processions which may be peaceful
and orderly and may not, accordingly, lead to a breach of public order. 127
5. The purpose of the meeting offers another ground of restriction,
such as an assembly for the purpose of taking opium. 128
23.
1. On the other hand--
6. It is competent for the employer, whether private or public,--to
prohibit meetings to be held within the premises of the employer which is
not open to the use of the general public.129
6. Section 144 of the CrPC which authorises the making of temporary
orders for the prohibition of meetings or processions to prevent an
imminent breach of the peace, constitutes a reasonable restriction upon
this freedom1 excepting the provisions in sub-sec. (b) thereof.2If the
authorities feel that the presence or participation of any person in the
meeting or congregation would be objectionable, for some patent or latent
reasons as well as the past track record of such happenings in other
places, involving such participants, necessary prohibitory orders could be
issued. Quick decisions and swift as well as effective act ion necessitated
in such cases may not justify or permit the authorities to give prior
opportunity or consideration at length of the pros and cons. The imminent
 433

need to intervene instantly, having regard to the sensitivity and perniciously

perilous consequences, it may result in if not prevented forthwith cannot be
lost sight of.3 But to invoke the powers under s.144 CrPC at midnight and
that too on sleeping protesters, when there is no danger to peace and
public order is not valid.4 At the same time, while holding that s.144 CrPC
is constitutionally valid, court said that an order passed under the above
provision under a valid law enacted by Parliament and since the provision
provides a complete channel for examining the correctness or otherwise of
such an order passed therein, such an order falls within the framework of
reasonable restriction (if properly implemented as per procedure
prescribed therein).
In Himat Lal K. Shah v. Commissioner of Police ,5 court said that there is
nothing wrong in requiring previous permission to be obtained before
holding a public meeting on public street, for the right to hold meeting at
any place and time. It was a right which could be regulated in the interest
of all, so that all could enjoy the right. Sections 33(1) of Bombay Police
Act was held valid, though Rule 7 framed under the said Act was held
unconstitutional since it did not provide any guidelines.
Like all others, right of assembly does not and cannot exist without
limitation. The right of assembly is qualified by the concept of "unlawful
assembly". An "unlawful assembly" is defined in IPC - an assembly of five
or more persons is designated an "unlawful assembly" if the common
object of the persons composing that assembly is (1) to overawe by
criminal force or show of criminal force, the Central or any State
Government or Parliament or the Legislature of any State or any public
servant in the exercise of the lawful power of such public servant; (2) to
resist the execution of any law or any legal process, or (3) to commit any
mischief or criminal trespass or other offence, or (4) by means of criminal
force, or show of criminal force to any person, to take or obtain possession
of any property or to deprive any person of the enjoyment of a right of way
or of the use of water or other incorporeal right of which he is in possession
or enjoyment or to enforce any right or supposed right, or (5) by means of
criminal force or show of criminal force to compel any person to do, what
he is not legally bound to do or to omit what he is legally bound to do".
24.

17I.  Procedural aspect

2. Rule which confers unguided discretion upon an authority to grant or refuse
permission to hold public meeting in a public street or other public place, 6 would
constitute an unreasonable restriction.

1 Janki v.Karamat, AIR 1931 All 674.

2 Jalil v. Ram, AIR 1931 All 341.

3 Janki v.Karamat, AIR 1931 All 674.

4 Janki v.Karamat, AIR 1931 All 674.

5 Janki v.Karamat, AIR 1931 All 674.

6 Chandu v. Nyahalchand, AIR 1950 Bom 198 (para. 3).

7 In re Abdul Sattar, AIR 1961 Mys 57(DB) .

 434

8 Piru v. Kalahandi, AIR 1970 SC 1885 : (1969) 2 SCR 563, affirming AIR 1964 Or 18.

9 Manzur v. Zaman, AIR 1925 PC 36.

10 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis at the end of each point].

11 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis at the end of each point].

12 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis, at the end of each point].

13 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis, at the end of each point].

14 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis, at the end of each point].

15 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis, at the end of each point].

16 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis, at the end of each point].

17 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis, at the end of each point].

18 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

19 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

20 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

21 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227.

22 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

23 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

24 Subbaya v. Falauddin, (1928) CLJ 509(Mad) .

25 Subbaya v. Falauddin, (1928) CLJ 509(Mad) .

26 Subbaya v. Falauddin, (1928) CLJ 509(Mad) .

27 The leading pre-Constitution decisions have been approved by the Supreme Court in Ghulam v. State of U.P., AIR
1981 SC 2198 : (1982) 1 SCC 71 (paras. 27, ff).

28 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

29 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

30 Subbaya v. Falauddin, (1928) CLJ 509(Mad) .

31 Subbaya v. Falauddin, (1928) CLJ 509(Mad) .

32 Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 71; Abdul v. State of U.P., AIR 1984 SC 882 : (1984) 2
SCC 138.

33 A glance at the newspapers reveal the following incidents during 1990-91; (i) Hazaribagh (Bihar) [Statesman, 10-4-
90]; (ii) Gonda (U.P.). [Today, 31-10-90]. In this case, first bomb was hurled from the house of a Muslim political leader,
 435

so says the Journal (ibid., p.p. 65-66); (iii) Saharanpur (U.P.) [Statesman, 29-3-91; 31-3-91; (iv) Bisharpara (W.B.)
[Ananda Bazar, 7-10-90].

34 Ismail v. Barkat Ali, (1992) 24 CrLJ 154 (155); Subbayya v. Falauddin, (1926) 28 CrLJ 509 (510); Sundram v. R.,
(1882) 6 Mad 203 (221); Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

35 Ismail v. Barkat Ali, (1922) 24 Cr LJ 154 (155).

36 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

37 Subbaya v. Falauddin, (1928) CLJ 509(Mad) .

38 Subbaya v. Falauddin, (1928) CLJ 509(Mad) .

39 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis at the end of each point].

40 Subbaya v. Falauddin, (1928) CLJ 509(Mad) .

41 Ismail v. Barkat Ali, (1922) 24 CrLJ 154 (155).

42 Mohan Lal v. State of W.B ., CR 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis at the end of each point].

43 In re Abdul Sattar, AIR 1961 Mys 57(DB) .

44 Gopal v. Daitari, AIR 1961 Or 167 (para. 2); In re Sattar, AIR 1961 Mys 57 (para. 21) (DB).

45 Gopal v. Daitari, AIR 1961 Or 167 (para. 2); In re Sattar, AIR 1961 Mys 57 (para. 21) (DB).

46 Ismail v. Barkat Ali, (1992) 24 CrLJ 154 (165); Subbayya v. Falauddin, (1926) 28 CrLJ 509 (510); Sundram v. R.,
(1882) 6 Mad 203 (221); Ghulam v. State of U.P., AIR 1981 SC 2198 (para. 28).

47 In re Abdul Sattar, AIR 1961 Mys 57(DB) .

48 Ismail v. Barkat Ali, (1922) 24 CrLJ 154 (155).

49 In re Abdul Sattar, AIR 1961 Mys 57(DB) .

50 Sundram v. R., (1882) 6 Mad 208 (220-21)(FB), approved by the Supreme Court in Ghulam v. Union of India, AIR
1981 SC 2198 : (1982) 1 SCC 71 (para. 28); Subbaya v. Falauddin, (1928) CLJ 509(Mad) ; Ismail v. Barkat Ali, (1922)
24 CrLJ 154 (155); Ismail v. Barkat Ali, (1992) 24 CrLJ 154 (165); Subbayya v. Falauddin, (1926) 28 CrLJ 509 (510);
Sundram v. R., (1882) 6 Mad 203 (221); Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (para. 28);
Ghulam v. State of U.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (para. 28).

51 Jalil v. Ram, AIR 1931 All 341.

52 Sundram v. R., (1882) 6 Mad 208 (217, 222, 226); Magrahat case, CR 150-60 (W) of 1981 (12, 32, 234,236).

53 No communal amity can be achieved so long as Muslim leaders continue to be haunted by the spirit of the 'Two
Nation' theory and Pan-Islamism and to acclaim that "we are Muslims first and Indians afterwards" [47 Truth, p. 569
Author's Introduction to the Constitution of India ].

54 Ghulam v. State of M.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (paras. 26, 28, 29, 30).

55 Cf. Gopalan v. State of Madras (1950) SCR 88 (253-54) : AIR 1950 SC 1; Sakal Papers v. Union of India, AIR 1962
SC 305 (315) : (1962) 3 SCR 842; Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 32-33);
Rangarajan v. Jagjivan. (1989) 2 SCJ. 128 (paras. 51, 53) 3 judges.

56 Cf. Gopalan v. State of Madras (1950) SCR 88 (253-54); Sakal Papers v. Union of India, AIR 1962 SC 305 (315);
Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 32-33).

57 Rangarajan v. Jagjivan. (1989) 2 SCJ. 128 (paras. 51, 53) 3 judges.

58 Rangarajan v. Jagjivan. (1989) 2 SCJ. 128 (paras. 51, 53) 3 judges.

59 Rangarajan v. Jagjivan. (1989) 2 SCJ. 128 (paras. 51, 53) 3 judges.

 436

60 Ghulam v. State of M.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (paras. 26, 28, 29, 30).

61 Sundram v. R., (1882) 6 Mad 208 (217, 222, 226);

62 Ghulam v. State of M.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (paras. 26, 28, 29, 30).

63 Sundram v. R., (1882) 6 Mad 208 (217, 222, 226);

64 Peethambaram v. Supt. of Police, CBI, (1996) (1) Ker LJ 173.

65 A.S. Narayana Deekshitulu v. State of AP, AIR 1996 SC 1765 : (1996) 9 SCC 548.

66 Sundram v. R., (1882) 6 Mad 208 (217, 222, 226);

67 Aruna Roy v. UOI, AIR 2002 SC 3176 : (2002) 7 SCC 368.

68 AIR 1994 SC 1918 : (1994) 3 SCC 1.

69 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225 : 1993 Supp. SCR 1 and Indira N.
Gandhi v. Raj Narain, AIR 1975 SC 1590 : (1975) 2 SCC 159.

70 S.P. Mittal v. UOI, AIR 1983 SC 1 : (1983) 1 SCC 51.

71 S.R. Bommai v. UOI , (supra).

72 AIR 1975 SC 1788 : (1976) 2 SCC 17.

73 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684. Also seeS.R. Bommai v.
Union of India, (1994) 3 SCC 1.

74 Cornelius v. N.A.ACP., (1985) 473 US 788 (799).

75 Red Lion Broadcasting v. F.C.C., (1969) 395 US 367 (386); Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973)
1 SCC 227 (paras. (33-34, 52) (CB). [It is unfortunate that in Piru's case, AIR 1970 SC 1885 : (1969) 2 SCR 563 (para.
14), SIKRI, C.J. assumed that 'rights of the public' was a legitimate ground for restricting the rights of the
processionists; but 'interests of the general public', which is mentioned in cl. (5) of Art. 19, finds no place in Art. 19(3)
and the only relevant ground in Art. 19(3) as well as Art. 25 is 'public order' as is clearly stated by SIKRI, C.J. in para.
33 of the Constitution Bench judgment in Himmat lal (AIR 1973 SC 87) : (1973) 1 SCC 227, which must have wiped out
any observation to the contrary by the Division Bench in Piru's case].

76 SeeRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

77 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (paras. (33-34, 52) (CB). [It is unfortunate that in
Piru's case, AIR 1970 SC 1885 : (1969) 2 SCR 563 (para. 14), SIKRI, C.J. assumed that 'rights of the public' was a
legitimate ground for restricting the rights of the processionists; but 'interests of the general public', which is mentioned
in cl. (5) of Art. 19, finds no place in Art. 19(3) and the only relevant ground in Art. 19(3) as well as Art. 25 is 'public
order' as is clearly stated by SIKRI C.J. in para. 33 of the Constitution Bench judgment in Himmat lal (AIR 1973 SC
87) : (1973) 1 SCC 227, which must have wiped out any observation to the contrary by the Division Bench in Piru's
case]; Express Newspapers v. Union of India, (1986) 1 SCC 133 (para. 76)--3 judge Bench : AIR 1986 SC 872.

78 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 33-34, 52) (CB). [It is unfortunate that in
Piru's case, AIR 1970 SC 1885 : (1969) 2 SCR 563 (para. 14), SIKRI, C.J. assumed that 'rights of the public' was a
legitimate ground for restricting the rights of the processionists; but 'interests of the general public', which is mentioned
in cl. (5) of Art. 19, finds no place in Art. 19(3) and the only relevant ground in Art. 19(3) as well as Art. 25 is 'public
order' as is clearly stated by SIKRI C.J. in para. 33 of the Constitution Bench judgment in Himmat lal (AIR 1973 SC
87) : (1973) 1 SCC 227, which must have wiped out any observation to the contrary by the Division Bench in Piru's
case]; Express Newspapers v. Union of India, (1986) 1 SCC 133 (para. 76)--3 judge Bench : AIR 1986 SC 872.

79 Express Newspapers v. Union of India, (1986) 1 SCC 133 (para. 76)--3 judge Bench : AIR 1986 SC 872.Himmat Lal
v. Police Commr., AIR 1973 SC 87 (paras. (33-34, 52) C.B. : (1973) 1 SCC 227. [It is unfortunate that in Piru's case,
AIR 1970 SC 1885 (para. 14) : (1969) 2 SCR 563, SIKRI, C.J. assumed that 'rights of the public' was a legitimate
ground for restricting the rights of the processionists; but 'interests of the general public', which is mentioned in cl. (5) of
Art. 19, finds no place in Art. 19(3) and the only relevant ground in Art. 19(3) as well as Art. 25 is 'public order' as is
clearly stated by SIKRI C.J. in para. 33 of the Constitution Bench judgment in Himmat Lal v. Police Commr., (AIR 1973
SC 87), which must have wiped out any observation to the contrary by the Division Bench in Piru's case].

80 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 33-34, 52) (CB). [It is unfortunate that in
Piru's case, AIR 1970 SC 1885 : (1969) 2 SCR 563 (para. 14), SIKRI, C.J. assumed that 'rights of the public' was a
legitimate ground for restricting the rights of the processionists; but 'interests of the general public', which is mentioned
 437

in cl. (5) of Art. 19, finds no place in Art. 19(3) and the only relevant ground in Art. 19(3) as well as Art. 25 is 'public
order' as is clearly stated by SIKRI C.J. in para. 33 of the Constitution Bench judgment in Himmat lal (AIR 1973 SC
87) : (1973) 1 SCC 227, which must have wiped out any observation to the contrary by the Division Bench in Piru's
case]; Express Newspapers v. Union of India, (1986) 1 SCC 133 (para. 76)--3 judge Bench : AIR 1986 SC 872.

81 Express Newspapers v. Union of India, (1986) 1 SCC 133 (para. 76)--3 judge Bench : AIR 1986 SC 872.Himmat Lal
v. Police Commr., AIR 1973 SC 87 (paras. (33-34, 52) C.B. : (1973) 1 SCC 227. [It is unfortunate that in Piru's case,
AIR 1970 SC 1885 (para. 14) : (1969) 2 SCR 563, SIKRI, C.J. assumed that 'rights of the public' was a legitimate
ground for restricting the rights of the processionists; but 'interests of the general public', which is mentioned in cl. (5) of
Art. 19, finds no place in Art. 19(3) and the only relevant ground in Art. 19(3) as well as Art. 25 is 'public order' as is
clearly stated by SIKRI C.J. in para. 33 of the Constitution Bench judgment in Himmat Lal v. Police Commr., (AIR 1973
SC 87), which must have wiped out any observation to the contrary by the Division Bench in Piru's case].

82 Wolff Packing Co. v. Court of Industrial Relation, (1923) 262 US 522.

83 Weaver v. Palmer Bros., (1926) 270 US 402.

84 Narendra v. Union of India, AIR 1960 SC 430 : (1960) 2 SCR 375; State of U.P. v. Kartar Singh, AIR 1964 SC 1135 :
(1964) 6 SCR 679; Sant Ram, in re, AIR 1960 SC 932 (935) : (1960) 3 SCR 499. (See C 6, Vol. C, pp. 52).

85 State of Orissa v, Harinarayan, AIR 1972 SC 1816 : (1972) 2 SCC 36 (para. 17).

86 Bhatnagars v. Union of India, (1957) SCR 701 (711) : AIR 1957 SC 478.

87 State of M.P. v. Kartar Singh, AIR 1964 SC 1135 : (1964) 6 SCR 679.

88 Burrabazar Fire Works Dealers' Assn. v. Commissioner of Police, AIR 1998 Cal 121.

89 Rashid Ahmed v. Municipal Bd., (1950) SCR 566 : AIR 1950 SC 163; Yasin v. Town Area Committee, (1952) SCR
572.

90 Nirendra v. State of Punjab, AIR 1957 SC 896 (899) : 1958 SCR 308.

91 State of Madras v. Row, AIR 1952 SC 196 : 1952 SCR 597.

92 It was in connection with a religions procession that the 3-judge Bench in Gulam's case (AIR 1981 SC 2198 : (1982)
1 SCC 71 (paras. 29-30) observed that the rights of the processionists could be "regulated and not prohibited
altogether for avoiding breach of peace", and that it was the duty of the Magistrate "to bind down that party" which was
interfering with the legal exercise of the legal right of the other party, "restraining that party (i.e., the wrong-order) from
committing any act which may lead to a breach of the peace".

93 Nirendra v. State of Punjab, AIR 1957 SC 896 (899) : 1958 SCR 308.

94 Kunz v. N.Y., (1951) US 290; Thomas v. Collins, (1945) 323 US 516.

95 Babulal v. State of Maharashtra, AIR 1961 SC 884 (889) : (1961) 3 SCR 423. See alsoRamlila Maidan Incident, In
re., (2012) 5 SCC 1 : (2012) 2 SCALE 682; State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 :
(2004) 4 SCC 684.

96 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.

97 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 38, 40-42, 64). See alsoRamlila Maidan
Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

98 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 38, 40-42, 64). See alsoRamlila Maidan
Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

99 Maneka v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 (para. 56).

100 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 38, 40-42, 64). See alsoRamlila
Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

101 Cf. Kameswar v. State of Bihar, AIR 1962 SC 1166 : 1962 Supp (3) SCR 369; Abbas v. Union of India, AIR 1971
SC 481 : (1970) 2 SCC 780 (para. 48). See alsoRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE
682.

102 Supdt. v. Ram Manohar, AIR 1960 SC 633 : (1960) 2 SCR 821; Saraswati Syndicate v. Union of India, AIR 1975
SC 460 : (1974) 2 SCC 630 (para. 30).
 438

103 Babulal Parate v. State of Mahrashtra, AIR 1961 SC 884 (890) : (1961) 3 SCR 423. See alsoRamlila Maidan
Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

104 The constitutionality of s. 30(3) was raised in the Magrahat case and it should have been struck down on this
ground alone. Unfortunately, the Court made light of the plea, even though the Government of India did not contest the
case. This is a pre-Constitution Act and it is high time that it should be suitably amended in the light of the juristic
principles discussed herein.

105 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 38, 40-42, 64).

106 Mohan Lal v. State of W.B ., C.R. 15060 (W) of 1981, dt. 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis, at the end of each point].

107 Much cannot be made of the opinion of the Magistrate referred to in sub-sec. (2) of s. 30, because in those days
he was an Executive Magistrate and there was no provision in the section for any judicial review of the action taken by
the Police Officer.

108 Maneka v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 (para. 56).

109 Himmat Lal v. Police Commr., AIR 1973 SC 87 : (1973) 1 SCC 227 (para s. 38, 40-42, 64).

110 Cf. Kalika Purana (Ch. 61, sl. 17-20); Devi Bhagavata (Ch. 40. sl. 23; Ch. 31, sl. 4, 21; Ch. 91, sl. 44); Durga Puja
Padhati (p. 93). Going back to the Vedas, music is regarded as a part of religious worship because God is the source of
all delight, and the best medium of pleasing God is music which is a source of delight Jaimini Mimamsa, II. i. 33;
Chandogya Upanishad, II. VIII. 5; II. III. 2).

111 Cf. Vijiaraghava's case, (1903) 26 Mad, 554 (587); Jalil's case, AIR 1931 All 341.

112 Mohan Lal v. State of W.B ., C.R. 15060 (W) of 1981, dated 30-8-1983. [The relevant page number of the certified
copy of the judgment is given within parenthesis, at the end of each point].

113 Sundram v. R., (1882) 6 Mad 203 (217).

114 Sundram v. R., (1882) 6 Mad 203 (217).

115 Manzur v. Zaman, AIR 1925 PC 36.

116 Manzur v. Zaman, AIR 1925 PC 36.

117 Manzur v. Zaman, AIR 1925 PC 36; This was reiterated by the Supreme Court, in 1981, in Ghulam's case, AIR
1981 SC 2198 (para. 28). It is to be noted that in both cases the Sunnis objected to a Shiah procession on the ground
that their worship in the abutting mosque was disturbed by the practice of wailing prescribed by another school of the
same religion. In such a situation, it is unquestionable that the Magistrate could not suppress the 'religious sentiments'
as well as the lawful rights of the processionists, to appease the sentiments of another sect.

118 Muthialu v. R, (1880) 2 Mad 140 (141-142).

119 Muthialu v. R, (1880) 2 Mad 140 (141-142).

120 In a 'Muslim pocket', the minority community, in fact, constitutes the numerical majority and may, therefore, be
more 'vociferous and militant' (Ghulam v. Union of India, AIR 1981 SC 2198 (para. 26). If the resources of the local
Police are inadequate to cope with them, they should seek reinforcement from elsewhere, but they cannot abdicate
their authority' (para. 28 ibid).

121 Muthialu v. R, (1880) 2 Mad 140 (141-142).

122 In re Abdul Sattar, AIR 1961 Mys 57(DB) .

123 Jalil v. Ram, AIR 1931 All 341.

124 Ghulam v. State of M.P., AIR 1981 SC 2198 : (1982) 1 SCC 71 (paras. 26, 28, 29, 30).

125 Rangarajan v. Jagjivan, (1989) 2 SCJ. 128 (paras. 51, 53) 3 judges.

126 Any pampering of the concept of 'Muslim pockets' would lead not to foster communal amity or the unity of India but
to create another Pakistan within divided India, on the basis of religion. To say this is not uttering a political slogan but
to affirm one's allegiance to the Constitution of India which banned all discrimination on the ground of religion,
communal representation or any extra-constitutional factor such as the 'sentiments' of the members of a particular
religious community. This is not a book on Politics and this author is not a politician; but as jurist who has seen the
 439

genesis of the Constitution since its very gestation, he feels bound to give the correct legal interpretation of the Charter
to which the members of every Government in this country have to swear allegiance.

127 Kameswar v. State of Bihar, AIR 1962 SC 1166 : 1962 Supp (3) 535; O.K. Ghosh v. Joseph, AIR 1963 SC 812 :
1963 Supp (1) SCR 789.

128 State v. Mangala, AIR 1957 All 753.

129 Ry. Board v. Niranjan, AIR 1969 SC 966 : (1969) 1 SCC 502.

1 Kishan Chander v. State of M.P., (1964) 1 SCR 765 : AIR 1965 SC 307; Madhu Limaye v. Sub Divisional Magistrate,
Monghyr, AIR 1971 SC 2486 : (1970) 3 SCC 746.

2 State of Bihar v. K.K. Misra, AIR 1971 SC 1667 (1669) : (1969) 3 SCC 337.

3 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.

4 SeeRamlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

5 AIR 1973 SC 87 : (1973) 1 SCC 227 (supra).

6 Himmat Lal v. Police Commr., AIR 1975 SC 87 : (1975) 4 SCC 161 (para. 64). SeeState of Karnataka v. Dr. Praveen
Bhai Thogadia, AIR 2004 SC 2081 : (2004) 8 SCC 684; Ramlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2
SCALE 682.

On the other hand,--

Throwing the burden of proof upon the accused, subject, to adequate safeguards, cannot be said to
constitute an unreasonable restriction as regards a law to suppress the mischief of gambling. 7
7 Babulal v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423.

CLAUSE (1)(C): FREEDOM OF ASSOCIATION OTHER

CONSTITUTIONS
U.S.A.
(A) U.S.A.--There is no specific guarantee in the American Constitution of any right of association. 8
Thus, even as late as 1908, trade unions were held to be illegal, being restraints on inter-state
commerce.9 But in 1937, the Supreme Court recognised their legality and the right of the workers to
join them, since their object was a 'legitimate' one, viz., the improvement of the conditions of their
members as wage-earners.10
In Tashjian v. Republican Party ,11 the Court said: "It is beyond doubt that freedom to engage in any
association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by
the due process clause of the Fourteenth Amendment which embraces freedom of speech". Effective
advocacy of both public and private points of view, particularly controversial ones, is undeniably
exercised by group association, for, there is closest nexus between freedom of speech and the
assembly.12 The freedom of association protected by First and Fourteenth Amendments includes
partisan political organisation. The right to associate with the political party of one's choice is an
integral part of this basic constitutional freedom. It was held in the above case that it is immaterial
whether the beliefs sought to be advanced pertain to political, economic, religious or cultural matters
and State act ion which may have effect of curtailing the freedom of association is subject to closest
scrutiny.

14.  The right of workers to organise for collective bargaining was declared a
'fundamental right' because a single employee was helpless in dealing with his employer
and "union was essential to give labourers opportunity to deal on an equality with their
employer".13
 440

Similarly, peaceful picketing,14 unattended with violence,15 to publicise a labour dispute, as well as the
right of employees to strike and to persuade others to strike, if not actuated by malice, 16 have been
upheld as lawful. But the State may regulate or prohibit picketing at certain places to protect
substantial social interests, e.g., picketing near a court house17 or a school18 or a foreign embassy.19
In the U.S.A., peaceful picketing is considered to be protected under the freedom of expression as
well as that of association.20

18I.  It is now 'beyond debate' that freedom to engage in association for the
advancement of beliefs and ideas is an inseparable aspect of the 'liberty assured by the
'Due Process' clause of the 14th Amendment.21
A right to associate for the purpose of engaging in those act ivities protected by the First Amendment
for an individuals' freedom to speak and to petition to Government for the redress of grievances could
not be vigorously protected unless a correlative freedom to engage in group effort towards those ends
were not also guaranteed.22 In that case, it was observed that freedom of association has two distinct
senses. In one sense, the choices to enter into and maintain certain intimate human relationship must
be secured against undue intrusion by State because it is a fundamental personal liberty. In another
set of senses, the right to association recognises those activities protected by First Amendment -
speech, assembly, petition for the redress of grievances and exercise of religion. Constitution
guarantees freedom of association of this kind as an indispensable means of preserving other
individual liberties.
The Court has long recognised that because the Bill of Rights is designed to secure individual liberty,
it must offend the formation and preservation of certain kinds of highly personal relationship a
substantial measure of sanctuary from unjustified interference by the State.
The right to associate for expressive purposes, is not however absolute. Infringement on that right
may be justified by regulations adopted to serve compelling State interests, unrelated to suppression
of ideas that cannot be achieved through significantly less restrictive of associational freedom. The
court recognises that First Amendment protects the rights to join together with others to communicate
one's views - what might be called a right of expressive association. One way that members of an
organisation can ensure that it continues to reflect their ideas is by controlling its membership
restricting it to like-minded persons. However, the Government may have valid reasons unrelated to
suppression of speech, such as preventing discrimination for regulating the membership policies of
organisation. In Roberts,23 the court ruled that the State could compel the Club (association) an all-
male organisation to admit women as members. Even though the association claimed that this
invaded their right of freedom of speech and association, Court said that the association had failed to
show that the admission of women would impose any serious burden on the organisational ability to
convey its views and values.
But in Hutley v. Irish American Gay, Lesbian and Bisexual Group of Boston (GLIB) ,24 a different view
was taken. In that case, court unanimously upheld the right of organisers sponsoring Boston's St.
Patrick Day Parade to refuse to include a group of gay, lesbian and bisexual marchers in the parade.
The parade's overall message is distilled from the individual presentation along the way and each
unit's expression is perceived by spectators as part of the whole. Thus far the State to require the
inclusion of GLIB would alter the expression of the parade organisers and compel them to convey a
message that they disapproved. Similarly, in Boy Scouts of America v. Dale ,25 the Court upheld the
right of Boy Scouts to exclude homosexuals from membership. The Court said: "The forced inclusion
of an unwanted person in a group infringes the group's freedom of expressive association if the
presence of that person affects in a significant way the group's ability to advocate public or private
viewpoints". In New York State Club Assn. v. City of New York ,26 court unanimously upheld a State
ordinance that barred discrimination by race, sex or creed in any club with more than four hundred
members and which regularly receives payment from non-members which provided regular meal
service for the furtherance of trade or business act ivities.
"It is immaterial whether the beliefs sought to be advanced by association pertains to political,
economic, religious or cultural matters."27
 441

In some cases, the freedom of association has also been deduced from the First Amendment 28:
"Our form of Government is built on the premise that every citizen has the right to engage in political
expression and association. This right was enshrined in the First Amendment of the Bill of Rights". 29
In Griswold's case it was observed by DOUGLAS, J.,--
"The right of "association", like the right of belief ........ is more than the right to attend a meeting; it
includes the right to express one's attitudes or philosophies by membership in a group or by affiliation
with it or by other lawful means. Association in that context is a form of expression of opinion 30; and
while it is not expressly included in the First Amendment its existence is necessary in making the
express guarantees fully meaningful." In that case, the court relying on earlier decision, further held
that the right to freedom of speech and press includes not only the right to utter or to print, but the right
to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought and
freedom to teach - indeed the freedom of the entire university community without these peripheral
rights, the specific rights would be less secure. Relying on NAACP v. Alabama ,31 court said that
freedom to associate and privacy in one's association, nothing that freedom of association was
peripheral First Amendment right. In other words, First Amendment has a penumbra where privacy is
protected from Governmental intrusion. Court said that while association is not expressly included in
the First Amendment, its existence is necessary in making the express guarantee fully meaningful. 32

12II.  It has been held that the freedom of association includes not only the
freedom to engage in an association for the advancement of beliefs and ideas, 33 but also
the formation and organisation of parties, as a mode of expression of all political ideas,34
or for the purpose of assisting persons who seek legal redress for infringement of their
constitutional or other rights,35 even though members of the legal profession may be
affected thereby.36
On the other hand, "effective advocacy of both public and private points of view ...... is undeniably
enhanced by group association".37 Hence, it has been held tolie at the foundation of a free society in
the same way as freedom of speech.38

7V.  From the right to form associations for political,39 religious, or economic
purposes, the further extension is the acknowledgement of the right to form association
for any lawful purpose that deserves constitutional protection, 40 including private41
relationships, e.g., marriage;42 rearing of children and their education.43
4.  It has also been acknowledged that freedom of association includes the right
of privacy in one's association.44
"...that freedom to engage in association for the advancement of beliefs and ideas is an inseparable
aspect of freedom of speech. It is immaterial whether the beliefs ought to be advanced by association
pertains to political, economic, religion or cultural matters and the State action which may effect
curtailing the freedom to associate is subject to close scrutiny. A law which compels the association to
disclose the details of membership was held invalid since it amounts to a "substantial restraint upon
the exercise of the freedom of association.45
Boycotts undertaken for the purpose of political expression rather than for economic coercion are
protected forms of expression. In NAACP v. Claiborne Hardware Co .,46 court overturned a civil
damages award based on tortuous interference with economic advantage. The case stemmed from a
boycott organised by NAACP against white business in order to dramatize claims of racial
discrimination. The State Court rejected a First Amendment defence in imposing civil liability on the
NAACP and certain boycott organisers. Because the boycott was intended to express political views
and a boycott necessarily involves association to achieve its ends, the State could not award
compensation for the consequences of non-violent protected act ivities. But in International
Longshoremen's Association v. Allied International ,47 court ruled that the Union's refusal to handle
cargoes coming from or going to Soviet Union in order to protest the Soviet Union's invasion of
Afghanistan was not a form of protected expression, despite its opponent political nature because it
was a "conduct designed not to communicate, but to coerce". In Roberts v. US Jaycee ,48 it was held
 442

that there can be no clearer example of an intrusion into the internal structure of an association than a
regulation that forces the group to accept members it does not desire. But at the same time, the right
to associate for expressive purposes is not absolute. Infringement on that right may be justified by
regulations adopted to serve compelling State interest, which is unrelated to suppression of ideas that
cannot be achieved through means significantly less restrictive of associational freedom. A law which
prohibits sex discrimination in the membership policy of an association was held valid. When there is
nothing to show that the working of the association will be affected in any significant way in carrying
out its various purposes. When the association employs no criteria for application for membership
(except age and sex) and new members are routinely recruited and admitted with no enquiry into their
background, the association cannot claim constitutional protection to the decision of its members to
exclude women.49
The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive
association of the presence of that person affects in a significant way the group's ability to advocate
public a private view points.50 In that case the association justified the expulsion of a member as the
ground that the conduct of the member is against the purpose of the association. It was stated that the
members homosexual conduct is inconsistent with the values inhabited in Scout Oath and Law
particularly with the values represents by the terms "merely straight and clean".
Freedom of association would prove to be an empty guarantee if association could not limit control
over their decisions to those who share the interests and persuasions that underline the associations
being. Court took the above view in California Democratic Party v. Jones ,51 where the question was
whether the State can permit Republicans to vote in Democratic Primary? It was held that court may
not permit individuals who are not members of political party to vote in that partys' primary. It held that
such a law "forces political parties to associate with -- to have their nominees and hence their position
determined by -- those who at best, have refused to affiliate with the party and, at worst, have
expressly affiliated with a rival.52 In that case, court struck down legislative implementing Proposal 198,
a ballot initiative voters adopted to replace the State's system of closed primaries with blanket primary.
Before 1996, voters had to be members of political party to vote in that party's primary. The new rule
not only removed the party membership requirement, but allowed a voter to vote in primary contests in
different parties although in only one party contest for office. When the rule was challenged, court
said: "Proposition 198 forces political parties to associate with - to have their nominee and hence their
positions determined by - those who, at best, have refused to affiliate with the party and, at worst have
expressly affiliated with a rival. In this respect, it is qualitatively different from a closed primary. Under
that system, even when it is made quite easy for a voter to change his party affiliation, the day of the
primary, and thus, in some sense to "cross over", atleast he must formally become a member of the
party and once he does so, he is limited to voting for candidates of that party". Court further said:
"Proposition 198 forces petitioners to adulterate their candidate selection process - the basic function
of a political party - by opening it up to a person wholly unaffiliated with the party. Such forced
association has the likely outcome of changing the party's messages. We can think of no heavier
burden on a political party's associational freedom". Court declared the proposition as
unconstitutional.
In EU v. San Francisco County Democratic Central Committee ,53 the Court invalidated several
provisions of Californian election law that banned primary endorsements, imposed restriction on the
organisation and composition of the structures governing the parties, limited terms of office for State,
Central Committee Chairs and required that the post of party Chairman rotate between residents of
Northern and Southern California.
In Democratic Party of US v. Wiscosin ,54 the Court said that the State or a court may not
constitutionally substitute its own judgment for that of the party.

63a)  As in the case of the other primary freedoms such as of speech, press or
assembly, governmental action may be held to constitute an abridgement of the right of
association, not only where the act ion is direct but also where the abridgement, though
not intended, inevitably follows from the governmental action. 55 Thus, a legislation56 or
 443

even a judicial order may be liable to be annulled where its effect would be to
discourage57 the exercise of the right of association, e.g.,--
A court order, that compels a non-commercial association (which is not unlawful), to disclose the list of
its ordinary members,58 such a restriction of the right of association violates 'due process' in the
absence of an overriding social interest.59 Thus, in the case of profit-making associations, such as
those of paid solicitors or foreign corporations, the interest of protecting the general public in their
dealings with such organisations, may justify the State to require them to disclose their membership, 60
but in the case of non-profit making lawful associations, the State has no such interest in the identity
of their ordinary members, as distinguished from the office-bearers. 61
In Buckley v. Valco ,62 the case involved a challenge to portion of Federal Election Campaign Act, 1974
enacted to curb perceived abuses of electoral process, which required every political candidate or
Committee to maintain records of contributors and to disclose to federal regulators the name, address
and in the case of larger contributors, the occupation of each contributor. Court has treated the
contribution and expenditure of money for political purposes as a form of speech, so these forced
disclosure requirements were alleged to infringe freedom of association. The court upheld the
requirement stating that "significant encroachment as First Amendment right of the sort that compelled
disclosure imposes must be justified by exacting scrutiny that involves proof of a substantial relation
between governmental interest asserted and the information required to be disclosed and more than a
mere showing of some legitimate interest in forced disclosure. The court identified three Government
interests that were sufficiently important to meet the standard - (1) disclosure provides the electorate
with information about the source of campaign funding in order to aid voters in their choice; (2) the
disclosure deters actual corruption and avoids the appearance of corruption by public exposure; and
(3) disclosure is an essential means of gathering the data necessary to detect violation of the
contribution limits". Court concluded that disclosure requirements were of direct service to "substantial
Government interest".
On the same principle, though the proper and efficient enforcement of the power of taxation may
sometimes entail the possibility of encroachment upon individual freedom, 63 where the occupational
licence tax of a municipality is aimed at reaching all commercial, professional and business
occupations within the Municipal area, there is no relevant correlation between the power to levy such
tax and the requirement of a compulsory disclosure of the membership of the National Association for
the advancement of the coloured people.64 Of course, if such organisation were to claim exemption
from the tax on the ground that it is a charitable establishment, information as to the specific sources
of its income and expenditure might be a subject of relevant inquiry. 65
The position is otherwise where the statute distinguishes between associations engaging in unlawful
act ivities such as intimidation and other associations. 66

65b)  There is a vital relationship between freedom to associate and privacy in

one's associations.67 Hence, adherents of particular beliefs or political parties cannot be
required to wear identifying arm bands.68
But in view of the Court's acceptance of the legislative verdict that the Communist
Party is a subversive organisation, privacy has been denied to members of the
Communist Party in the following respects--
12. Witnesses before a Congressional Committee have no immunity against
being compelled to answer questions as to their membership of the Communist
Party.69
12. Applicants for admission to the Bar may be compelled to disclose whether
they are members of the Communist Party.70
9. Applicants for public employment may be required to take an oath that they
are not members of the Communist Party.71
 444

In these cases, it was held that the right of the individual to remain silent was counterbalanced by the
public interest, such as investigation into subersive activities by a Congressional Committee or
admission of proper persons to the Bar72, or the public services.73
But such compulsory disclosure has been held invalid--

64a)  where there is no public interest involved, e.g., in allowing a non-trading

association such as an association for the welfare of African Americans to do business in
a State74; or
66b)  where the disclosure required is in excess of the requirement of the relevant
public interest, e.g., where a teacher was required, as a condition for his continuance in
employment, to submit annually a list of all organisations to which he belonged during
the previous 5 years.75
U.K.
(B) England.--Broadly speaking, it is not in England illegal to associate for a lawful object, unless
some unlawful means is adopted. The limitations upon the right of association are thus introduced by
unlawful conduct, and may be considered under the heads:
(i) Conspiracy: (ii) Quasi-military organizations.
(i) Conspiracy.--Conspiracy is both a crime and a tort. The agreement of two or more persons to do
any unlawful act or to do a lawful act by unlawful means, is a crime. The unlawful act which the
conspirators agree to do may be either a crime or a civil wrong. (a) The gist of the offence is the fact of
such agreement or combination; it is not necessary that some overt act should have been done in
furtherance of the agreement. (b) The tort of conspiracy, on the other hand, is constituted only if the
agreed combination is carried into effect and damage to the plaintiff is thereby caused. 76Section 61 of
the Criminal Justice and Public Order Act, 1994 provides for criminalisation of trespass in certain
circumstances. A senior police officer may give a direction to trespassers to leave the land and to
remove any vehicles or other property, they have with them on the land provided that the Officer
reasonably believes that (a) two or more persons are trespassing on land; (b) that those so present
have a common purpose of residing on the land for any period; (c) that reasonable steps have been
taken by or on behalf of the occupier to ask the trespassers to leave; (d) that either (i) any of the
trespassers has caused damage to land or property or used threatening abusive or insulting words or
behaviour to the occupiers of the land or others connected with him, or (ii) the trespassers have
brought six vehicles on to the land. A failure to comply with such a direction is a summary offence.
This provision has been applied to trespassing, including demonstrating or picketing on private land.
A wide variety of offences and torts could be committed by those taking part in assemblies, procession
and demonstration. These include incitement to racial hatred, sedition and offence connected with the
possession of an offensive weapon in any public place. A public procession may easily involve the
common law offence of public nuisance. A public nuisance will be caused if the user of the highway
although reasonable from the point of view of those taking part in the procession is not reasonable
from the point of view of the public. The question depends on the circumstances of the case and may
be affected by the numbers taking part, the occasion, direction, place and hour and also where the
obstruction is trivial, casual, temporary and without wrongful intent. 77 The tort of nuisance may also
apply. Unreasonable interference with the rights of others to use the highway could be a species of
tort of private nuisance which may give rise to an action for damages or the granting of an injunction. 78
Those who picket peacefully for the permitted purposes will not be liable under Criminal Law i.e.,
either the Highways Act, 1980 or Trade Union and Labour Relation (Consolidation) Act, 1992. In that
enactment, picketing is lawful if it is peaceful and for a lawful purpose. Section 220 of that legislation
gives legal authority to obstruct the highway and to watch and beset. If, however, the purpose of picket
is deemed to be causing an obstruction rather than peaceful communication of information, then s.220
of that Act will not prevent those involved from being arrested and convicted.
So far as civil liability is concerned, s. 220 provides immunity from liability for private nuisance where
the pickets are act ing peacefully.79 But it does not provide immunity where the purpose of picket is
 445

adjudged to be to harass others.80 Together with s. 219 and 220 of the Act also gives pickets immunity
in tort for conspiracy inducing breach of contract and intimidation. In this case, however, protection is
of qualified value, for, it applies only where the increasingly tight restriction on the conduct of industrial
act ion has been complied with including the holding of secret ballot and the giving of appropriate
notice to employers. But there may be circumstances where picketing in the course of trade dispute
does not involve the commission of a tort and where as a result of immunity, protection is
unnecessary.81
The Terrorism Act, 2000 (s.12) makes it an offence to organise or to speak at a meeting in the
knowledge that the meeting is to be addressed by a person who belongs or professes to belong to a
proscribed organisation. A meeting for the purpose of this clause is a gathering of three or more
persons whether or not the public is admitted. It is not necessary that the speaker or organiser
supports the proscribed organisation or any form of terrorism.
In Kent v. MPC ,82members of the campaign for Nuclear Disarmament wished to hold a peaceful
protest march in London. The Metropolitan Police Commissioner applied for (with the consent of
Home Secretary) and was granted an order prohibiting all public processions in the Metropolitan area
for four weeks in order to "prevent serious public disorder" under Public Order Act, 1936. On an
application for judicial review, the Court of Appeal said that the decision whether there was a real risk
of serious public disorder should be left to the Commissioner, unless he was at fault or acted ultra
vires. Court took into consideration the serious disturbances in Britain which had taken place few
months back which resulted in serious damage to property and attacks on police. Court held that
problem was not the protestors themselves, whose intention was purely non-violent, but a hooligan
element bent on causing unrest and destruction. Any procession would be, the court said, albeit
unwittingly, provocate to that violent extremist minority. When there was real risk of serious harm if the
procession went ahead, the order of Commissioner was valid.
In this respect, however, the trade unions occupy a favoured position, being (together with its officials)
immune from liability even for unlawful conduct if it takes place in furtherance of a 'trade dispute'. 83
Trade unions, which were recognised as lawful institutions with a legal personality by the Trade Union
Act, 1871, were immunised from legal liability for inducing breach of contract or interference with
business, by the Trade Disputes Act, 1906. A set-back to trade unionism was caused by the
enactment of the Trade Disputes and Trade Unions Act , 1927, which declared illegal 'general strikes'
which seek to paralyse the Government or to inflict hardship on the community. But this act has been
repealed by the Trade Disputes and Trade Union Act, 1946.
(ii) Quasi-military organization.--Militant Fascist organisations of private persons cannot be tolerated
by the State, in the interest of public order. Hence, the Public Order Act, 1936, was passed to enact
that any association is illegal and its members are guilty of an offence, if they are organised or trained
or equipped--(a) for the purpose of enabling them to be employed in usurping the functions of the
police or of the armed forces of the Crown or (b) for the purpose of enabling them to be employed for
the use or display of physical force in promoting any political object.
Besides the above, certain other associations are declared unlawful by statute (Unlawful Societies Act,
1799; Seditious Meetings Act, 1817); (a) A conspiracy having a seditious object, including societies
formed for illegal drilling. (b) A society taking an oath or engagement which is unlawful under the
Unlawful Oaths Act , 1797. (c) A secret society, the names of whose members, etc., are kept secret.
Switzerland.
(C) Switzerland.--Article 56 of the Constitution of Switzerland (1874) provides--
"Citizens have the right to form associations, provided that neither the purpose of the association nor
the means it employs are in any way illegal or dangerous to the State. Cantonal legislation shall enact
the necessary provisions to prevent misuse of this right."
The right of public meeting is also deduced from his Article. 84
U.S.S.R.
 446

(D) U.S.S.R.--Article 51 of the Soviet Constitution of 1977 says--

"ARTICLE 51.--In accordance with the aims of building communism citizens of the USSR have the
right to associate in public organisations that promote their political act ivity and initiative and
satisfaction of their various interests.
Public organisation are guaranteed conditions for successfully performing the functions defined in their
rules."
The right of association, in substance, is guaranteed only to members of the Communist Party. The
objects of a lawful association must also be complementary to those of the State. They must 'co-
ordinate their activities with Government planning in the sphere of national economy, and of social and
cultural reconstruction and to participate act ivity in achieving the current goals of 'Soviet power'. The
law empowers the Authorities to dissolve any association which violates the general policy of the
Soviet power. No association can be formed without a licence from the State, as a result of which it is
not possible for any organisation or party to grow which does not subscribe to the ideology of the
ruling party. Even trade unions function as agencies of the State in the matter of labour
administration.85
Eire
(E) Eire.--Article 40(6)(1)(iii) guarantees, subject to public order and morality--
"The right of citizens to form associations and unions. Laws, however, may be enacted for the
regulation and control in public interest of the exercise of the foregoing right. Laws regulating the
manner in which the right of forming associations and unions and the right of free assembly may be
exercised shall contain no political, religious or class discrimination."86
It has been held by the Irish Supreme Court87 that to deprive a person of the choice of the persons with
whom he will associate, is not a 'control' of the exercise of the right of association, but a denial of the
right altogether. Hence, a law which allows the citizen only to join one or more 'prescribed'
associations, and thereby prohibits the right of forming associations, is not a valid regulation or control
of the exercise of the right 'in the public interest' and is, accordingly, repugnant to the
Constitution.88The object of the Trade Union Act, 1941, was to limit the number of trade unions and to
prevent trade unions from accepting new members. The effect of a 'determination' by the Tribunal set
up by the Act, in favour of a particular union, was that during a period of 5 years no other union could
accept new members. Held, the Act was repugnant to the right of association guaranteed of Art. 40(6)
(1) of the Constitution and therefore void.89
It has also been held that just as the individual has the freedom to join or not to join any association,
so as association has the freedom to accept or not to accept a person as its member 90 unless such a
person has a right to membership under statutory rules.
West Germany
(F) West Germany.--Article 9 of the West German Constitution (1948) provides--

2.  All Germans shall have the right to form associations and societies.
12.  Association, the objects or act ivities of which conflict with criminal laws or
which are directed against the constitutional order or concept of international
understanding, shall be prohibited.
9.  The right to form associations to safeguard and improve working and
economic conditions shall be guaranteed to everyone and all professions. Agreements
which this end shall be illegal." seek to restrict or hinder this right shall be null and void.
Measures directed towards this end shall be illegal." 91
Japan
(G) Japan.--Article 21 of the Japanese Constitution, 1946, says--
"Freedom of assembly and association ............... are guaranteed." 92
 447

Sri Lanka
(H) Sri Lanka.--Article 18(1)(e)(f) of the Constitution of Sri Lanka 1972, says--
"In the Republic of Sri Lanka--

9e)  every citizen has the right by himself or in association with others, to enjoy
and promote his own culture;
6f)  all citizens have the freedom of..................association."93

8 Griswold v. Connecticut, (1965) 381 US 479.

9 Adair v. U.S., (1908) 208 US 178.

10 Griswold v. Connecticut, (1965) 381 US 479; Adair v. U.S., (1908) 208 US 178; National Labour Relations v. Jones,
(1937) 301 US 1.

11 (1986) 479 US 208.

12 NAACP v. Alabama, (1958) 357 US 449.

13 National Labour Relations v. Jones, (1937) 301 US 1.

14 Thornhill v. Alabama, (1940) 310 US 88.

15 Milk Wagon Drivers v. Dairies, (1941) 312 US 287; American Federation v. Swing, (1941) 312 US 321.

16 American Steel Foundries v. Central Trades Council, (1923) 263 US 457.

17 Cox v. Louisiana, (1965) 379 US 559 (568).

18 Grayned v. Rockford, (1972) 408 US 104 (112).

19 Boos v. Barry, (1988) 485 US 312 (332).

20 Boos v. Barry, (1988) 485 US 312 (332).

21 National Assocn. v. Alabama, (1957) 357 US 449 (406-3); Bates v. Little Rock, (1959) 361 US 516 (523); Tashjian v.
Rep. Party, (1986) 479 US 208 214); Munro v. Soc. Party, (1986) 479 US 189 (193, 198).

22 Roberts v. US Jaycees, 468 US 609 (1984).

23 Roberts v. US Jaycees, 468 US 609 (1984) Supra.

24 (1995) 515 US 557.

25 (2000) 530 US 640.

26 (1988) 487 US 1.

27 National Assocn. v. Alabama, (1957) 357 US 449 (406-3); Bates v. Little Rock, (1959) 361 US 516 (523).

28 National Assocn. v. Alabama, (1957) 357 US 449 (406-3); Bates v. Little Rock, (1959) 361 US 516 (523); Tashjian v.
Rep. Party, (1986) 479 US 208 214); Munro v. Soc. Party, (1986) 479 US 189 (193, 198).

29 Sweezy v. New Hampshire, (1956) 354 US 234 (260); N.A.ACP. v. Button, (1963) 371 US 415; Gibson v. Florida
Legislative Committee, (1963) 372 US 539 (543).

30 Tashjian v. Rep. Party, (1986) 479 US 208 214); Munro v. Soc. Party, (1986) 479 US 189 (193, 198).

31 (1957) 357 US 449 (406-3) (supra).

32 See also NAACP v. Button, (1963) 371 US 415.

33 Boos v. Barry, (1988) 485 US 312 (332).

 448

34 Sweezy v. New Hampshire, (1956) 354 US 234 (260); N.A.ACP. v. Button, (1963) 371 US 415; Gibson v. Florida
Legislative Committee, (1963) 372 US 539 (543).

35 N.A.ACP. v. Button, (1962) 371 US 415 (428).

36 United Transportation Union v. Michigan Bar, (1971) 401 US 576; United Mine Workers v. Illinois Bar Assocn.,
(1967) 389 US 217; Brotherhood of Trainmen v. Virginia State Bar, (1964) 377 US 1.

37 Boos v. Barry, (1988) 485 US 312 (332).

38 American Communications v. Douds, (1950) 339 US 382 (383).

39 Sweezy v. New Hampshire, (1956) 354 US 234 (260); N.A.ACP. v. Button, (1963) 371 US 415; Gibson v. Florida
Legislative Committee, (1963) 372 US 539 (543).

40 Rotary International v. Rotary Club, (1987) 481 US 537 (546-548).

41 Roberts v. U.S., (1984) 468 US 609 (619); Moore v. East Cleveland, (1978) 431 US 494 (503).

42 Zablocki v. Redhail, (1978) 438 US 374 (383).

43 Pierce v. Soc. of Sisters, (1925) 268 US 510.

44 American Communications v. Douds, (1950) 339 US 382 (383).

45 NAACP v. Alabama, 357 US 449 (1958).

46 (1982) 458 US 886.

47 (1982) 456 US 212.

48 Roberts v. US Jaycee, 468 US 609 (1984).

49 See also Board of Directors of Rotary International v. Rotary Club of Duarts, 481 US 537 (1987). See also New York
State Club Association v. City of New York, 487 US 1 (1988).

50 Boy Scouts of America v. Dale, 530 US 640 (2000).

51 California Democratic Party v. Jones, 530 US 567 (2000).

52 See also Tashjian v. Republic Party, 479 US 208 (1987).

53 (1989) 489 US 214.

54 (1981) 450 US 107.

55 Tashjian v. Rep. Party, (1986) 479 US 208 214); Munro v. Soc. Party, (1986) 479 US 189 (193, 198).

56 American Communications v. Douds, (1950) 339 US 382 (383).

57 United Transportation Union v. Michigan Bar, (1971) 401 US 576; United Mine Workers v. Illinois Bar Assocn.,
(1967) 389 US 217; Brotherhood of Trainmen v. Virginia State Bar, (1964) 377 US 1.

58 Tashjian v. Rep. Party, (1986) 479 US 208 214); Munro v. Soc. Party, (1986) 479 US 189 (193, 198).

59 Tashjian v. Rep. Party, (1986) 479 US 208 214); Munro v. Soc. Party, (1986) 479 US 189 (193, 198).

60 Tashjian v. Rep. Party, (1986) 479 US 208 214); Munro v. Soc. Party, (1986) 479 US 189 (193, 198).

61 Tashjian v. Rep. Party, (1986) 479 US 208 214); Munro v. Soc. Party, (1986) 479 US 189 (193, 198); Bates v. Little
Rock, (1959) 361 US 516 (552).

62 (1976) 424 US 1.

63 Bates v. Little Rock, (1959) 361 US 516 (552).

64 Bates v. Little Rock, (1959) 361 US 516 (552).

65 U.S. v. Kahriger, (1952) 345 US 22.

 449

66 Bryant v. Zimmerman, (1928) 278 US 63.

67 Shelton v. Tucker, (1960) 364 US 479 (486).

68 Sweezey v. New Hampshire, (1957) 354 US 234 (250).

69 Barenblatt v. U.S., (1959) 360 US 109; Wilkinson v. U.S., (1961) 365 US 399; Nelson v. Los Angeles, (1960) 362 US
1.

70 Konigshberg v. State Bar of California, (1961) 366 US 252.

71 Garner v. Board of Public Works, (1951) 341 US 716; Beilan v. Board of Public Education, (1958) 357 US 399.

72 Barenblatt v. U.S., (1959) 360 US 109; Wilkinson v. U.S., (1961) 365 US 399; Nelson v. Los Angeles, (1960) 362 US
1; Konigshberg v. State Bar of California, (1961) 366 US 252.

73 Garner v. Board of Public Works, (1951) 341 US 716; Beilan v. Board of Public Education, (1958) 357 US 399.

74 Louisiana v. NAACP, (1961) 366 US 293; Bates v. Little Rock, (1960) 361 US 516.

75 Shelton v. Tucker , (1960) 364 US 479.

76 Crofter v. Veitch, (1942) AC 435.

77 Lowdens v. Keaveney, (1903) Irish Reports 82; R v. Clark, (1964) 2 QB 315.

78 Thomas v. N.U.M., (1985) 1 RLR 136; News Group Newspapers Ltd. v. S.O.G.A.T, (1986) 1 RLR 336; Hunter v.
Canary Wharf Ltd., (1997) AC 655.

79 Hubbard v. Pitt, (1976) QB 142.

80 Thomas v. NUMS (South Wales Area), (1986) Ch. 20) (supra).

81 See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law, 13th Edn., at p.559.

82 The Times, 14 May 1981.

83 Huntley v. Thornton, (1957) 1 All ER 234.

84 Hughes, Federal Constitution of Switzerland, 1954, p. 70.

85 Hazard, The Soviet System of Government, 1968, p. 58 et seq.; SCW 333.

86 SCW. (3rd), pp. 196, 208, 219, 284.

87 National Union v. Sullivan, (1947) IR 77.

88 National Union v. Sullivan, (1947) IR 77.

89 National Union v. Sullivan, (1947) IR 77.

90 Tierney v. Amalgamated Society, (1959) IR 254.

91 SCW. (3rd), pp. 196, 208, 219, 284.

92 SCW. (3rd), pp. 196, 208, 219, 284.

93 SCW. (3rd), pp. 196, 208, 219, 284.

INTERNATIONAL CHARTERS
15.  Universal Declaration of Human Rights, 1948;
Article 20 says--
 450

3(1)  Everyone has the right to freedom of peaceful assembly and association.
12)  No one may be compelled to belong to an association."
Article 23 (4) says--
"Everyone has the right to form and to join trade unions for the protection of his interests."
As to limitations, Article 29(2) is94:
"(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as
are determined by law solely for the purposes of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality, public order and the general
welfare in a democratic society."

19I.  International Covenant on Civil and Political Rights, 1966:

Article 22 (1)-(2) provide--

3.  Everyone shall have the right to freedom of association with others,
including the right to form and join trade unions for the protection of his interests.
13.  No restrictions may be placed on the exercise of this right other than those
which are prescribed by law and which are necessary in a democratic society in the
interests of national security of public safety, public order (order public), the protection of
public health or morals or the protection of the rights and freedoms of others. This Article
shall not prevent the imposition of lawful restrictions on members of the armed forces
and of the police in their exercise of this right."
The provision in Art. 11 of the European Convention on Human Rights, 1950, is identical.
94 Barenblatt v. U.S., (1959) 360 US 109; Wilkinson v. U.S., (1961) 365 US 399; Nelson v. Los Angeles, (1960) 362 US
1.
451
 452

DD Basu Commentary on the Constitution of India, Vol 1-4, 9e 2015/Volume 4/PART III FUNDAMENTAL
RIGHTS/Article 19 (Contd.) 3 of 4

INDIA
Freedom of Association, need for
Freedom of Association.--"Freedom of association and assembly are sometimes linked in human
rights documents as they are in the Universal Declaration of Human Rights Act and in the European
Convention on Human Rights (Art. 11). Often, an individual will be claiming the right to associate with
a group in order to make his or her views known publicly and obtain public support. Clearly a protest
or plea for support will be more effective if carried out collectively rather than individually. All free
societies recognise the need, firstly to allow citizens to join or support groups which express a view at
variance with Government views publicly. Allowing citizens to engage in public protest is seen as
being one of the main distinctions between a totalitarian society and a democracy". 95
What a person may legally do, he may do with the assistance and co-operation of others. Individuals
have the right to organize themselves into parties and even into social groups to advance causes and
to circulate their views. Thus, the constitutional right of freedom of association is the right of
individuals to exercise as a group those rights which they may exercise as individuals. This right
affords the right to associate with other persons for a variety of purposes; in general, to further the
social, legal and economic benefit of a group's numbers and association that promotes a "way of
life".96
What does it mean? It was held, "It is beyond debate that freedom to engage in any association for
the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the due
process clause of the Fourteenth Amendment, which embraces freedom of speech. 97 Effective
advocacy of both public and private points of view, particularly controversial ones, is undeniably
exercised by group association, for there is close nexus between freedom of speech and the
assembly.98 The right of association like all other rights of the citizens is derived from the principle that
a man may do what he likes and therefore associate with whom he likes provided that no law is
thereby broken. The rights of association and assembly consist in the liberty of two or more persons to
associate or meet together, provided they do not thereby infringe any particular rule of common law or
statute. Those who take part in an association or assembly will infringe the law if either their object is
unlawful or they pursue or threaten to pursue their object by unlawful means. Politically the most
important aspect of the right of association is the freedom to form political parties, but public law has
affected formation of most of the trade unions. Public meetings and processions have engaged the
attention of the Courts and the Legislature a good deal in the past; and although the old political or
election meeting has largely given way to the radio or television talk, this subject (i.e., association) has
retained some of its importance, as recent 'peace' demonstrations show". 99
Two vital elements of an association are members and a common purpose for which they associate.
Associate implies joining with another or others as companion partners, etc.100 Having regard to the
ordinary meaning of the word "association" and to the meaning which is generally assigned to it in
legal literature, there is no doubt that the right to form an association does include formation of
companies.101
Human beings are everywhere members of groups. They are utterly dependent on their relations with
one another within those groups dependent on their nature, their modes of living, their economic and
spiritual sustenance and the continuance of their species. An association is a group organised for the
pursuit of an interest or group of interest in common. 102 At p. 437 of the same book, the learned author
says: "An association is likely to be formed wherever people recognise a like complimentary or
common interest sufficiently enduring and sufficiently distinct to be capable of more effective
promotion through collective act ion provided their differences outside the field of this interest are not
so strong as to prevent the partial agreement involved in its formation".
 453

Freedom of association includes freedom to choose membership and a right to associate with others
in pursuit of a wide variety of political, social, economic, educational, religious and cultural ends. An
individual's freedom to speak, to worship and to petition to Government for the redress of grievance
could not be vigorously protected from interference by the State unless a correlative freedom to
engage in group efforts towards those ends were not also guaranteed. 103 A right to associate may also
include not to associate.104 In that case, the validity of a State law that authorised "agency shop"
collective bargaining for public employees was in challenge. In an agency shop, a union representing
all workers in a work place is entitled to withhold a "service charge" from the pay packets of non-union
members equal to union dues collected from union members. A non-union public teacher asserted that
the agency shop practice violated his First Amendment right because he did not believe in collective
bargaining and because the union used his money to advocate political position, with which he
disagreed. The court rejected the first contention, but accepted the second. The court reasoned that
the agency shop arrangement was justified by the interest of (1) effective maintenance of collective
bargaining; (2) ensuring labour peace, and (3) preventing "free riders" by distributing the cost of
collective bargaining among all who benefit even those who prefer to do without those benefits.
However, forced support for repugnant ideologies comes is just another form of compelled speech,
said the court.
It has been recognised that there is vital relationship between freedom to associate and privacy of
one's association and that inviolability of privacy in group association may in many circumstances be
indispensable to preservation of freedom of association, particularly where a group espouses
dissident beliefs. In NAACP v. Alabama ,105 the Supreme Court by a unanimous decision held that the
association had the right to protect its members and it is not bound to disclose the list of their
members and the right of the member is protected by Fourteenth Amendment to the State action. It
was held that an order to produce the list trespasses upon the fundamental freedom protected by the
'Due Process Clause' of the Fourteenth Amendment, and must be regarded as curtailing the likelihood
of a substantial restraint upon the exercise by the members of the association of their right to form the
association.
Freedom of association is one of the pillars of democracy. That is the reason why the international
community gave recognition to it in Art. 22 of the International Covenant on Civil and Political Rights,
1966 and in Art. 11 of the European Convention on Human Rights, 1950. Article 22 of the Covenant
provides:-- "(1) Everyone shall have the right to freedom of association with others, including the right
to form and join trade union for the protection of his interests. (2) No restriction may be placed on the
exercise of the rights other than those which are prescribed by law and which are necessary in a
democratic society in the interests of national security or public safety, public order, the protection of
public health or morals or the protection of the rights and freedom of others. This Article shall not
prevent the imposition of lawful restriction on members of armed forces and of the police in exercise of
this right".
If free discussion106 or the freedom to meet for consultation with others 107 be essential to democracy, no
less essential would be the freedom to form political parties to discuss questions of public importance
and to canvas for the acceptance by the Government in power for the time being of alternative
solutions through constitutional methods.
But it is merely for political purposes that freedom of association is essential for democracy; it is
essential for the maintenance of the other rights guaranteed to the individual by the Constitution or the
law. Prima facie, the right to form associations is the greatest bulwark against power in any form.
Where a single voice cannot make itself heard, that of the multitude certainly can. In the words of
LORD DENNING:108
"If men are ever to be able to break the bonds of oppression or servitude, they must be free to meet
and discuss their grievances and to work out in unisona plan of act ion to set things right."
As association may thus take diverse forms according to the purpose for which it is formed. An
association, according to Cole, is "any group of persons pursuing a common purpose or system or
'aggregation of purposes by a course of co-operative action extending beyond a single act, and for
 454

this purpose, agreeing together upon certain methods of procedure and laying down, in however
rudimentary form, rules of common action." It is--
"a collection of persons who have joined together for a certain object, which may be for the benefit of
the members or the improvement, welfare or advantage of the public or some scientific, charitable or
similar purpose."109
"The right of association presupposes organisation and a relation of permanence between the
persons."110
In Keller v. State Bar of California ,111 and in Lehnest v. Ferris Faculty Association ,112 the Court held
that a faculty union could not use compulsory dues for political purposes unrelated to the economic
objectives of the union's members as embodied in collective bargaining.
The importance of freedom of association in a modern society can be assessed only if we take
account of the part which voluntary associations are playing today. In the words of ROBSON113:
95 See Helen Fenwick, Civil Liberties,1994 Edn. at p. 229.

96 See Justice (R) Fazal Karim, Judicial Review of Public Action, 2006 Edn., Vol. I at p. 699.

97 Tashjian v. Republic Party, 479 US 208 : 93 L.Ed. 514.

98 National Association for Advancement of Coloured People (NAACP) v. Alabama, (1958) 357 US. 449.

99 Hood Philips, Constitutional & Administrative Law, 3rd Edn., Chapter 26, p. 477.

100 Ramashankar Kaushik v. Election Commission of India, AIR 1974 SC 445 : (1974) 1 SCC 271.

101 Progress of Pakistan v. Registrar, PLD 1958 (WP) Lahore 889. Justice (R) Fazal Karim, Judicial Review of Public
Action, 2006 Edn., Vol. I at p. 699.

102 Jagdish Swarup, Human Rights & Fundamental Freedom, at p.121.

103 Roberts v. U.S., 468 US 609 : 82 L.Ed. 462. (1984).

104 Abood v. Detroit Board of Education, 431 US 209 : 52 L. Ed. 261.

105 NAACP v. Alabama, (1958) 357 US 449 (supra).

106 Thornhill v. Alabama, (1940) 310 US 88.

107 U.S. v. Cruikshank, (1875) 92 US 542.

108 Denning, Road to Justice, 1955, p. 98.

109 Ballentine, Law Dictionary, 1948, p. 118.

110 Wills, Constitutional Law.

111 (1990) 496 US 1.

112 (1991) 500 US 507.

113 All India Bank Employees' Assocn. v. N.I. Tribunal, AIR 1962 SC 171 (179) : (1962) 3 SCR 269.

"The association and co-operation of human beings in voluntary groups is one of the most important
facts of social development. As life becomes more highly organised and complex, the groups formed
by men and women associating freely or particular purposes increase in number, size, power and
diversity. In England today, for example, it is impossible even to enumerate the countless thousands of
voluntary associations which exist for one purpose or another. Learned author has further said,
"These societies exist for the most part with the object of furthering a purpose common to the
members and for protecting the interests of the members in the fulfilment of that purpose. The
 455

purpose of voluntary societies extends over a vast field, ranging from the profession of a religion to
playing of bowls, from the pursuit of a gainful occupation to the furtherance of archaeological
research, from the promotion of vegetarianism to the mere sharing in common a club-house and
social amenities.
The legal status of these bodies varies in English Law according to the nature of their origin. Thus, a
trading group, if it is created in accordance with the statutory provisions of the Companies Act , will in
law become a corporation and stands possessed of all the privileges attached to the anthropomorphic
personality with which our lawyers have invested such bodies. It will be only a partnership if the
relations of the individuals are crystallised in a deed of partnership. An organised body of scientists
may receive a charter from the Crown and become incorporated thereby; or they may remain a
voluntary society, hardly recognised by the law of England. The legal status of a group is often a
matter of considerable consequence, particularly in England, where very little legal recognition is given
to the myriads of unincorporated societies which exist, despite the dominant part which they play in
many spheres of national life. ....Taken in the aggregate, the voluntary associations, with membership
rolls running into many millions and a huge accumulation of property, present a formidable array of
power; and their activities extending to almost every field of human act ivity--economic, professional,
religious, educational, political, scientific, artistic, athletic, social and one knows not what else."1
An Association is not a citizen and hence cannot invoke the writ jurisdiciton for alleged violation of
fundametal rights under Art. 19.2
Scope of the right
While in the Constitution of the U.S.A., there is no specific guarantee of the freedom of association
and the Supreme Court was obliged, by the force of circumstances, to deduce it from the word 'liberty'
in the Due Process Clause, in India, the right to form 'associations and unions' is secured by Art. 19(1)
at par with the freedom of speech, assembly and the like.
It would follow from the above that--

16.  Freedom of association includes the right to form an association for any
lawful purpose3e.g., companies, partnership societies, trade unions,4i.e., for the pursuit of
any common interest of a group of people,5 having a community of interest.6 In that case,
court said: "The right to form an association implies that several individuals get together
and form voluntarily an association with a common aim, legitimate purpose and having a
community of interest".
The right to association like other fundamental rights guaranteed in Part III of the Constitution,
represents as observed by JUSTICE BHAGAVATI in Maneka Gandhi v. UOI ,7 one of the basic values
cherished by Indian people since Vedic times. Therefore, its guarantee, like that of other fundamental
rights is calculated to protect the dignity of individual and conditions in which every human being can
develop his personality to the fullest extent. Looked at from a different perspective, this right is of great
significance in all democratic societies including ours, for, human liberty, which is inherent in the very
concept of 'democracy', would remain incomplete "if man is denied the right to associate with others
and discuss corporate problems with colleagues and participate in corporate life. 8 By the same token
the right to form an association is an indispensable political tool for the effective use of the process of
popular Government. Besides, the right is vital not only for the maintenance of the other democratic
rights like the right to practise one's religion, the right to acquire property and the right to carry on
one's profession, etc. but also for combating other social evils prevalent in society. In V.G. Rao v.
State Madras ,9 one of the learned judges also said: "Government by public opinion involves the right
to create and organise opinion with a view to influence the conduct of Government or to bring about a
change in the Government. Freedom to associate is necessary for the propagation of ideas and for
combating social, economic and political evils and injustice".
The importance of the right to form association in contemporary democratic societies can be fully
realised only when one appreciates the role that the voluntary association play in preservation of
democracy. To quote PROF. PFEFFER, "Today we are beginning to recognise that association even
those competing in some degrees with the State for loyalty and sovereignty of individuals need not be
 456

inimical to democracy. Quite the contrary, with the ever expanding scope of governmental activities
and jurisdiction and the magnitude and increasing complexity of modern social life, voluntary
association, religion, political, economic, cultural, fraternal, social have become an indispensable ally
in the struggle to preserve democracy.10 The word 'union' has been added to Cl. (1)(c) only by way of
abundant caution. Every citizen has fundamental right to form an association and formation of a co-
operative society is certainly is one form of association.11 The right guaranteed under Art. 19(1)(c) not
only includes the right to start an association, but also to continue it. It also includes the right that the
composition of a society shall not be altered by law as to introduce members other than who
voluntarily join the society, without the consent of members of the original association. It was held that
a special officer of a co-operative society has no power to induct or enrol new members. 12
Article 19(1)(c) guarantees to form an association or union, not only against executive interference,
but also against legislative encroachments. This right is guaranteed to all Indian citizens except
military personnel whose rights have been legislatively modified by Parliament pursuant to its powers
conferred under Art.33 of the Constitution. Parliament has enacted Army Act 1950, Air Force Act ,
1950 and Navy Act 1957 pursuant to its powers conferred under Art.33 of Constitution. Sections 21
of the Army Act and Air Force Act and Sections 19 of the Navy Act authorise the Central
Government to make rules restricting the right of association in its application to military personnel.
The Central Government has framed rules and has almost taken away this right from the military
personnel.
Does the right to form association or union have extra-territorial operation? Although this question has
not been considered in the context of Art.19(1)(c) as such, it has been answered in the affirmative by
the Supreme Court in Maneka Gandhi v. UOI,13 in the context of its examination of the scope of
Art.19(1)(a). In that case, passport of the petitioner, a journalist by profession, was impounded by an
order under Sections 10(3)(c) of Passports Act , 1967, without disclosing reasons. The petitioner
having been in effect prevented from going abroad in connection with her professional activities,
questioned the validity of the impounding order as well as the provisions authorising the issuance of
the order on the ground, inter alia, that they violate her rights under Art.19(1)(a) of the Constitution. It
was argued that the right to go abroad was a peripheral right emanating from the right to freedom of
speech and expression and that, therefore, it was covered by that right. In this context, it became
necessary to consider the question posed above. The Supreme Court declared in substance that
fundamental rights guaranteed in Art.19(1)(a), (b), (c) and (g) have extra-territorial operation (as per
opinion expressed by BEG CJ., CHANDRACHUD, BHAGAWATI AND KRISHNA IYER at pp. 609, 615
and 637 and 662-663 respectively in AIR). JUSTICE BHAGAVATI who delivered the leading judgment
observed: "It was this vast conception of man in society and universe that animated the formulation of
fundamental rights and it is difficult to believe that when Constitution masters declared these rights,
they intended to confine only within the territory of India".

67b)  It has already been seen that the freedom implies the freedom to form an
association of any lawful purpose14. Hence, if the State seeks to restrict the normal
functioning of an association, that amounts to a15 restriction, the reasonableness of which
shall have to be determined under cl. (4) of Art. 19. In other words, any law which
renders the formation of a trade union quite illusory would constitute a restriction upon
the right guaranteed by Art. 19(1)(c). 16 Any legislative attempt by the State to compel the
members of an association to resign from membership would be, perhaps, derogatory to
the rights guaranteed under Art. 19(1)(c) as it would render the right ineffective and
illusory. Hence Rule 48 of Central Civil Services (Conduct) Rules, 1955, which inter alia
sought to prohibit Government servants from continuing the membership in an
association which has not obtained recognition within six months of its formation, or
which has been refused recognition within six months of its formation was held violative
of Art.19(1)(c).17 However, it has been held that the imposition of condition for according
recognition to an association by the Government does not make the requirement of
recognition obligatory.18 It was also held in the same case that the right guaranteed under
Art.19(1)(c) does not subserve the right to recognition.
 457

46c)  The word 'form' does not necessarily confine the right to the commencement
of the association. The right includes the right of continuance of the association as well.19
17d)  It also includes the right that the composition of a society shall not be so
altered by law as to introduce members other than those who voluntarily joined to form
the society,20 without the consent of members of the original association. 21
It was held that once the citizens have formed an association, voluntarily, then without any option
being given to the members, neither can their membership be taken away nor can they be compelled
to associate themselves with members with whom they did not want to associate. The right to form an
association can be effective only if it is held to include within it the right to continue the association
with its composition as voluntarily agreed upon by the persons forming the association.
In Asom Rastrabhasa Prachar Samithi v. State of Assam ,22 a registered society was temporarily taken
over, which failed to make any provision for restoration of the elected body in due course. New
members were nominated for which no norms were laid and elected members as per bye-laws was
completely kept away from the management. It was held that it is violative of Art. 19(1)(c).
According to W.A. ROBSON, in his book on Justice and Administrative Law:23
"One of the fundamental characteristics of a voluntary society is the notion that it should be
autonomous, and that its powers of self-Government should not be interfered with save in exceptional
circumstances. What those powers are will depend in every case on the constitution of the
association, which is to be found in the rules of membership or in the royal charter or in the
memorandum or articles of association or in the provision of the empowering statute, or sometimes
even in the persistent record of history or the low murmur of tradition. But these powers of self-
Government are usually considerable in extent.
The power to exclude from membership persons regarded as not suitable or desirable is one of the
most elementary powers possessed by nearly all voluntary associations, save in the case of a few
bodies which exert entire control over a profession or occupation and which as a result are compelled
by law to admit membership individuals possessing specified qualifications, unless good reason to the
contrary exists. But this ability to refuse admittance is not so much a jurisdiction exerted over the
numbers themselves as a kind of negative power to exclude the rest of the world.
Much more important is the right to expel a person who is already a member for an offence against
the common code of conduct prescribed by the society. This, indeed, is usually the most severe
penalty which can be imposed by a voluntary association. To be expelled from a vocational
association may mean economic disaster; to be turned out of an exclusive club may ruin a man
socially".
Even though Constitution has guaranteed the right to form an association, no citizen has a
fundamental right under Art. 19(1)(c) to become a member of a voluntary association or a co-operative
society. Voluntary associations and co-operative societies being governed by statute, right to become
a member or to continue as a member is a statutory right. On fulfilment of the qualifications presented
by the Statute or Rules, one may become eligible for membership thereof. If a person is refused
membership in an association or society, the legality of such order has to be considered on the anvil of
the provisions of the Act, Rules or bye-laws. Statutes can make provision with the composition or
functioning of the association which are created, controlled and governed by statute. Legislative
provisions can also be introduced in the statutes concerned for eliminating qualifications for
membership based on sex, religion, persuasion or mode of life. In the absence of any legislative
mandate regarding the same, courts or authorities acting under the statute cannot coin a theory that a
particular byelaw is not desirable and would be opposed to public policy as indicated in the
Constitution. A byelaw which provides for membership only to Parsi Community was upheld. 24 The
right to form an association which was voluntarily formed necessarily implies that persons forming the
association have also the right to continue to be associated with only those whom they voluntarily
admit in the association. Any law by which members are introduced in the voluntary association
without option being given to the members to keep them out or any law which takes away the
membership of those who have voluntarily joined it, will be a law violating the right to form an
 458

association.25 Where an unregistered society was by statute converted into a registered society, which
bore no resemblance whatsoever to the original society and new members were admitted in large
numbers so as to reduce the original members into a minority, the court said that composition of
society was transformed by the Act and voluntary nature of the association of the members who
formed the original society was totally destroyed and hence violative of Art.19(1)(c). 26
The freedom guaranteed under Art.19(1)(c) is not restricted merely to the formation of the association,
but in the effective functioning of the association so as to enable it to achieve the lawful objectives. 27 In
Narayana Reddy's case,28court also said that Art.19(1)(c) guarantees to all citizens the right to form an
association or union of their choice voluntarily, subject to reasonable restriction imposed by law.
Formation of union under Art. 19(1)(c) is a voluntary act, thus unwarranted or impermissible statutory
intervention is not desired.
As regards the question whether the right to form an association or unions includes a negative right
not to form an association or unions including the right not to be compelled to become a member of an
association, the present law is not very clear. While some High Courts have taken the view that
positive right to form an association includes negative right also, 29 the Supreme Court's view is far from
clear. In Tika Ramji v. State of UP ,30 JUSTICE BHAGAWATI held as follows: "In the first place,
assuming that the right to form an association implies a right not to form an association, it does not
follow that the negative right must also be regarded as a fundamental right. The citizens of India have
many rights which have not been given the sanctity of fundamental rights and there is nothing absurd
or uncommon if the positive right alone is made a fundamental right. The whole fallacy in the
argument urged on behalf of the petitioner lies in this that it ignores that there is no compulsion at all
on any cane grower to become a member of Cane Growers' Co-operative Society". 31
Though Art. 19(1)(c) gives freedom to form association, when the same is controlled by co-operative
societies Act, the Government has power to invoke the reservation policy. Provision for reservation of
seats for weaker sections of society will not be interfered with by court. 32
Similar view was held in State of U.P. v. C.O.D. Chheoki Employees' Co-operative Society Ltd .33It was
held that where a society is formed as per provisions of the Act, provisions for reservation in
management as contemplated under Art. 15(4) also could be made, and a member of the society
cannot challenge the same.34 Provisions which restrains the management in the affairs of a co-
operative society taking into consideration the welfare and interest of general public is not violative of
Art. 19(1)(c).35 But a provision whereby a non-existent management Committee is revived and existing
Committee become non-existent would be violating of Art. 19(1)(c). 36
This principle shall, however, not applicable where the formation of the association was not a
voluntary act on the part of the members, but the creation of a statute and the association was all
along being governed by the conditions laid down by statute. 37

10e)  Nor can the Government impose such a condition as compels the members
to withdraw their membership.38 But there is no infringement of this right by a provision
for the compulsory affiliation of a college, established by a society, with a particular
university. The freedom of association under Art.19(1)(c) implies association between
citizens. In the case of an educational institution which is formed by a society, for
affiliation with a University, Art. 19(1)(c) cannot apply since university is a corporate
body. Further, the right guaranteed under Art. 19(1)(c) does not carry with it a
concomitant right that the Association shall achieve its object such that any interference
in such achievement by any law would be unconstitutional unless it could be justified
under Art. 19(4), as being in the interests of public order or morality. 39
A right to form an association guaranteed under Art.19(1)(c) does not imply the fulfillment of every
object of an association as it would be contradictory to the scheme underlying the text and the frame
of several fundamental rights guaranteed by Part III and particularly by the scheme of the guarantee
conferred by sub-clause (a) to (g) of clause (1) of Art. 19. 40 The Supreme Court has held that the right
guaranteed under Art.19(1)(c) does not carry with it a concomitant right that unions formed to protect
the interests of labour shall achieve their object such that any interference to such achievement by
 459

any law would be unconstitutional unless it could be justified under Art.19(4) as being in the interest of
public order or morality. The right under Art.19(1)(c) extends only to the formation of an association or
union and in so far as the activities of the association or unions are concerned or as regards the steps
which the union might take to achieve its object; they are subject to such laws as may be framed and
such laws cannot be tested under Art.19(4). The court has held that even a liberal interpretation of
Art.19(1)(c) cannot mean that the trade unions have a guaranteed right to strike. The right to strike
may be controlled by appropriate industrial legislation.41

7f)  The freedom also implies the right to refuse to belong to any association or
union, if a person so desires.42 While considering the scope of freedom of speech and
expression, it was held that the right includes the negative right, i.e., right to freedom of
speech and expression includes right to decline to listen. It was held that right to speech
implies right to silence.43 Learned judge S.N. DWIVEDI of Allahabad High Court, in his
article "Right to Group Line under the Constitution, its Nature and Scope", has stated
that the "right" in Art. 19(1)(c) is used really in the sense of "power". Power implies
discretion; discretion implies choice. So, Art. 19(1)(c) grants the citizen the power to
choose between being a member or not being a member of an Association. In other
words, Art. 19(1)(c) gives him the power to become a member of an association of his
own choice. Absent this choice, there is really no freedom at all. Granted this freedom of
choice, it is plain that the right is not to form an association is not a new and distinct
right; it is an integral part of the right of association. This interpretation of Art. 19(1)(c)
conforms with the traditional concept of freedom to be let alone as well as international
law. The Universal Declaration of Human Rights expressly declares that "no one may be
compelled to belong to an association". The different view will give alarming power to the
Legislature to make a law compelling all men to become members of a particular political
party or religious society. It makes easy way for the single party state which is anti-
ethical to the indwelling humanism of Art. 19(1)(c)".44 The freedom to form an association
or union also implies the right to refuse to belong to any association or union. 45 Right to
silence being a negative of freedom of speech is recognised. 46
It is already stated that in Tika Ramji's case,47 court observed that citizens of India have many rights
which have not been given sanctity of fundamental rights and there is nothing absurd or uncommon if
the positive right alone is made a fundamental right. The whole fallacy in the argument of the
petitioner lies in this that it ignores that there is no compulsion at all on anyone cane grower to
become a member of Cane growers' co-operative society. These findings of JUSTICE BHAGWATI,
according to learned author H.M. SEERVAI are not correct and in fact the very judge himself has
expressed a contrary view in a later case48 wherein it was held that freedom involves absence of
restraint or control from outside.49 In Sitaramacharya v. Dy. Inspector of Schools ,50AP High Court held
that the right to form an association necessarily implies that a person is free to refuse to be a member
of an association if he so desires and therefore a rule making it compulsory for every teacher to
become a member of a Government sponsored association at the risk of suffering disciplinary act ion
in case a teacher absents from two consecutive meetings infringes Art.19(1)(c).
The Unlawful Activities (Prevention) Act, 1967 enables the Government to declare by a notification in
the official Gazette an association as unlawful on certain grounds in 2(f) of the Act. To keep control
over the Government power, provision has been made for appointment of a tribunal consisting of a
sitting High Court judge. A notification declaring an association unlawful is not final or effective till it is
confirmed by the tribunal.
In Narayanan Prasad v. Indian Iron & Steel Co .,51 the Iron and Steel Amalgamation Ordinance was
challenged on the ground that it is violative of Art.19(1)(C). The contention was repelled by court
saying that ordinance did not interfere with the right of shareholders to form an association, for they
could after the amalgamation sell their shares, if they did not want to continue as members.
In the above observation, the Court appears to have applied the principle that any law which subjects
the exercise of fundamental right to the condition of prior permission, is necessarily invalid. 52
 460

5g)  Since the right to form a union belongs to all workmen, every workman
under an employer has the freedom to from a union of his own choice and to refuse to
become a member of any union he does not like.53 Conversely, no union can claim a
monopoly right or a right to complain if some other union is brought into existence by
other workmen.54
3h)  Subject to derogation in the case of members of the Armed Forces, under
Art. 33, post, Government servants are not excluded from the protection of Art. 19(1)(c). 55
Fundamental right under Art.19(1)(c) can be claimed by Government servants. A
Government servant may not lose his right under Art.19(1)(c) by joining Government
service. But the right guaranteed under Art.19(1)(c) to form association does not involve
a guaranteed right to recognition thereof as well. In Delhi Police Non-Gazetted
Karmachai Sangh v. UOI ,56 the Supreme Court upheld the validity of the Police Forces
(Restriction of Rights) Act, 1966 which imposes certain restriction on the enjoyment of
fundamental rights on members of police force. The Act was enacted under Art.33, which
is also valid under Art.19(4).
A rule compelling a member of police force to withdraw his membership of an association as soon as
the recognition is withdrawn or if no recognition is granted to it would be protected under Art.33. It is
also protected by Art.19(4) as it is a reasonable restriction on the right guaranteed under Art.19(1)(c)
in the interest of discipline and public order.
Under Art. 33, the rights conferred by Art. 33 of the Constitution can be restricted or abrogated in
respect of categories of personnel mentioned therein to ensure proper discharge of their duties and
maintenance of discipline among them. After the amendment of the Constitution by the Constitution
(Fiftieth Amendment) Act, 1984, Art. 33 covers Intelligence Organisation. Hence, a ban on Intelligence
Organisation employees forming an association of certain types would not be covered by Art.19(1)(c)
and 19(4).57
It has been held that although the Government servants do have a fundamental right to form
association, it comes to an end where the right of others to hold their property begins. 58 As regards the
right of Government servants to strike, it is not a right that could be claimed under Art.19(1)(c). 59
On the other hand--

1I)  The right guaranteed by this clause is the ordinary right which is enjoyed by
all citizens to form associations; it has no reference to a right which is conferred by a
particular statute to act as a member of a body which is the creation of statute itself. 60 In
the case of a right created by statute, Art. 19(1)(c) would not be attracted at all; hence,
no question of unconstitutionality of any restriction imposed by such statute arises, even
though such restriction cannot be supported on any of the grounds specified in Cl. (4) of
Art. 1961. An ambit of a statutory right is to be found exclusively from that statute. 62 Thus--
The Bombay Industrial Relations Act , 1945, provides that in order to be registered as a
"representative union" so as to be entitled to represent with the employers, a union must have a
minimum membership of 15% of the total number of employees employed in any industry in any local
area. This provision was challenged on the ground that it infringed the provisions of sub-clause (c) of
Art. 19(1). Held, there was no infringement of Art. 19(1)(c) for no restriction was imposed upon the
freedom of the workers to form any Union. The only provision was that in order to represent the
interests of the entire body of the workers in any industry, a union must enlist a prescribed minimum of
membership. It was open to any union of workers to enlist the prescribed percentage of membership
and claim the privilege. The constitutional right to form a trade union does not carry with it any right of
every individual union to represent its members in an industrial dispute and that any conciliatory law
which provides for representation of labour by 'representative' unions, e.g., by providing that only
those unions which represent not less than 15% of the workers in an industry would be recognized for
the purpose or representing the workers of that industry in an industrial dispute does not constitute a
'restriction' upon the freedom of association.
 461

Right to contest the election of the Students' Union is not the part and parcel of education. In such
circumstances, the provision for Students' Union for the purpose of participation of the student in the
act ivities of the college cannot include the right to elect the office bearers through election or a right to
insist upon the college to hold election of the office bearers of Student Union. 63
In Tinker v. Des Moines Independent Community School Dt.,64 the Court said that First Amendment
right applied in light of special characterisation of the school environment, are available to teacher and
students. It can hardly be argued that either student or teachers shed their constitutional right of
freedom of speech or expression of the school hours. 65
In Zorastrian Co-operative Housing Society Ltd. v. District Registrar of Cooperative Societies
(Urban),66 members of Parsi Community formed a co-operative housing society under the Local Act,
i.e., Gujarat Co-operative Societies Act 1961. A byelaw of the housing society confined its
membership to Parsi Community only. From a member, the plot with building was purchased by a non-
Parsi, who was excluded from the membership. The Registrar of the co-operative society gave a
direction to provide membership since the clause violated Art. 15(1). High Court confirmed that view
by dismissing the writ petition by the society. The society took the matter before the Supreme Court,
which allowed the writ petition. It was held, "Membership in a co-operative society only brings about a
contractual relationship among the members of forming it subject of course to the Act and the Rules.
One becomes a member of a co-operative society either at the time of formation or acquires
membership in it or possessing the requisite qualification under the byelaws of the society and on
being accepted as a member. It is not as if one has a fundamental right to become a member of a co-
operative society. But certainly, if the application of one for membership who is otherwise qualified to
be a member under the Act, Rules and byelaws of the society, is rejected unreasonably or for frivolous
reasons, the person may be entitled to enforce his claim to become a member in an appropriate forum
or Court of law. ... But when there is no legislative intervention which prohibits membership on the
basis of sex, or religion, it is not open to the Court to coin a theory that a particular byelaw is not
desirable and would be opposed to public policy as indicated in the Constitution. It was also held that
once a person becomes a member of a co-operative society, he loses his individuality qua the society
and he has no independent rights except those given to him by the statute and byelaws. The byelaws
of a co-operative society setting out the terms of membership to it, is a contract entered into by a
person when he seeks to become a member of that society. Even the formation of the society is based
on contract. This freedom to contract available to a citizen cannot be curtailed or curbed relying on the
fundamental rights enshrined in Part III of the Constitution against State action. ... When a person
exercises his right of association when he becomes a member of the society, the members
constituting it and sub-merging his rights in the common right to be enjoyed by all and he is really
exercising his right of association guaranteed by Art. 19(1)(c) of the Constitution in that process. His
rights merge in the rights of the society and are controlled by the Act and byelaws of the society". 67
The co-operative movement by its very nature is a form of voluntary association where individuals
unite for mutual benefit in the production and distribution of wealth upon principles of equity, reason
and common good. So, the basic purpose of forming a co-operative society remains to promote the
economic interest of its members in accordance with the well-recognised co-operative principles.
Members of an association have the right to be associated only with those whom they consider
eligible to be admitted and have right to deny admission to those with whom they do not want to
associate. The right to form an association cannot be abridged by forced inclusion of unwarranted
person in a group. Right to associate is for the purpose of enjoying expressive activities. The
constitutional right to freely associate with others encompasses associational ties designed to further
the social, legal and economic benefits of the members of the association. By statutory intervention,
the State is not permitted to change the fundamental character of the association or alter the
composition of the society itself. The significant encroachment upon associational freedom cannot be
justified on the basis of any interest of the Government. However, when the association gets
registered under Co-operative Societies Act , it is governed by the provisions of that Act and rules
framed thereunder. In case the association has an option/choice to get registered under a particular
statute, if there are more than one statute operating in the field, the State cannot force the society to
get itself registered under a statute for which the society has not applied.
 462

Co-operative law is based on voluntary act ion of its members. Once a society is formed and its
members voluntarily take a decision to get it registered under the 'X' Act, the registration authority may
reject the registration application if conditions prescribed under 'X' Act are not fulfilled or for any other
permissible reason. The registration authority does not have a right to register the society under the 'Y'
Act or even a superior authority is not competent to pass an order that the society will be registered
under 'Y' Act . Such an order, if passed, would be in violation of the first basic principle that every
action shall be desired by its members voluntarily. Introducing such a concept of compulsion would be
violative of Art.19(1)(c) of the Constitution. It is not permissible in law to do something indirectly, if it is
not permissible to be done directly.68

2II)  The freedom of association guaranteed by this article cannot include a right
of any particular association to obtain the recognition of the Government 69. Hence, the
conditions imposed by Government for obtaining recognition cannot be challenged as
unreasonable restrictions imposed upon the freedom of association. 70 While the right to
freedom of association is fundamental, requisition of such association is not a
fundamental right and Parliament can by law regulate the working of such association by
imposing condition and restriction on such formation. 71(See, further, next caption).
1III)  The freedom of association guaranteed by Art. 19(1)(c) does not imply that
apart from non-interference with the formation of an association, the State must, further,
ensure the fulfilment of the objects or purposes for which such association had been
formed.72 After an association has been formed and the right under Art. 19(1)(c) has
been exercised by the members forming it, they have no right to claim that its act ivities
must also be permitted to be carried on in the manner they desire. 73 In TELCO Ltd. v.
State of Bihar ,74 a Constitution Bench of the Supreme Court held that a fundamental
right to form an association cannot be coupled with the fundamental right to carry on
trade or business.
As soon as citizens form a company, the right guaranteed to them by Art. 19(1)(c) has been exercised
and no restraint can be placed on that right and no infringement of that right is made. Once a
company or a corporation is formed, the business which is carried on by the company or corporation is
the business of the company or corporation and is not the business of citizens who get the company
or corporation formed or incorporated and the right of the incorporated body must be judged on that
footing alone and cannot be judged on the assumption that they are the rights attributable to the
business of individual citizens. The right under Art. 19(1)(c) does not comprehend any concomitant
right beyond the right to form an association and the right relating to the formation of an association. 75

1IV)  As to the concomitant right of an association after it is formed, they cannot

be different from the rights which can be claimed by the individual citizens of which the
association is composed.76 The reason is that Art. 19 grants rights to the citizens as such
and associations can lay claim to the fundamental rights guaranteed by that Article solely
on the basis of their being an aggregate of citizens composing the body. 77 Thus, while
the right to form a union is guaranteed by sub-clause (c), the right of the members of the
association to meet would be guaranteed by sub-clause (b), their right to move from
place to place by sub-clause (d), and so on.78 To hold otherwise would mean that while in
the case of an individual citizen to whom a right to carry on a trade or business is
guaranteed by sub-cl. (g) of Clause (1), the validity of a law which imposes any
restriction on this guaranteed right would have to be decided by the criteria laid down in
Clause (6), if he was associated with another and carried on the same activity, as a
partnership or as a company etc., he would obtain larger rights and the validity of
legislation restricting such rights would have to be tested by different standard, namely,
that laid down in Cl. (4)79.
In view of the above, it becomes evident that the right of citizens to form an association is different
from running the business by that association. Therefore, the right of individuals to form a society has
to be understood in a completely different context. Once a co-operative society is formed and
registered, for the reason that the cooperative society itself is a creature of the statute, the rights of the
 463

society and that of its members stand abridged by the provisions of the Act . Therefore, there cannot
be any objection to statutory interference with the composition or functioning merely on the ground of
contravention of individual right of freedom of association by statutory functionaries. 80
The right guaranteed by Art. 19(1)(c) on a literal reading thereof can be subjected to those restrictions
which satisfy the test of Clause (4) of Art. 19. The rights not included in the literal meaning of Art. 19(1)
(c) but which are sought to be included therein as flowing therefrom, i.e., every right which is
necessary in order that the association brought into existence fulfils every object for which it is formed,
the qualification therefore would not merely be those in Clause (4) of Art. 19, but would be more
numerous and very different. Restrictions which base upon and look into account the several fields in
which association or unions of citizens might legitimately engage themselves, would also become
relevant.
A right to form an association or union does not include within its Ken as a fundamental right a right to
form associations or unions for achieving a particular object or running a particular institution, the
same being a concomitant or concomitant to a concomitant of a fundamental right, but not the
fundamental right itself. The association or union of citizen cannot further claim as a fundamental right
that they must also be able to achieve the purpose for which they have come into existence so that
any interference with such achievement shall be unconstitutional, unless the same could be justified
under Art. 19(4) as being a restriction imposed in the interest of public order or morality. A right to form
an association does not imply the fulfilment of every object of an association as it would be
contradictory to the scheme underlying the text and the frame of the several fundamental rights
guaranteed by Part III and particularly by the scheme of the guarantees conferred by such Clauses (a)
to (g) of Clause (1) of Art. 19.81 See also Maneka Gandhi v. Union of India ,82 wherein it was observed,
"Every activity which facilitates the exercise of a named fundamental right is not necessarily
comprehended in that fundamental right nor can it be regarded as such merely because it may not be
possible otherwise to effectively exercise that fundamental right. What is necessary to be seen is, and
that is the "test" which has to be applied, "whether the right claimed by the petitioner is an integral part
of a named fundamental right or partakes of the same basic nature and character as the named
fundamental right, so that the exercise of such right is in reality and substance nothing but an instance
of the exercise of the named fundamental right". It was, therefore, held that right to go abroad cannot
in all circumstances be regarded as included in freedom of speech and expression. 83
A right guaranteed under Art. 19(1)(c) on the literal reading thereof can be subjected to those
restrictions which satisfy the test of Art.19(4). The rights not included in the literal meaning of Art. 19(1)
(c), but which are sought to be included therein as flowing therefrom i.e., "every right which is
necessary in order that the association brought into existence fulfils every object for which it is formed
the qualification therefore would not merely be those in clause (4) of Art. 19, but would be more
numerous and very different. Restriction which bore upon and took into account the several fields in
which the association of unions of citizens might legitimately engage themselves would become
relevant".84

1V)  It follows that the right to 'form' an association does not include any
guaranteed right to collective bargaining or to strike. 85 Such right must be derived from
the freedom of business or profession or occupation which is guaranteed by sub-cl. (g)
and which can be restricted on the ground specified in Cl. (6), i.e. interest of the general
public.86
The Supreme Court in T.K. Rangarajan v. State of Tamil Nadu ,87 considered the entire law and
reiterated that Government servants who have formed an association have no fundamental right to
strike. It was held that there is no legal or statutory right to strike. It was further declared that
Government employees cannot claim that they can take the society at ransom by going on strike.
Even if there is injustice to some extent, as presumed by the employees, in a democratic welfare
state, they have to resort to the machinery provided under different statutory provisions for redressal
of their grievances. It was held that strike affects the society as a whole, and the entire administration
comes to a grinding halt. In the case of teachers, the entire education system suffers and many
students are prevented from appearing in their examination which ultimately affects their whole career.
 464

In the case of strike by doctors, innocent patients suffer, in the case of strike by transport employees,
entire movement of the society comes to a standstill, business is adversely affected and number of
persons find it difficult to attend to their work to move from one place to another or one city to another.
On occasions public properties are destroyed or damaged and finally this creates bitterness among
the public against those who are in strike. In a society where there is large scale unemployment and
large number of qualified persons are eagerly waiting for employment in Government departments or
in public sector undertakings and when 90% of revenue is spent on salary to Government employees,
strike cannot be justified on equitable ground also.
In James Martin v. State of Kerala ,88 it was held that irrespective of whether hartal or strike or bandh
has any legal sanctity, there can be no justification for destruction of public property in the name of
such hartal or strike and the same must be controlled by an iron hand. It was held that such acts are
not part of freedom of speech and expression or freedom of association.
In Communist Party of India (M) v. Bharat Kumar ,89 it was held, "There cannot be any doubt that the
fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of
an individual or only a section of the people. It is on the basis of this distinction that the High Court has
rightly concluded that there cannot be any right to call or enforce a 'bandh' which interferes with the
exercise of fundamental freedoms of other citizen in addition to causing national loss in many ways".
The decision of the Full Bench of the Kerala High Court in Bharat Kumar K. Palicha v. State of Kerala ,
90
was affirmed. Kerala High Court held, "No political party or organisation can claim that it is entitled to
paralyse the industry and commerce in the entire State or Nation and is entitled to prevent the citizens
not in sym-pathy with its view point from exercising their fundamental rights or from performing their
duties for their own benefit or for the benefit of the State or the Nation. Such a claim would be
unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political
party or those comprising it".
No party or organisation has a right to compel others toe its line unless these others want toe so
voluntarily. Indulging in destruction of public and private property and causing loss to production and
holding the society at ransom in the name of staging a hartel cannot be considered to be constitutional
act based on rights confirmed by the constitution. 91 In S. Vasudevan v. S.D. Mital ,92 the court while
upholding the provisions of s.3(1) and 7 of the Essential Services Maintenance Ordinance, 1960
observed that the right not to work did not include the right to receive pay without working.
See in this connection the Articles of eminent columnist and lawyer A.G. NOORANI.93
In Ex. Captain Harish Uppal v. Union of India ,94 wherein it was held that lawyers have no right to strike
nor the Association can give a call for boycott of court. Even a token strike is prohibited. 95 In Radhey
Shyam Sharma v. Post Master General, Cenral Circle, Nagpur ,96 it was held that there is no
fundamental right to strike and s s. 3, 4 and 5 of the Essential Services Maintenance Ordinance 1 of
1960 are not violative of Art. 19(1)(a).97
In All India Bank Employees' Association v. National Industrial Tribunal ,98 it was held that even a
liberal interpretation does not lead to the conclusion that the trade unions have a guaranteed right to
effect collective bargaining or to strike. The right to strike or to declare a lock-out will be controlled or
be tested by appropriate industrial legislation and the validity thereof would have to be tested not with
reference to Art. 19(4) but by reference to totally different consideration. 99

1VI)  No question of infringement of the fundamental right of association arises

where the services of a Government servant are terminated on the ground that he is a
member of the Communist Party, because the order of termination does not prevent him
from remaining a member of the Communist Party, but terminates his service which is
held at the pleasure of the Government and to which service there is no fundamental
right100. The Court said: "The orders do not prevent them from continuing to be
communists or trade unionists. Their right in that behalf remain after the impugned
orders precisely where they were before. The real complaint of the appellants is that
their services have been terminated, but that involves apart from Art.311, no
infringement of any of their fundamental rights. The appellants have no doubt a
 465

fundamental right to be continued in employment by the State and when their services
are terminated by the State, they cannot complain of the infringement of any of their
constitutional right, when no violation of Art.311 arises.
The harsh view taken in Balakotiah's case, to a certain extent was reduced in M. H. Devendrappa v.
Karnataka State Small Industries Development Corpn .101 It was held therein that a legitimate action
discreetly and properly taken by a Government servant with a sense of responsibility and at the proper
level to remedy any malfunction in the organisation may not be barred. A person who legitimately
seeks to exercise his rights, but the consequences will be so serious and so damaging that it may be
impracticable to exercise the freedom. A person who legitimately seeks to exercise his right under
Art.19 cannot be told that you are free to exercise the right, but the consequences will be serious and
so damaging, that you will not be able to exercise your freedom. This means that the decision in
Balakotiah (supra) approach saying that Government servant is free to exercise his freedom under
Art.19 but at the cost of his service clearly amounts to deprivation of freedom of speech. In such
cases, the reasonableness of the Service Rules which curtail certain kinds of activities amongst
Government servants in the interest of efficiency and discipline in order that they may discharge their
public duties as Government servants in a proper manner without undermining the prestige or
efficiency of the administration, has to be considered. A proper balancing of interests of an individual
as a citizen and the right of the State to frame a code of conduct for its employees in the interests of
proper functioning of the State is required. In that case, the petitioner made a direct attack against the
head of the organisation. On facts, it was held that making public statements against the head of the
organisation on a political issue amounted to lowering the prestige of the organisation and the
petitioner exceeded the limits and was liable for disciplinary act ion.
Article 10 on free speech and Art. 11 of ECHR are relevant here. Article 11 recognises the right to form
and join a trade union and imposes on obligation on States to "both permit and make possible" the
freedom for individual trade unionists to protect their rights. 102 Restrictions on these rights are
permissible if they fall within article 10(2) and 11(2). They have been interpreted to allow, for example,
special restriction on the political activities of civil servants and local Government officers. 103 Apart from
certain restrictions on those groups and also on police and members of the armed forces, these are
relatively few legal restrictions on the freedom to form and join associations for political or other
purposes, these, that exist, are concerned most with terrorism or other type of violence.
The right not to be a member of an association
U.K.
There is a fair consensus on the proposition that just an individual has the freedom to associate with
any other person of his choice, so he has the freedom not to associate with someone whom he does
not like to associate or someone who is not willing to associate with him. 104
Under the Public Order Act, 1936, it is an offence to wear in any public place or at any public meeting
a uniform signifying association with any political organisation or with the object of any political object.
The Home Department may give permission for wearing such uniforms on ceremonial or other special
occasions. The consent of Attorney-General is necessary for the continuance of a prosecution after a
person has been charged in court. In O'Moran v. DPP ,105 men wearing dark glasses, black or blue
berets and dark clothes when escorting a coffin of a fellow supporter of the IRA in a funeral procession
in London were held to be wearing a uniform for the purpose.
Section 2 of the Public Order Act, 1936 provides that if members or adherents to any association of
persons are (1) organised or trained or equipped for the purpose of enabling them to be employed in
usurping the functions of the police or the armed forces of the Crown or (2) organised and trained or
organised and equipped either for the purpose of enabling them to be employed for the use or display
of physical force in promoting any political object or in such manner as to arouse reasonable
apprehension that they are organised and either trained or equipped for that purpose, then any person
who takes part in the control or management of the association or in so organising or training its
members or adherents, is guilty of an offence punishable with fine or imprisonment. Court of AG is
necessary before initiating prosecution under this section. A person charged with taking part in the
 466

control or management of such an association may plead that he neither consented to nor connived at
the unlawful organisation, training or equipment. 106
Eire
It follows that a person cannot be forced to join a union which requires its members to profess a
particular opinion.107 For the same reason, an employer cannot dismiss an employee on the ground
that he refuses to join a trade union against his will. 108 The Irish High Court has thus drawn a
fundamental right of 'dissociation' from the freedom of association. 109
1 Robson, Justice & Administrative Law, 3rd Ed., pp. 317-320.

2 T.N. Outdoor Advertising Association v. Union of India, AIR 2003 Mad 340.

3 All India Bank Employees' Assocn. v. N.I. Tribunal, AIR 1962 SC 171 (179) : (1962) 3 SCR 269.

4 All India Bank Employees' Assocn. v. N.I. Tribunal, AIR 1962 SC 171 (179) : (1962) 3 SCR 269.

5 Cf. Mclver, Society, pp. 437, 442.

6 D.A.V. College v. State of Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

7 AIR 1978 SC 597 : (1978) 1 SCC 248.

8 See V.G. Rao v. State of Madras, AIR 1951 Mad 147(FB) ; see also A.V. Chandel v. Delhi University, AIR 1978 Del
308.

9 AIR 1951 Mad 147(FB) (supra).

10 See Prof. Leo Pfeffer, The Supreme Court Speaks, 2nd Edn., 1963 at pp.110-111. See also the article of Dr.R.
Errabi, "Freedom of Association" published in M. Hidayathullah, Constitutional Law of India, The Bar Council of India
Trust, pp.338-339.

11 Proposed Dharwad District Ex Service Mini Co-operative Society v. State of Karnataka, AIR 1993 Kant 117.

12 K. Nithyanandan v. State of Tamil Nadu, (2006) 1 LW 363(FB) .

13 AIR 1978 SC 597 : (1978) 1 SCC 248.

14 All India Bank Employees' Assocn. v. N.I. Tribunal, AIR 1962 SC 171 (179) : (1962) 3 SCR 269.

15 All India Bank Employees' Assocn. v. N.I. Tribunal, AIR 1962 SC 171 (179) : (1962) 3 SCR 269.

16 O.K. Ghosh v. Ex. Joseph, AIR 1962 SC 812 (815-6) : 1963 Supp (1) SCR 789.

17 Ghosh v. Joseph, AIR 1963 SC 812 : 1963 (Supp-1) SCR 789 (supra).

18 Raghubar Dayal Jai Prakash v. UOI, AIR 1962 SC 263 : (1962) 3 SCR 547.

19 Damayanti Naranga v. Union of India, AIR 1971 SC 966 : (1971) 1 SCC 678 (para. 6). See also V.G. Rao v. State of
Madras, AIR 1951 Mad 147(FB) .

20 Damayanti Naranga v. Union of India, AIR 1971 SC 966 : (1971) 1 SCC 678 (para. 6). See also V.G. Rao v. State of
Madras, AIR 1951 Mad 147(FB) .

21 Damayanti Naranga v. Union of India, AIR 1971 SC 966 : (1971) 1 SCC 678 (para. 6). See also V.G. Rao v. State of
Madras, AIR 1951 Mad 147(FB) .

22 Asom Rastrabhasa Prachar Samithi v. State of Assam, (1989) 4 SCC 496 : AIR 1989 SC 2126.

23 W.A. Robson, Justice and Administrative Law, 3rd Edn., pp. 320, 321.

24 Zoroastrian Co-operative Housing Society Ltd. v. District Registrar of Co-operative Societies (Urban), (2005) 5 SCC
632 : AIR 2005 SC 2306. See alsoTahir Raza Khan v. State of Uttaranchal, 2003 AIHC 2077(Uttar) .

25 Damayanti Naranga v. UOI, AIR 1971 SC 966 : (1971) 1 SCC 678.

26 Daman Singh v. State of Punjab, AIR 1985 SC 973 : (1985) 2 SCC 670.
 467

27 A.P. Dairy Development Corpn. Federation v. B. Narayana Reddy, (2011) 9 SCC 286 : AIR 2011 SC 3298; see
alsoDharam Dutt v. UOI, AIR 2004 SC 1295 : (2004) 1 SCC 712 (supra).

28 A.P. Dairy Development Corpn. Federation v. B. Narayana Reddy, (2011) 9 SCC 286 : AIR 2011 SC 3298 (supra).

29 See Satyapal Singh v. UP Government, AIR 1951 Allahabad 674(FB) ; Sitaramacharya v. Dy. Inspector of Schools,
AIR 1958 AP 78.

30 AIR 1956 SC 676.

31 Learned author H.M. Seervai, Constitutional Law of India, 4th Edn., Vol. I, at pp. 806-807 has commented on the
above decision, though the learned author has concluded that the ultimate result is correct.

32 State of U.P. v. C.O.D. Chheoki Employees' Co-operative Society Ltd., (1997) 3 SCC 681 : AIR 1997 SC 1413. See
also Gujarat State Merketing Co-operative Federation Ltd. v. State of Gujarat, 2004 AIHC 3898(Guj) .

33 State of U.P. v. C.O.D. Chheoki Employees' Co-operative Society Ltd., (1997) 3 SCC 681 : AIR 1997 SC 1413.

34 See also Babaji Kondaji Garad v. Nasik Merchants' Co-operative Bank Ltd., (1984) 2 SCC 50 : AIR 1984 SC 192 :
(1984) 1 SCR 767; Toguru Sudhakar Reddy v. Government of A.P., 1993 (Supp-4) SCC 439.

35 Bhandara District Co-op. Bank Ltd. v. State of Maharashtra, AIR 1993 SC 59.

36 Mani Ram v. State of Haryana, AIR 1996 P&H 92.

37 Daman v. State of Punjab, AIR 1985 SC 973 : (1985) 2 SCC 670 (para. 9). See also Babaji Kondaji Garad v. Nasik
Merchants' Co-operative Bank Ltd., Nasik, AIR 1984 SC 192 : (1984) 2 SCC 50; State of U.P. v. C.O.D. Chheoki
Employees' Co-op. Society Ltd., AIR 1997 SC 1413 : (1997) 3 SCC 681; Zoroastrian Co-op. Housing Societies Ltd. v.
Dist. Registrar, Co-op. Societies (Urban), AIR 2005 SC 2306 : (2005) 5 SCC 632.

38 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 (815) : 1963 Supp (1) SCR 789. See Arjun P. Agar-wal (Former
Reader, Faculty of Law, University of Delhi), "Freedom of Association in Public Employment", Journal of Indian Law
Institute, Vol. 14, p. 1.

39 DAV College v. State of Punjab, (1971) 2 SCC 269 : AIR 1971 SC 1737.

40 Dharam Dutt v. UOI, AIR 2004 SC 1295 : (2004) 1 SCC 712.

41 All India Banks Employees' Assn. v. National Industrial Tribunal, AIR 1962 SC 171 : (1962) 3 SCR 269; see also
Radhey Shyam v. PMG., Nagpur, AIR 1965 SC 311 : (1964) 7 SCR 403. See also L.N. Mishra Institute of E.D & Social
Change v. State of Bihar, AIR 1988 SC 1136 : (1988) 2 SCC 433; Raghubar Dayal v. UOI, AIR 1962 SC 263 : (1962) 3
SCR 547.

42 Sitharamacharya v. Senior Dy. Inspector, AIR 1958 AP 78.

43 Noise Pollutionv. In re., AIR 2005 SC 3136 : (2005) 5 SCC 733. See alsoIndian Metal and Metallurgical Corpn. v.
Industrial Tribunal, Madras, AIR 1953 Madras 98 : (1952) 1 MLJ 481; See also H.M. Seervai, Constitutional Law of
India, 4th Edn., Vol.ume I, pp. 805 - 808.

44 Journal of Indian Law Institute, Vol. 12, 1970.

45 Suryapal Singh v. U.P. Government, AIR 1951 All. 674.

46 Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 : (1986) 3 SCC 615.

47 AIR 1956 SC 676 : (1956) SCR 393.

48 Express Newspapers (P.) Ltd. v. UOI, AIR 1958 SC 578 : (1959) SCR 12.

49 See H.M. Seervai, Constitutional Law of India, 4th Edn., Vol.I, p.807.

50 AIR 1958 AP 78.

51 AIR 1953 Cal 695.

52 Cf. Ramakrishnaiah v. Dt. Board, AIR 1952 Mad 253.

53 O.K. Ghosh v. E.X. Joseph, AIR 1962 SC 812 (815-6) : 1963 Supp (1) SCR 789.
 468

54 K.R.W. Union v. Registrar, AIR 1967 Cal 507 (508).

55 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 (815) : 1963 Supp (1) SCR 789. See Arjun P. Agar-wal (Former
Reader Faculty of Law, University of Delhi), "Freedom of Association in Public Employment", Journal of Indian Law
Institute, Vol. 14, p. 1.

56 AIR 1987 SC 379 : (1987) 1 SCC 115.

57 Intelligence Bureau Employees' Assn. v. UOI, (1997) 11 SCC 348; see also Ous Kutilingal Achuthan Nair v. UOI,
AIR 1976 SC 1179 : (1976) 2 SCC 780.

58 Railway Board v. Niranjan Singh, AIR 1969 SC 966 : (1969) 3 SCC 502.

59 Radhey Shyam v. PMG., Nagpur, AIR 1965 SC 311 : (1964) 7 SCR 403; Kameshwar Singh v. State of Bihar, AIR
1962 SC 1166 : 1962 (Supp-3) SCR 369; T.K. Rangarajan v. Government of Tamil Nadu, AIR 2003 SC 3032 : (2003) 6
SCC 581. Also see Arjun P. Agarwal (Former Reader Faculty of Law, University of Delhi), "Freedom of Association in
Public Employment", Journal of Indian Law Institute, Vol. 14, p. 1.

60 Kulkarni v. State of Bombay, AIR 1954 SC 73 : 1954 SCR 384, affirming AIR 1951 Bom 106.

61 Suryanarayana v. Co-op. Sugars, AIR 1976 AP 340 (349-51)(FB) . (Restriction imposed by the Cooperative
Societies Act .].

62 Suryanarayana v. Co-op. Sugars, AIR 1976 AP 340 (349-51)(FB) . (Restriction imposed by the Cooperative
Societies Act .].

63 Committee of Management S.M. College Moradhabad v. State UP., AIR 2005 All 126. : (2005) 1 ESC 598.

64 (1989) 393 US 503.

65 See also Meyer v. Nebraska, (1923) 262 US 390; Bartctes v. Iowa, (1923) 262 US 404.

66 Zorastrian Co-operative Housing Society Ltd. v. District Registrar of Co-operative Societies (Urban), (2005) 5 SCC
632 : AIR 2005 SC 2306.

67 Also see Ashish Chugh, "Fundamental Rights - Vertical or Horizontal", 2005, 7 SCC Journal 9.

68 SeeA.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286 : AIR 2011 SC 3298; see
alsoSant Lal Gupta v. Modern Co-op. Group Housing Society, (2010) 13 SCC 336 : (2010) 4 SCC (Civil) 904.

69 Raghubar v. Union of India, AIR 1962 SC 263 (270) : (1962) 3 SCR 497.

70 Raghubar v. Union of India, AIR 1962 SC 263 (270) : (1962) 3 SCR 497.

71 Delhi Police Non-Gazetted Karmchari Sangh v. Union of India, AIR 1987 SC 379 : (1987) 1 SCC 115.

72 All India Bank Employees' Assocn, v. N.I.T., AIR 1962 SC 171 : (1962) 3 SCR 269; D.A.V. College v. State of
Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

73 Damayanti Naranga v. Union of India, (1971) 1 SCC 678 : (1971) 3 SCR 840.

74 AIR 1965 SC 40 : (1964) 6 SCR 885.

75 A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286 : AIR 2011 SC 3298; see also
S. Azeez Basha v. UOI, AIR 1968 SC 662 : (1968) 1 SCR 833.

76 Balakotiah v. Union of India, AIR 1958 SC 232 : 1958 SCR 1052.

77 Balakotiah v. Union of India, AIR 1958 SC 232 : 1958 SCR 1052.

78 All India Bank Employees' Assocn, v. N.I.T., AIR 1962 SC 171 : (1962) 3 SCR 269; D.A.V. College v. State of
Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

79 All India Bank Employees' Assocn, v. N.I.T., AIR 1962 SC 171 : (1962) 3 SCR 269; D.A.V. College v. State of
Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

80 SeeA.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286 : AIR 2011 SC 3298.
 469

81 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC 712.

82 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.

83 See also L.N. Mishra Institute of E.D. and Social Change v. State of Bihar, AIR 1988 SC 1136 : (1988) 2 SCC 433.

84 SeeDharam Dutt v. UOI, AIR 2004 SC 1295 : (2004) 1 SCC 712 followed in A.P. Dairy Development Corpn.
Federation v. B. Narasimha Reddy , (supra).

85 All India Bank Employees' Assocn. v. N.I.T., AIR 1962 SC 171 : (1962) 3 SCR 269; D.A.V. College v. State of
Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

86 All India Bank Employees' Assocn. v. N.I.T., AIR 1962 SC 171 : (1962) 3 SCR 269; D.A.V. College v. State of
Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

87 T.K. Rangarajan v. State of Tamil Nadu, (2003) 6 SCC 581 : AIR 2003 SC 3032 : (2003) 3 LLJ 275.

88 James Martin v. State of Kerala, (2004) 2 SCC 203.

89 Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201 : AIR 1998 SC 184.

90 Bharat Kumar K. Palicha v. State of Kerala, AIR 1997 Kerala 291.

91 Kerala Vyapari Vyavasayi Ekopana Samithi v. State of Kerala, AIR 2000 Ker 389.

92 (1961) 63 Bom LR 774.

93 "The Right to Strike", Frontline Magazine, dt. 10-10-2003 and republished in the book Constitutional Question &
Citizen's Right, 2005 Edn., Article No. 9, p. lxiv.

94 Ex. Captain Harish Uppal v. Union of India, (2003) 2 SCC 45 : AIR 2003 SC 739.

95 See alsoMahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37; U.P. Sales Tax Service Association v.
Taxation Bar Association, Agra, (1995) 5 SCC 716; Supreme Court Bar Association v. Union of India, (1998) 4 SCC
409; B.L. Wadhera (Dr.) v. State (NCT of Delhi), AIR 2000 Delhi 266.

96 Radhey Shyam Sharma v. Post Master General, Central Circle, Nagpur, AIR 1965 SC 311 : (1964) 7 SCR 403.

97 See also Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 : 1962 (Supp-3) SCR 369.

98 All India Bank Employees' Association v. National Industrial Tribunal, AIR (1962) SC 171 : (1961) 2 LLJ 385 (supra).
See also Radhey Shyam v. PMG, Nagpur, AIR 1965 SC 311 : (1964) 7 SCC 403.

99 See alsoDharam Dutt v. Union of India, (2004) 1 SCC 712.

100 Balakotiah v. Union of India, AIR 1958 SC 232 : 1958 SCR 1052.

101 M. H. Devendrappa v. Karnataka State Small Industries Development Corpn., AIR 1998 SC 1064 : (1998) 3 SCC
732 : (1998) 1 LLJ 1202.

102 National Union of Belgian Police v. Belgium, (1975) 1 EHRR 578.

103 Council for Civil Services Union v. UK, (1988) 10 EHRR 269; Ahmed v. UK, (2000) 29 EHRR 1.

104 Cheall v. Apex, (1983) 1 All ER 1130 (1136)(HL) . See also Roberts v. United States, 468 US 609 (1984), wherein it
was held that freedom of association plainly supposes a freedom not to associate.

105 (1975) QB 864).

106 See R. v. Jordan and Tynball, (1963) Crim.LR 124. See also Hood Phillips & Jackson, Constitutional &
Administrative Law, 8th Edn. at pp. 641 and 642.

107 Educational Co. v. Fitzpatrick, (1961) IR 345; Meskell v. C.I.E., (1973) IR 21.

108 Educational Co. v. Fitzpatrick, (1961) IR 345; Meskell v. C.I.E., (1973) IR 21.

109 Educational Co. v. Fitzpatrick, (1961) IR 345; Meskell v. C.I.E., (1973) IR 21.
 470

It also follows that any voluntary association or union has the right to refuse the application of any
person to become its member.1
India
The same principle appears to have been followed in India. 2 Thus,

17.  A Rule which makes it obligatory for every employee to become a member
of a 'recognised' or Government-sponsored association is unconstitutional. 3 In that case,
court invalidated a rule which provided that no Government servant could join or
continue to be a member of any services association which the Government did not
recognise or in respect of which recognition has been refused or withdrawn by it. It was
held that the rule imposed a restriction on the undoubted right of a Government servant
under Art.19(1)(c). The rule in question was neither reasonable nor in the interest of
public order under Art.19(4). The restriction was such as to make the right guaranteed
under Art.19(1)(c) illusory since he could refuse or withdraw recognition of an
association on consideration which might not have any direct or reasonable connection
with discipline or efficiency of Government servants or public order.
Rule 4B of the Central Civil Services (Conduct) Rules, 1955 provided--
"No Government servant shall join or continue to be a member of any Service Association of
Government Servants--

65a)  which has not, within a period of six months from its formation, obtained the
recognition of the Government under the rules prescribed in that behalf, or
68b)  recognition in respect of which has been refused or withdrawn by the
Government under the said rules".
The Supreme Court annulled this Rule on the ground, inter alia, that:
"It virtually compels a Government servant to withdraw his membership of the service Association of
Government servants as soon as recognition accorded to the said association is withdrawn or if, after
the association is formed, no recognition is accorded to it within six months. In other words, the right to
form an association is conditioned by the existence of the recognition of the said association by the
Government".4

20I.  Conversely, it has been held that the freedom of association includes the
right that the composition of a society shall not be so altered by law as to introduce
members other than those who voluntarily joined to form the society, without the consent
of members of the original association.5 In Daman Singh v. State of Punjab ,6an
unregistered society was by statute converted into a registered society which bore no
resemblance whatever to the original society. New members could be admitted in large
numbers so as to reduce the original members to an insignificant minority. The
composition of society was transformed by the Act and voluntary nature of association of
members who formed the original society was totally destroyed. The Act was therefore
struck down by court as contravening the fundamental right guarantee under Art.19(1)
(c).
Members of an association have the right to be associated only with those whom they consider
eligible to be admitted and have right to deny admission to those with whom they do not want to
associate. The right to form an association cannot be infringed by forced inclusion of unwarranted
persons in a group. Right to associate is for the purpose of enjoying in expressive act ivities. The
constitutional right to freely associate with others encompasses associational ties designed to further
the social, legal and economic benefit of the members of the association. By statutory intervention, the
State is not permitted to change the fundamental character of the association or alter the composition
of the society itself. The significant encroachment upon associational freedom cannot be justified on
the basis of any interest of the Government.7
 471

But the principle may not apply where a society is formed which is governed by a statute. When co-
operative societies are formed which are governed by statutes, they are created by statute, they are
controlled by statute and there can be no objection to statutory interference with their composition on
the ground of contravention of the individual right to freedom of association. 8
Conditions upon recognition and withdrawal of recognition
A union may be a corporate body or an incorporated body. The registration differentiates a union from
other voluntary associations, in that, a registered union may be entitled to call a legal entity, which at
the same time remaining an unincorporated society of individuals. As an association, its membership
is constantly changing, but a registered union has a permanent identity and represents its members at
any moment of time.9
Since there is no requirement under Art. 17(1) of the Pakistan Constitution that an association or a
union is to be registered, strictly speaking, there can be a union without registration; but it cannot
effectively function unless it is registered and a legal framework is provided by which it can operate as
a collective bargaining agent for its members. The operation of the union is sine qua non for
exercising the fundamental right enshrined under Art. 17(1) of the Constitution. 10
A trade union is supposed to represent the interest of the workers. The Union is acting in a manner to
promote itself and not welfare of such workers, its act ions are impermissible. Such an action amounts
to unfair labour practise by trade unions.11
Though there is no fundamental right, in relation to an association, to obtain Government recognition,
the question arises whether the fundamental right of association may be rendered nugatory by
imposing recognition as a condition for dealing with the Government or by imposing unreasonable
conditions for the grant or continuance of Government recognition.
Absolute and unguided discretion given to an authority whether to approve or not to approve a union
was held to be violative under Art. 19(1)(c). In U.P. Sharmik Ma-ha Sangh v. State of U.P .,12 (under the
Industrial Disputes Act - as amended in U.P.) an application could be Labour Commissioner only two
years after the union was formed who was given absolute discretion either to recognise or not to
recognise the union. It was held that the provision is bad.

18.  In Raghubar's case13 it was held that the right to association guaranteed by
Art. 19(1)(c) could not be extended so as to assert that an association had a
fundamental right to be immuned from any conditions of limitations imposed on
Government recognition as might prevent the association from an 'effective' functioning
to achieve its lawful objects. This proposition, however, has to be read with the facts of
that case. The Court, in Raghubar's case14, followed its earlier decision in All India Bank
Employees' Association v. National Industrial Tribunal 15, to the effect that though the
right to form an association or a collective body had been guaranteed by the Constitution
by sub-clause (c) of Art. 19, by forming such collective body, its members could not
acquire any higher footing as regards other fundamental rights which, as individuals,
they could not claim. Thus, when the association related to persons engaged in a
business, it could not be urged that the only restrictions which the State could impose
upon such association were those authorised by clause (4) which related to sub-clause
(c) of Clause (1) and that such association was immune from restrictions which the State
could legitimately impose upon every individual engaged in a business or profession
under Clause (6) which related to sub-clause (g) of Clause (1) of Art. 19. Following this
earlier decision,16 the Court held in Raghubar's case17 that Gur being an essential
commodity, a restriction imposed by the Government that forward trading in this
commodity could be lawfully carried on only by recognised associations and that such
recognition could be granted or continued subject to conditions such as price control,
even though the prices fixed might be unprofitable to the trading association, must be
held to be a reasonable restriction under Clauses (5) and (6) of Art. 19.
21I.  That, apart from such special considerations, recognition of the Government
may attain constitutional importance, where without such recognition the fundamental
 472

right to form an association under Art. 19(1)(c) would be 'illusory', is demonstrated by the
later decision in O.K. Ghosh v. Joseph .18 There it was pointed out that conditions as to
the recognition or its withdrawal, in such circumstances, and be validly imposed only if
they are proximately or rationally relatable to a ground specified in Cl. (4) of Art. 19,
under which only restrictions upon the freedom of association could be upheld. In O.K.
Ghosh's case,19 the exercise of the freedom of association would have been illusory to
the Government servants without the recognition of Government, because the impugned
rule prohibited a Government servant to be or to continue to be the member of an
association which was not recognised by the Government or from which the recognition
has been withheld.
Thus:--

66a)  To condition the freedom of individuals to form any association they like
upon the grant by Government of recognition to such association or in other words, to
deny the individuals the freedom to become members of any association not recognised
by the Government, constitutes an infringement of the freedom of association
guaranteed by Art. 19(1)(c).20
The freedom to form an association or union necessarily implies a right to be a member
of an association or union. Hence a rule which makes it obligatory for every employee to
become a member of a recognized or Government sponsored association or union is
unconstitutional.21 Rules prohibiting the existence of any teacher's union not conforming
to certain rules compelling teachers to obtain the permission of the Board before forming
union and prohibiting teachers in recognised elementary schools from becoming
members of teacher's union not constituted in accordance with the orders of
Government are void.22 Dismissal of an employee for violating a rule requiring prior
permission for joining a union was set aside by the Allahabad High Court. 23
While the right to form an association is a fundamental right, recognition of such an
association is not a fundamental right and thus Parliament can by law regulate the
working of such association by imposing conditions and restrictions on such functions.
There is no objection to statutory interference with the composition or functioning of an
association which are created, controlled by statute. Legislative provision can be validly
made for eliminating qualification for membership based on sex, religion, persuasion or
mode of life. However so long as there is no legislative intervention, it is not open to
court or authorities purportedly act ing under a statute to coin a theory that a particular
approved bye-law of a registered co-operative society is not desirable or would be
opposed to public policy as indicated by the Constitution. Hence a challenge to the
constitutional validity of a byelaw of Zoroastrian Co-operative Society restricting its
membership to Parsi community was repelled.24
Granting of recognition to an association is exclusively in the discretion of the
Government, so also cancellation and withdrawal of its recognition. A right to form an
association does not involve a right to recognition.25Rule 7 of the Central Civil Services
(Recognition of Services Association) Rules, 1959 provides that if in the opinion of the
Government a service association recognised under these rules has failed to comply
with certain conditions set forth in the rules, the Government may withdraw the
recognition accorded to such association. One such condition is "communication
addressed by the service association or by any office bearer on its behalf to the
Government or a Government authority shall not contain any disrespectful or improper
language". The decision as to whether the language used in such a communication is
disrespectful or improper or not depends solely on the opinion of individual officer
concerned and is bound to vary from officer to officer. In the circumstances, there is a
possibility of the power being arbitrarily exercised and there is no right of appeal against
such decision. It was held that fundamental right of Government servants to form
 473

association or union has been subjected to arbitrary discretion of the Government.

These restrictions can hardly be in the interests of public peace, safety and tranquillity. 26
69b)  Even though in the case of Government servants, the State has an interest
in the associations formed by the employees, in the interests of efficiency or discipline,
the control of the Government over such associations must, in order to be valid, be
relatable to 'public order' or 'morality' on which grounds only the freedom of association
may be restricted, under Art. 19(4). Where, therefore, the Government compels an
employee to become a member only of a 'recognised association' and then provides that
recognition may be refused or withdrawn on grounds unrelated to public order or
morality, such restrictions render illusory the fundamental right guaranteed by Art. 19(1)
(c).27
In cases where there is no prohibition in Government servant joining an association, but
conditions are prescribed for an association desiring to obtain recognition from
Government or to speak on behalf of members of the services, such conditions are valid.
Court held that such a provision does not infringe in the forming of an association or to a
member thereof.28
Under the Railway Establishment Code (1951) Appendix XIII Part B Rule (1) provides
that the "Government is prepared to accord official recognition to association of its
industrial employees. The grant and continuance of recognition rests in the discretion of
Government, but recognition when granted will not be withdrawn without "due cause"
and without giving an opportunity to the association to show cause against such
withdrawal".
What is "due cause" is to be determined on the facts of the case. Similarly what
opportunity would be proper or adequate in a given case would depend upon facts and
circumstances of each case. The Courts would interfere if the authority exercises its
power arbitrarily or capriciously or if it comes to a decision "that no reasonable body
would have come to "or" if it is simply a colourable compliance with the rule". 29
Section 20(2) of the Maharashtra Recognition of Trade Union Act and Prevention of
Unfair Labour Practice Act, 1971, which confers an exclusive right to represent workmen
of any undertaking as a Union which acquires the status of a recognised union under the
Act, and simultaneously denies the right to a workman to appear or act or to be allowed
to represent in any proceeding under Industrial Disputes Act , 1947 does not violate the
fundamental right to form association guaranteed by Art.19(1)(c) of the Constitution. 30
Under Bombay Industrial Relation Act, 1947, it is the representatives of the Union who
have the power to appear, take decisions or enter into settlement on behalf of workmen
of industry concerned. Decision taken by such union would bind not only the members of
association, but also those workers who are not members of the Union. 31 In B. Srinivasa
Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Assn .,32 court
held that the provision that a trade union which has not been registered or where
registration has been cancelled has no right whatsoever to espouse the cause of
workmen under Trade Union Act (1926) is valid.
Once an employee becomes a member of a trade union, he does not cease to be a
member merely because he has ceased to be an employee. It was held that there is no
automatic cessation of membership of union on cessation of employment. The
requirement that "persons act ually engaged or employed in an industry" is only a
condition for admission. Therefore, an employee who has ceased to be an employee,
can retain his membership in the trade union unless the constitution of the trade union
provides for automatic cessation.33 With regard to restriction under the rules of
recognition on associating outsiders as members or officers, Allahabad High Court held
that a rule restraining Government employees from joining a union which has associated
outsiders would be unreasonable and illegal. It was held that mere formation of a union
with outsiders as some of its office bearers cannot be said to be an activity to excite
 474

disaffection against the Government or to embarrass it or to produce feelings of enmity

or disturbance of public peace. Even if these outsiders belong to a particular political
party, it does not necessarily follow that the union will indulge in some such subversive
act ivities or that the union or its members will assist any political party. 34 But a different
view is taken by the Kerala High Court in Divakaran v. State of Travancore-Cochin .35
47c)  That the same result would follow where without Government recognition,
the association cannot effectively function for the object for which it has been formed,
would be apparent from the observations made by the Supreme Court, in another
context in the Reference on the Kerala Education Bill.36 In that case, DAS C.J., speaking
for the majority, pointed out that the effect of the relevant provisions of the Education Bill
was that "scholars of unrecognised schools are not permitted to avail themselves of the
opportunities for higher education in the University and are not eligible for entering the
public services." The result of this was that though there was fundamental right to obtain
recognition from the Government to educational institutions set up by the minority
community, the right guaranteed by Art. 30(1) of the Constitution to the minority
community to establish institutions of their own choice was rendered illusory by the
impugned provisions of the Bill in so far as education in the institutions established by
the minority community would be worthless for all practical purposes without
Government recognition since scholars of the unrecognised institutions would be eligible
neither for higher education nor for employment in the public services. In the words of
DAS C.J.--

"Without recognition, therefore, the educational institutions established or to be established by

the minority communities cannot fulfil the real objects of their choice and the rights under Art.
30(1) cannot be effectively exercised. The right to establish educational institutions of their
choice must, therefore, mean the right to establish real institutions which will effectively serve
the needs of their community and the scholars who resort to their educational institutions".37

In Ahmedabad St. Xavier's College Society v. State of Gujarat ,38 it was held uniformly by all nine
judges that there is no fundamental right to affiliation. The Court also recognised that recognition or
affiliation is essential for a meaningful exercise of the right to establish and administer educational
institution.39 Public examination in an institution not having recognition or affiliation is a serious
infraction of law.40 An affiliation enables and permits an institution to send its students to participate in
the public examination conducted by examining body and secure the qualification in the nature of
degrees, diplomas, certificates, etc. On the other hand, "recognition" is the licence to the institution to
offer a course or training.41
Where, therefore, the Government Rules provide that unless a trade union is recognised by the
Government, it shall have no collective footing in making representations to the Government and that
its representations will be subjected to the rules and regulations, governing the memorials or petitions
of individual employees, and recognitions on the other hand, will confer other advantages without
which it will be difficult, if not impossible, for an unrecognised trade union to maintain the association
and to serve the very purpose for which a trade union is formed, namely, to represent the grievances
of the employees collectively to the employer, and to bring upon the collective weight of the trade
union in the negotiations on behalf of the employees in the matter of such grievances, 42 the conditions
for the grant or continuance of recognition must answer the test of substantive and procedural
reasonableness43 and must also be relatable to the grounds of public order and morality as are
mentioned in Art. 19(4).44 It is well worth reproducing the words of the American Supreme Court45 --
"Freedoms such as these (e.g., freedom of association) are protected not only against heavy-handed
frontal attack, but also from being stifled by more subtle Governmental interference.46

13II.  Our Supreme Court has held47 that where there is a recognised union, any
settlement arrived at between the employer and the recognised union will be binding on
the employees, though they may not be individually parties to the settlement,-in the
absence of mala fides, fraud, corruption or like inducements48.
 475

Whereas a settlement arrived at by agreement between the employer and the workmen otherwise
than in course of a conciliation proceeding is binding only on the parties to the agreement, a
settlement arrived at in the course of conciliation proceedings under the Act is binding not only on the
parties to the industrial dispute but also on other persons specified in Clauses (b), (c) and (d) of
Sections 18 of the Industrial Disputes Act .49 Where a settlement is reached in a proceeding under
Industrial Disputes Act in which a representative union has appeared, the same is to be binding on all
workmen of the undertaking. This would mean, that neither the representative union nor the employer
can discriminate between members of the representative union or other workmen who are not
members. Both the benefits and advantages and disadvantages or liabilities arising out of a settlement
in any proceeding under the I.D. Act to which a representative union is a party shall be equally
applicable to each workman in the undertaking and there shall be no discrimination between members
and non-members in that regard. It was further held that conferment of exclusive right to represent the
workman on recognised union is not violative of Art. 19(1)(a) and (c). 50
Where the majority union did not have a right of representation with respect to individual grievances,
which was also denied to minority union, the same cannot be termed as discriminatory. On the
contrary, conferring such a right on the minority union would amount to reverse discrimination. 51

8V.  On the other hand, there is no violation of Art. 19(1)(a) or (c) in a proceeding
under the Industrial Disputes Act , has the right to met and discuss the grievances of
individual workmen, with the employer or to participate in a domestic inquiry. 52
Article 19(1)(c) cannot be invoked where recognition from a Police Union has been withdrawn in order
to ensure compliance with Art. 33.53 In that case, court reiterated that right under Art. 19(1)(c) is not
absolute. Article 19(4) specifically empowers the State to make any law to fetter, abridge or abrogate
any of the rights conferred by Art. 19(1)(c) in the interest of public order and other consideration. As
members of Police Force are at a less disadvantageous position, curtailment of their rights under Art.
19(1)(c) comes squarely within Art. 33 of the Constitution in the interest of discipline and public order.
It is settled law that the right guaranteed by Art. 19(1)(c) to form association does not involve a
guaranteed right to recognition.54
The Parliament has enacted Police Forces (Restriction of Rights) Act, 1966 (Act 33 of 1966) whereby
the Government is empowered to deny the right to form an association or union to the police force. It
imposes a restriction on the right to form an association as that right is conditioned upon the existence
of the recognition of the association by the Government. It was held that the rules are protected under
Arts. 19(4) and 33 and police force stands on a different footing. A rule which restricts or prohibits the
freedom of association among police force to maintain discipline was held valid. 55 Civilian employees
of training establishments and military hospitals taken out of Industrial Disputes Act are governed by
Army Act . The Government is therefore justified not to grant recognition of union consisting of such
employees.56
Under Art. 19(4), the State can impose reasonable restriction inter alia, in the interest of sovereignty
and integrity of the country. The Prevention of Terrorism Act, 2002 (POTA) 57 is enacted to protect
sovereignty and integrity of India from the menace of terrorism. Imposing restriction under Art.19(4) of
the Constitution also includes declaring an organisation as a terrorist organisation as provided under
POTA. Section 18 of the Act was therefore held as constitutionally valid. As regards the
reasonableness of the restriction provided under s.18, it has to be noted that the factum of declaration
of an organisation as a terrorist organisation depends upon the belief of Central Government. The
reasonableness of Central Government's act ion has to be justified based on material facts upon
which it formed the opinion. Moreover, the Central Government is bound by the order of Review
Committee. Considering the nature of legislation and magnitude of presence of terrorism, it cannot be
said that s.18 of POTA is unconstitutional. In the peculiar background of terrorism, it maybe necessary
for the Central Government to declare an organization as a terrorist organisation. At the same time,
under s.19 of POTA, the aggrieved person can approach the Central Government itself for reviewing
its decision, and if they are not satisfied with the decision of Central Government, they can
subsequently approach the Review Committee and also move for other constitutional remedies. The
post-decisional remedy provided under POTA satisfies the audi alteram partem requirement in the
 476

matter of declaring an organisation as a terrorist organisation. Therefore, the absence of pre-

decisional hearing cannot be treated as a ground for declaring s.18 of POTA as invalid. 58
In UK, one of the key elements of anti-terrorism regime is the banning of terrorist organisation. It is an
offence to belong to or to support a proscribed organisation. The proscribed organisations are listed in
Schedule II of the Terrorism Act, 2000 or to have the same name as one listed or are proscribed by
statutory instrument. The organisation remains proscribed irrespective of any change in name. The
grounds for proscribing an organisation are that the Home Secretary believes the organisation is
"concerned in terrorism or to promote, encourage or glorifies terrorism". The Home Secretary does not
apparently have to show reasonable grounds for his belief.
In USA, the decision in Elfbrandi v. Russell ,59 the Court said: "Those who join an organisation, but do
not share its unlawful purpose and who do not participate in its unlawful act ivities surely pose no
threat, either as citizen or as public employee. A law which applies to membership without 'specific
intent' to further the illegal aims of the organisation infringes unnecessarily on the protected freedoms.
It rests on the doctrine of "guilty by association" which has no place here. In Scales v. US ,60 the Court
distinguished between "knowing membership and passive, merely nominal membership in a
subversive organisation and said: "The clause does not make criminal all association with an
organisation which has been shown to engage in illegal activity. A person may be foolish, deluded, or
perhaps mere optimistic, but he is not by the statute made a criminal. There must be clear proof that
the defendant specifically intends to accomplish the aim of the organization by resort to violence". 61
Our Supreme Court has held that mere membership of a banned organisation will not make one
criminal unless he resorts or incites people to violence or creates public disorder by violence or
incitement to violence.62
Right of collective bargaining and trade unionism
U.S.A.
(A) U.S.A.--The right of employees to organise themselves for the purpose of dealing with an
employer was recognised as early as 1922, in view of the helplessness of a single employee to deal
on a footing of equality with his employer.63 In 1936, the National Labour Relations Act was passed,
conferring upon employees the right 'to form labour organisations' to bargain collectively through
representatives .......' and in 1937, the right of the employees to organise and select their
representatives and to bargain with the employer through such representatives was upheld by the
Supreme Court as a fundamental right.64 In that case, the court said that employees have as clear a
right to organise and select their representative for lawful purpose as the representative has to
organize its business and select its own officers and agents. Discrimination and coercion to prevent
the free exercise of the right of the employees to self-organisation and representation is a proper
subject for condemnation by competent legislative authority. Long ago we have stated the reason for
labour organisation. It was said that, they are organized out of the necessities of the situation; that a
single employee was helpless in dealing with an employer; he was dependent ordinarily on his daily
wage for the maintenance of himself and his family, that, if the employer refused to pay him the wages
that he thought fair, he was nevertheless unable to leave the employer and resist arbitrary and unfair
treatment, for which the union was essential to give the labourers the opportunity to deal with the
employer on an equal ground.65Fully recognising the legality of collective action on the part of
employees in order to safeguard their proper interests, the court said that, the Congress was not
required to ignore this right, but could safeguard it. Congress could seek to make appropriate
collective act ion of employees an instrument of peace rather than of strife. The court said that such
collective action would be a mockery if representations were made futile by interferences. Hence, the
prohibition by Congress of interference with the selection of representation for the purpose of
negotiation and conference between employers and employees "instead of being an invasion of the
constitutional right of either was based on the recognition of rights of both". The Court further said:
"Experience has abundantly demonstrated that recognition of the right of employees to self-
organisation and to have representatives of their own choosing for the purpose of collective bargaining
is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the
most prolific causes of strife". It has even been held that in the absence of a special public interest in
 477

an industry, provision for a compulsory arbitration to settle labour disputes would be a violation of the
guarantee of 'due process'66.
On the other hand, it has been held that--

67a)  "The constitutional right of workers to assemble, to discuss and to formulate

plans for furthering their self-interest in jobs cannot be construed as a constitutional
guarantee that none shall get and hold jobs except those who will join in the assembly or
will agree to abide by the assembly's plans .......". 67 In other words, the right to form a
trade union does not include a right to exclude non-union men from employment. 68
Hence, a statute which prohibits an employer from discriminating against nonunion
workers, does not violate the freedom of collective bargaining or of assembly. 69

70b)  Nor would the freedom include a right of union workers to combine to use
their joint power to prevent sales to non-union workers, which constitutes a restraint
upon the freedom of trade,70 even though such combination might act ually help
manufacturers, consumers or the public in general71 (unless, of course, the law against
restraint of trade expressly grants the exemption in favour of trade unions).
Article 11 of European Convention on Human Rights says - (1) Everyone has the right to freedom of
peaceful assembly and the freedom of association with others, including the right to form and join
trade union for the protection of his interest. (2) No restriction shall be placed on the exercise of these
rights other than such as one prescribed by law and are necessary in a democratic society in the
interest of national security or public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others. This article shall not prevent
the imposition of lawful restriction on the exercise of these rights by members of the armed forces, of
the police or the administration of the State.
The question whether a workman can refuse to join a union was considered in Young, James &
Webster v. UK ,72In 1975, British Rail entered into a closed shop agreement which made membership
of a certain trade union a condition of employment. Taking into consideration the provisions of Trade
Union and Labour Relation Act, 1974, which allowed for the dismissal of refusing to join a trade union,
unless the refusal was on grounds of religious beliefs. In determining whether the provision infringed
Art. 11, the court considered the "negative aspect" of freedom of association, in other words, the right
not to join the group. It was found that the negative aspect was not on the same footing as the positive
aspects, but that when an individual's freedom of choice in association was "so" abridged - where
there was only one ground on which it was possible to refuse to join a union - then an interference
with freedom of association had occurred since it must necessarily include freedom of choice. This
does not mean that all closed shops agreement violates Art. 11. The court was careful to confine its
argument on the facts of specific case. The case was decided only on Art. 11(1). Thereafter, the UK
law was changed by means of a provision inserted into Employment Protection (Consolidation) Act,
1978. By s. 58 of that Act, it widened the exceptions on grounds of religious belief to include making
dismissal unlawful if the person objected on the grounds of a deeply held conviction of being a
member of Trade Union.
U.K.
(B) England.--While contracts in restraint of trade were obnoxious to the common law, trade
associations for the purpose of collective bargaining were considered useful for maintaining industrial
peace and were, accordingly, legalised by the Trade Union Act, 1871. Collective bargaining was
considered essential because "freedom of contract was meaningless when one side was utterly
powerless to resist the demands of the other".73
A trade union has, further, been vested with all powers of a legal person except those which are solely
characteristic of a natural person.74 it can thus bring a legal action, such as for a libel or any other
tort,75including an act ion against the officer of another union, in their personal, capacity, say, for libel, 76
or for restraining them from enforcing any resolution of theirs. 77
 478

A trade union also enjoys a special immunity under the civil law of wrongs, namely, from the liability for
damages for tortious acts. The Trade Disputes Act, 1906 provides--

68a)  "An act done by a person in contemplation or furtherance of a trade dispute

shall not be act ionable on the ground only that it induces some other person to break a
contract of employment or that it is an interference with the trade, business, or
employment of some other person".
71b)  "An act done in pursuance of an agreement or combination by two or more
persons shall, if done in contemplation or furtherance of a trade dispute, not, be act
ionable unless the act, if done without any such agreement or combination, would be act
ionable."
India
(C) India.--In India, similarly, it has been held that the freedom of association includes the right to form
a trade union78 with the object of collective bargaining79. Collective bargaining is the primary object of a
trade union as its Dictionary meaning says. A trade union is thus defined as "an association of wage-
earners or salary-men, formed primarily for the purpose of collective action for the forwarding or
defence of its professional interests".80
Sections 17-18 of the Trade Unions Act , 1926 immunise a registered trade union from civil or
criminal liability for any act done in furtherance of a trade dispute. Any trade union may get itself
registered under the Act, and a 'trade union' is defined as follows:
"Trade Union" means any combination, whether temporary or, permanent, formed primarily for the
purpose of regulating the relations between workmen and employers or between workmen and
workmen or between employers and employers, or for imposing restrictive conditions on the conduct
of any trade or business ...........".
The Act thus recognises the right of collective bargaining through the medium of a trade union.
Collective bargaining is a technique by which disputes as to condition of employment are resolved
amicably by agreement, rather than by coercion. The dispute is settled peacefully and voluntarily,
although reluctantly between labour and management. 81 Negotiations between employer and the
representatives of organised employees to determine the condition of employment such as wages,
hours and fringe benefits.82 Collective bargaining means the joint determination by employees and
employers of the problem of employment relationship. Such problems include wage rate, wage
system, hours and overtime, vacations, discipline, work loads, classification of employees, layoffs and
worker retirement. The advent of collective bargaining does not give rise to these problems. Rather
they are germane to the industrial relations environment and exist with or without unionization. 83
Collective bargaining is a technique by which disputes as to conditions of employment are resolved
amicably, by agreement, rather than by coercion. The dispute is settled peacefully and voluntarily,
although voluntarily between labour and management. 84
Collective bargaining is the method of determining the terms and conditions of employment and
settling disputes arising from those terms by negotiation between employer and employees. The very
fact that the parties receive the ultimate right to use economic weapons of strikes and lock-outs, helps
in stimulating the parties to arrive at an agreement. The conciliation machinery can be used to
improve collective bargaining. Although in conciliation, there is a third party intervention, the terms of
settlement are still by the agreement of the disputing parties since the conciliation officer only assists
the parties to have a "meeting of the minds". While compulsory adjudication is a negation of collective
bargaining, voluntary arbitration, atleast, on the interpretation of the terms of an agreement, is
conducive to collective bargaining since both the parties voluntarily submit themselves to the award of
the arbitrator.85
Certain observations of the Supreme Court in the All India Bank Employees' Assocn case86 however,
suggest that though the object with which a trade union is formed may be collective bargaining, the
right of collective bargaining is not included in the fundamental right to form an association which is
 479

guaranteed by Art. 19(1)(c). But, reading the observations in their entirety, together with their context,
it does not appear that such a broad proposition was intended. The relevant observations are--
"...the right guaranteed by sub-cl. (c) of Cl. (1) of Art. 19 does not carry with it the concomitant right
that the unions formed for protecting the interests of labour shall achieve the purpose for which they
were brought into existence, such that any interference to such achievement by the law of the land
would be unconstitutional unless the same could be justified as in the interest of public order or
morality. In our opinion, the right guaranteed under, sub-cl. (c) of Cl. (1) of Art. 19 extends to the
formation of an association and in so far as the act ivities of the association are concerned or as
regards the step which the union might take to achieve the purpose of its, creation, they are subject to
such laws as might be framed and that the validity of such laws is not to be tested by reference to the
criteria to be found in Cl. (4) of Art. 19 of the Constitution." 87
In the Author's opinion, the Court has made a distinction between the object (provided it is lawful) for
which an association is formed and the steps it resorts to in order to achieve that object. There is no
doubt that restrictions are permissible on such steps according as they tread on different spheres of
social interests which call for public control. The permissible grounds of restriction on such steps
resorted to by lawful associations are not, accordingly, limited to those grounds only which are
specified in Cl. (4) of Art. 19. To hold otherwise, would be to come to the untenable view that merely
by joining together, particular individuals would be immune from those restrictions to which they would
individually have been subject. In the words of the Court--
"While the right to form a union is guaranteed, by sub-cl. (c), the right of the members of the
association to meet would be guaranteed by sub-cl. (b), their right to move from place to place within
India by sub-cl. (d), their right to discuss their problems and to propagate their views by sub-cl. (a),
their right to hold property would be that guaranteed by sub-cl. (f) and so on--each of these freedoms
being subject to such restrictions as might properly be imposed by Cls. (2) to (6) of Art. 19 as might be
appropriate in the context."(p. 180), Constitution." 88
With great respect, in some other places, the Court, speaking through AYYANGAR J., has not
maintained the distinction between the object and the steps to carry out the object, by clubbing
together collective bargaining with strike, e.g., in the following passage--
"...even a very liberal interpretation of sub-cl. (c) of Cl. (1) of Art. 19 cannot lead to the conclusion that
the trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part
of collective bargaining or to strike, as part of collective bargaining or otherwise. The right to strike or
the right to declare a lock-out may be controlled or restricted by appropriate industrial legislation, and
the validity of such legislation would have to be tested not with reference to the criteria laid down in Cl.
(4) of Art. 19 but by totally different considerations" (p. 181). 89
Collective bargaining is the object with which a trade union or association is formed by workmen or
employees, just as an association may be formed with a religious, cultural or educational object, by
persons belonging to different groups inspired with religious, cultural or educational interests or ideas.
In such cases, to say that the right to achieve that object is not included in the freedom of association
guaranteed by Cl. (c) would be to render hollow and unmeaning the fundamental right guaranteed
thereby. In other words, the right to achieve the objects of such associations may be curtailed or
controlled only if such object is prejudicial to public order or public morals or the sovereignty or
integrity of India. It would, in short, be a contravention of the freedom guaranteed by sub-cl. (c) to so
legislate that an association formed for a religious object cannot pursue that object even though it is
not prejudicial to the grounds mentioned in Cl. (4). Similarly, illegitimate would be for the State to so
legislate that the trade union cannot collectively represent the employees in their negotiations with the
employer,--whether private or public,--even though such object, as such, is not prejudicial to the
collective interests safeguarded by Cl. (4).
It may be stated that the legal position as declared in All India Bank Employees Association case was
reiterated in Dharam Dutt v. Union of India .90 Apart from relying on the decision in All India Bank
Employees Association case, Court was also guided by the decision in Maneka Gandhi v. Union of
India ,91 wherein it was observed that "every activity which facilitates the exercise of a named
fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as
 480

such merely because it may not be possible otherwise to effectively exercise that fundamental right.
What is necessary to be seen is and that is the 'test' which must be applied, whether the right claimed
by the petitioner is an integral part of a named fundamental right or partakes of the same basic nature
and character as the named fundamental right so that the exercise of such right is in reality and
substance nothing but an instance of the exercise of the named fundamental right". Following the
above two decisions, it was held, (1) a right to form association or union does not include within its ken
as a fundamental right a right to form association or union "for achieving a particular object or running
a particular association", the same being a concomitant or concomitant to a concomitant of a
fundamental right, but not a fundamental right itself. The association or union of citizen cannot further
claim as a fundamental right that they must also be able to achieve the purpose for which they have
come into existence, so that any interference with such achievement by law shall be unconstitutional,
unless the same could be justified under Art. 19(4) as being a restriction imposed in the interest of
public order or morality. (2) A right to form an association guaranteed under Art. 19(1)(c) does not
imply the fulfilment of every object of an association as it would be contradictory to the scheme
underlying the text and frame of the several fundamental rights guaranteed by Part III and particularly
by the scheme of the guarantees conferred by Cls. (a) to (g) of Clause (1) of Art. 19(3). (3) While right
to form an association is to be tested by reference to Art. 19(1)(c) and the validity of the restriction
thereon by reference to Art. 19(4), once the individual citizens have formed an association, and carry
out some act ivity, the validity of the legislation restricting the activities of the association shall have to
be judged by reference to Art. 19(1)(g) read with Art. 19(6). A restriction on the activities of the
association is not a restriction on the act ivities of the individual citizens forming membership of the
association. (4) A perusal of Art. 19 with certain other Articles like 26, 29 and 30 shows that while Art.
19 grants rights to the citizen as such, the association can lay claim to the fundamental rights
guaranteed by Art. 19, solely on the basis of their being an aggregation of citizens, i.e., the rights of
citizens composing the body. As the stream can rise no higher than the source, association of citizens
cannot lay claim to rights not open to citizens or claim freedom from restrictions to which the citizens
composing it are subject.
It was further held that a right to form union guaranteed by Art. 19(1)(c) does not carry with it a
fundamental right in the union so formed to achieve every object for which it was formed with the legal
consequence that any legislation not falling within Clause (4) of Art. 19 which might in any way
hamper the fulfilment of those objects, should be declared unconstitutional and void. Even a liberal
interpretation cannot lead to the conclusion that the trade unions have a guaranteed right to an
effective collective bargaining or to strike, either as part of collective bargaining or otherwise.
Merely because a scheme excludes the operation of Industrial Disputes Act , 1947 it will not follow
that Art. 19(1)(c) is violated. The right under Art. 19(1)(c) of the trade unions are not affected. The right
to form unions is still available and collective bargaining as such is also not barred. 92
In the case of strike, however, other considerations come in. Strike is a step resorted to by a trade
union to strengthen or support collective bargaining. Such a step can undoubtedly be restricted by the
State not only in the interests of public order or morality, but on the grounds permissible under Cl. (6),
if the strike is resorted to as against a business establishment. In this case the exercise of the right of
collective bargaining has a direct impact on the freedom of business of another person.
As DAS C. J., pointed out in the Kerala Education Bill Reference,93 the ambit of the fundamental right,
e.g., the right conferred by Art. 30(1), is to be determined with reference to the object or purpose for
which it has been granted. In the case of the right as conferred by Art. 30(1), for instance, the object is
to enable the members of minority communities to conserve their religion, language or culture and
also to give a thorough, good general education to their children. Any restriction, therefore, which
renders it impossible for an educational institution established by a minority to effectively achieve this
object would be a fetter on the right guaranteed by Art. 30(1). In the same strain, it can be said that the
right to enter into collective bargaining being the object for which an association is formed by
employees and labourers, the achievement of that object enters into the ambit of the right conferred
by Art. 19(1)(c), subject, of course, to the restrictions which may be lawfully imposed by the State
under Cl. (4). The validity of the restrictions imposed on collective bargaining, cannot, as such,
 481

accordingly be placed on the same footing with the validity of restrictions placed on a strike resorted to
by a trade union.
But in Dharam Dutt's case,94 Supreme Court did not make any difference between a right to strike and
a right to collective bargaining (Para 28).
In Raghubhar Dayal Jai Prakash v. Union of India ,95it was contended that the freedom guaranteed
under Art. 19(1)(c) should be so read as extending not merely to the formation of the association as
such, but also to the effective functioning of the association so as to enable it to achieve its lawful
objectives. Unless Art. 19(1)(c) was so read, the freedom guaranteed would be illusory and the court
should, in construing a freedom guaranteed to the citizen, give him an effective right. The submission
was that, the right guaranteed under sub-clause (c) of Clause (1) of Art. 19 was not merely, as its text
would indicate, the right to form an association, but would also include the "functioning of the
association without any restraints" not dictated by the need for preserving order or the interest of
morality. Rejecting the argument, Supreme Court held, "The restriction imposed by s. 6 of the Act
(Forward Contracts (Regulation) Act, 1952) is for the purpose of recognition and no association is
compelled to apply to the Government for recognition under the Act . An application for the recognition
of the association for the purpose of functioning under the enactment is a voluntary act on the part of
the association and if the statute imposes condition subject to which alone recognition could be
accorded or continued, it is a little difficult to see how the freedom to form the association is affected
unless, of course, that freedom implies or involves a guaranteed right to recognition also.
But--

47i)  The freedom to form a trade union would not include a right to have
nonunion men excluded from employment.96
45ii)  Since the right to form a union belongs to all workmen, every workman
under an employer has the freedom to form a union of his own choice and to refuse to
become a member of any union he does not like.97 Conversely, no union can claim a
monopoly right or a right to complain if some other union is brought into existence by
other workmen.98
29iii)  The constitutional right to form a trade union does not carry with it any right
of every individual union to represent its members in an industrial dispute and any
conciliatory law which provides for representation of labour by 'representative' unions,
e.g., by providing that only those unions which represent not less than 15%, of the
workers in an industry would be recognized for the purpose of representing the workers
of that industry in an industrial dispute, does not constitute a 'restriction' upon the
freedom of association. For, it is open to any worker to form a union which enlists the
required percentage or even a higher percentage of workers. 99
21iv)  Even though a person may not have a legal right to be admitted to a
particular union, a trade union cannot exclude any of its members otherwise than in
accordance with the rules of the union100 and, where the rules require an inquiry, the
inquiry must be made in conformity with the rules of natural justice, unless modified by
the rules.101
In such cases, the courts do not sit as a court of appeal from the exercise of discretion or
the formation of opinion by union officers or Committees; but it interprets the union rules
(which form the terms of a contract between the member and the union) applies the
principles of natural justice, considers whether there was any evidence on which the
opinion of a Committee could be based, and keeps domestic tribunals within their
jurisdiction. When the court finds that the expulsion is wrongful, it will issue a declaration
to that effect, if there is no other appropriate remedy, and if necessary an injunction
against continuing to exclude the plaintiff from membership. The same principle applies
to wrongful infliction of fines.102
The source of power of association like clubs and lodges to expel their members is the
contract on the basis of which they become members. This contractual origin of the rules
 482

of expulsion has its corollary in the cognate rule that in expelling a member, the condition
laid down in the rule must be 'strictly' complied with. Whether the doctrine of 'strict'
compliance with rules implies that every minute deviation from the rules, whether
substantial or not, would render the act of such a body void depends upon the nature of
the rule infringed; whether a rule is mandatory or directory depends upon each rule, the
purpose for which it is made, and setting in which it appears. A person who joins an
association governed by rules under which he may be expelled ... has no legal right to
redress, if he is expelled according to the rules, however unfair and unjust the rules or
action of the expelling tribunal may be, provided that the act is in good faith.
The jurisdiction of court is rather limited; it cannot obviously sit as a court of appeal from
decision of such body; it can set aside the order of such body if the body acts without
jurisdiction or does not act in good faith or act in violation of the principles of natural
justice.103
17v)  By the Trade Union Act, 1926, provision has been made for registration of
trade unions and registered trade unions have been allowed to constitute a separate
fund for specified political purposes.
Right to strike
A strike may be defined as the cessation of work by a combination of employed persons in
consequence of a dispute, done as a means of inducing their employer or any employed persons to
accept or refuse terms of employment. The "so-called right to strike" is merely the liberty of a number
of persons in concert to do what each one may do individually, i.e., to withdraw their labour, provided it
is voluntary and neither the object nor the means used are unlawful at common law or by statute. A
strike is not even a breach of contract if due notice is given to the employer, as is almost invariably
done. It makes no difference for this purpose whether or not a strike is "official", i.e., called by the
authorised officers of the union; but if the strike is 'unofficial', strike benefits are not payable out of
union funds.104 The word "strike" means a simultaneous cessation of work on the part of the workmen,
a body of persons employed in a trade or industry acting in combination or a concerted refusal or a
refusal under a common understanding of any number of persons who are or who have been so
employed, to continue to work or to accept employment. 105 It has been further explained as "concerned
stoppage of work by workers done with a view to improving their wages or conditions, or giving vent to
a grievance or making a protest about something or the other or supporting or sympathizing with other
workers in such endeavour".106 Also see s. 2(q) of Industrial Disputes Act (14 of 1947). Strike is an act
of quitting work by a body of workmen for the purpose of coercing their employer to accede to some
demand they have made upon him and which he has refused. 107'Strike' is an act of quitting work by a
body of workmen for the purpose of coercing their employer to accede to some demand they have
made upon him and which he has refused.108'Strike' is a word of an artificial character and does not
represent any legal definition. It is an agreement between persons who are working for a particular
employer not to continue working for him. It is a concerted stoppage of work by men done with a view
to improving their wages or conditions or giving vent to a grievance or making a protest about
something or other or supporting or sympathising with other workmen in such endeavour. 109
Industrial Covenant on Economic, Social and Cultural Rights entered into by several State parties
adopted by U. N. General Assembly in 1966 explicitly speaks about the right to strike. It is ratified by
India also.
Article 8 of the Covenant reads thus - (1) The State Parties to the present covenant undertake to
ensure: (a) The right of everyone to form trade unions and join trade union of his choice, subject only
to the rules of the organisation concerned, for the promotion and protection of his economic and social
interests. No restrictions may be placed on the exercise of this right other than those prescribed by
law and which are necessary in a democratic society in the interests of national security or public
order for the protection of the rights and freedom of others. (b) The right of trade unions to establish
national federation or confederations and the right of the latter to form or join international trade union
organisations. (c) The right of the trade unions to function freely subject to no limitation other than
those prescribed by law and which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedom of others. (d) The right to strike,
 483

provided that it is exercised in conformity with the laws of the particular country. (2) This article shall
not prevent the imposition of lawful restrictions on the exercise of these rights by the members of the
armed forces or of the police or of the Administration of the State. (3) Nothing in this Article shall
authorise State Parties to the International Labour Organisation Convention of 1948 concerning
Freedom of Association and Protection of the Right to Organise to take legislative measures which
would prejudice or apply the law in such a manner as would prejudice the guarantees provided in that
Convention.
1 Cheall v. Apex, (1983) 1 All ER 1130 (1136)(HL) ; Educational Co. v. Fitzpatrick, (1961) IR 345; Meskell v. C.I.E.,
(1973) IR 21; Tierney v. Amalgamated Soc., (1959) IR 254.

2 Sitharamacharya v. S.D.I., AIR 1958 AP 78.

3 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 (815-6) : 1962 Spp (1) SCR 789.

4 D.A.V. College v. State of Punjab, AIR 1971 SC 1737 (1747) : (1971) 2 SCC 269.

5 Damyanti Naranga v. Union of India, AIR 1971 SC 966 : (1971) 1 SCC 678 (para. 6).

6 AIR 1985 SC 973 : (1985) 2 SCC 670.

7 SeeA.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286 : AIR 2011 SC 3298.

8 Daman Singh v. State of Punjab, AIR 1985 SC 973 : (1985) 2 SCC 670; Zoroastrian Co-operative Housing Society
Ltd. v. District Registrar of Co-operative Societies (Urban), (2005) 5 SCC 632 : AIR 2005 SC 2306. See alsoState of
U.P. v. C.O.D. Chheoki Employees' Co-op. Society Ltd., AIR 1997 SC 1413 : (1997) 3 SCC 681.

9 SeeTaff Vale Railway Co. v. Amalgamated Society, (1901) AC 426; Bonsor v. Musicians Union, (1956) AC 104 :
(1955) 3 All ER 518.

10 See Justice (R) Fazal Karim (Supreme Court of Pakistan), Judicial Review of Public Actions, 2006 Edn., Vol. I at pp.
700-701.

11 Seimens Ltd. v. Seimens employees Union, (2011) 9 SCC 775 : AIR 2012 SC 175.

12 U.P. Sharmik Maha Sangh v. State of U.P., AIR 1960 All. 45. Also see ERE Congress v. General Manager, AIR 1965
Cal 389.

13 Raghubar v. Union of India, AIR 1962 SC 263 (270) : (1962) 3 SCR 547.

14 Raghubar v. Union of India, AIR 1962 SC 263 (270) : (1962) 3 SCR 547.

15 All India Bank Employees' Assocn, v. National Industrial Tribunal, AIR 1962 SC 171 : (1962) 3 SCR 269; D.A.V.
College v. State of Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

16 All India Bank Employees' Assocn, v. National Industrial Tribunal, AIR 1962 SC 171 : (1962) 3 SCR 269; D.A.V.
College v. State of Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

17 Raghubar v. Union of India, AIR 1962 SC 263 (270) : (1962) 3 SCR 547.

18 Balakotiah v. Union of India, AIR 1958 SC 232 : 1958 SCR 1052.

19 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 (815) : 1963 Supp (1) SCR 789.

20 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 (815) : 1963 Supp (1) SCR 789.

21 Sitharamachary v. Dy. Inspector of Schools, AIR 1958 A.P. 78.

22 Ramakrishnaiah v. District Board, AIR 1952 Madras 253.

23 Bhegula v. Civil Surgeon, AIR 1960 All. 353.

24 Zoroastrian Co-op. Housing Society v. Dt. Registrr, Co-operative Societies (Urban), AIR 2005 SC 2306 : (2005) 5
SCC 632.

25 See Delhi Police Non-Gazetted Karmachari Sangh v. UOI, AIR 1987 SC 379 : (1987) 1 SCC 115.
 484

26 Vasudevan v. Mittal, AIR 1962 Bom 53.

27 Ref. On the Kerala Education Bill, AIR 1958 SC 956 (985) : 1959 SCR 995.

28 Bhagelu v. Civil Surgeon, AIR 1960 All 353.

29 Eastern Railways Employees Congress v. General Manager, AIR 1965 Cal 389.

30 SeeBalmer Labour Workers' Union v. Balmer Lawrie & Co. Ltd., AIR 1985 SC 311 : (1984) Supp SCC 663; Raja
Kulkarni v. State of Bombay, AIR 1954 SC 73 : (1954) SCR 384; Ram Prasad Vishwakarma v. The Chairman, Industrial
Tribunal, AIR 1961 SC 857 : (1961) 3 SCR 196; Girija Shanker Kashi Ram v. Gujarat Spg. & Wvg. Mills Ltd., (1962)
(Supp-2) SCR 890; Santhuram Khudai v. Kimatrani Printers & Processors (P.) Ltd., AIR 1978 SC 202 : (1978) 1 SCC
162.

31 Shivanand Gourishankar Baswanti v. Lakshmi Vishnu Textile Mills, (2008) 13 SCC 323 : AIR 2009 SC 825; see also
Textile Labour Assn. v. Ahmedabad Mills, (1970) 3 SCC 890; Santuram Khudai v. Kimatrani Printers & Processors (P.)
Ltd., AIR 1978 SC 202 : (1978) 1 SCC 162 (supra).

32 AIR 2006 SC 3106 : (2006) 11 SCC 731 (2).

33 Bokajan Cement Corporation Employees Union v. Cement Corporation of India Ltd., AIR 2004 SC 245 : (2004) 1
SCC 142.

34 Shital Prasad v. Dy. Accountant General, AIR 1955 All 623.

35 Divakaran v. State of Travancore-Cochin, AIR 1958 Ker 283.

36 Ref. On the Kerala Education Bill, AIR 1958 SC 956 (985) : 1959 SCR 995.

37 Ref. On the Kerala Education Bill, AIR 1958 SC 956 (985) : 1959 SCR 995.

38 Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717.

39 See alsoUnnikrishnan v. State of A.P., (1993) 1 SCC 645 : AIR 1993 SC 2178.

40 Rajasthan Pradesh Vaidya Samiti v. UOI, AIR 2010 SC 2221 : (2010) 12 SCC 609.

41 Chairman, Bharatia Educational Society v. State of HP, (2011) 4 SCC 527 : (2011) 3 SCALE 48.

42 Cf. D.N. Banerjee v. P.R. Mukherjee, 1953 SCR 302 (310) : AIR 1953 SC 58; Swadeshi Industries v. Workmen, AIR
1960 SC 1258 (1260) : (1960) 2 LLJ 78.

43 State of Madras v. V.G. Row, AIR 1952 SC 196 : 1952 SCR 597.

44 Eastern Employees' Congress v. General Manager, Eastern Ry., AIR 1965 Cal 389.

45 Bates v. Little Rock, (1960) 361 US 516 (523).

46 Bates v. Little Rock, (1960) 361 US 516 (523).

47 Herbertsons v. Workmen, AIR 1977 SC 322 : (1976) 4 SCC 736. See also Balmer Labour Workers' Union v. Balmer
Lawrie & Co. Ltd. AIR 1985 SC 311 : (1984) Supp SCC 663; Shivanand Gourishankar Baswanti v. Lakshmi Vishnu
Textile Mills, (2008) 13 SCC 323 : AIR 2009 SC 825; B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage
Board Employees' Assn., AIR 2006 SC 3106 : (2006) 11 SCC 731 (2); Textile Labour Assn. v. Ahmedabad Mills, (1970)
3 SCC 890.

48 Herbertsons v. Workmen, AIR 1977 SC 322 : (1976) 4 SCC 736. See also Balmer Labour Workers' Union v. Balmer
Lawrie & Co. Ltd. AIR 1985 SC 311 : (1984) Supp SCC 663; Shivanand Gourishankar Baswanti v. Lakshmi Vishnu
Textile Mills, (2008) 13 SCC 323 : AIR 2009 SC 825; B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage
Board Employees' Assn., AIR 2006 SC 3106 : (2006) 11 SCC 731 (2); Textile Labour Assn. v. Ahmedabad Mills, (1970)
3 SCC 890.

49 Tata Chemicals Ltd. v. Workmen, AIR 1978 SC 828 : (1978) 3 SCC 42 : (1978) 2 LLJ 22; Also seeANZ Grindlays
Bank Ltd. v. Union of India, AIR 2006 SC 296 : (2005) 12 SCC 738.

50 Balmer Lawrie Workers Union v. Balmer Lawrie & Co. Ltd., AIR 1985 SC 311 : 1984 Supp. SCC 663 : (1985) 1 LLJ
314.
 485

51 Chairman, State Bank of India v. All Orissa State Bank Officers' Association, (2003) 11 SCC 607 : AIR 2003 SC
4201 : (2003) 3 LLJ 751 - earlier decision in Chairman, State Bank of India v. All Orissa State Bank Officers'
Association reported in AIR 2002 SC 2279 : (2002) 5 SCC 669 : (2002) 2 LLJ 562 was set aside on review.

52 B.L. Union v. B.L. & Co., AIR 1985 SC 311 (paras. 16-17).

53 D.P. Union v. Union of India, (1987) 1 SCC 115 : AIR 1987 SC 379.

54 See also Ous Kutilingal Atchuthan Nair v. UOI, AIR 1976 SC 1179 : (1976) 2 SCC 780.

55 Delhi Police Non-Gazetted Karmachari Sangh v. Union of India, AIR 1987 SC 379 : (1987) 1 SCC 115. See also
Gopal Upadhyaya v. Union of India, AIR 1987 SC 413 : 1986 Supp SCC 501.

56 Ous Kutilingal Achudan Nair v. Union of India, AIR 1976 SC 1179 : (1976) 2 SCC 780.

57 Now repealed.

58 SeePeople's Union for Civil Liberties v. UOI, AIR 2004 SC 456 : (2003) 10 JT (SC) 70 : (2004) 9 SCC 580.

59 (1965) 384 US 11.

60 (1960) 367 US 203.

61 See also Nota v. US, (1960) 367 US 290; Communist Party v. Subversive Activities Control Board, (1960) 367 US 1;
Joint Anti-Fascist Refugee Committee v. McGrath, (1950) 341 US 123; Keyishian v. Board of Regent of New York,
(1966) 385 US 589; Brandenburg v. Ohio, (1968) 395 US 444; Whitney v. California, (1926) 274 US 357; Gitlow v. New
York, (1924) 268 US 652; De Jongi v. Oregon, (1936) 299 US 353; Abrams v. US, (1918) 250 US 616.

62 SeeIndra Das v. State of Assam, (2011) 3 SCC 380 : (2011) 2 SCALE 312; Arup Bhuyan v. State of Assam, (2011) 3
SCC 377 : AIR 2011 SC 957; State of Kerala v. Raneef, (2011) 1 SCC 784 : AIR 2011 SC 340.

63 American Steel Foundries v. Tri-City C.T. Council, (1922) 257 US 184 (209).

64 National Labour Relations Board v. Jones, (1937) 310 US 1.

65 See American Steel Foundries v. Tri City Central Trades Council, (1921) 257 US 184.

66 Wolff Packing Co. v. Court of Industrial Relations, (1923) 262 US 522.

67 Lincoln Federal Labour Union v. N. Iron Co., (1949) 335 US 525 (531).

68 Whitaker v. State of N. Carolina, (1949) 335 US 525.

69 American Fed. of Labour v. American Sash Co., (1949) 335 US 538.

70 Giboney v. Empire Storage Co., (1949) 336 US 490 (495).

71 Fashion Originatous' Guild v. Federal Trade Commn., (1941) 512 US 457 (467).

72 (1981) 4 EHRR 38.

73 S. & B. Webb, The History of Trade Unionism, 2nd Edn., p. 112.

74 National Union v. Gillan, (1946) 1 KB 81(CA) .

75 National Union v. Gillan, (1946) 1 KB 81(CA) .

76 National Union v. Gillan, (1946) 1 KB 81(CA) .

77 National Sailors' Union v. Reed, (1926) Ch. 536.

78 Kulkarni v. State of Bombay, AIR 1951 Bom 105, affirmed by AIR 1954 SC 73 (75) : 1954 SCR 384.

79 D.N. Banerjee v. P.R. Mukherjee, (1953) SCR 302 (310) : AIR 1953 SC 58; Newspapers Ltd. v. State Industrial
Tribunal, AIR 1957 SC 532 (537) : 1957 SCR 754, Swadeshi Industries v. Workmen, AIR 1960 SC 1258 (1260) : (1960)
2 LLJ 78.

80 Chamber's Encyclopaedia, Vol. XIII, p. 725.

 486

81 Karnal Leather Karamchari Sanghathan v. Liberty Footwear Co., (1989) 4 SCC 448 : AIR 1990 SC 247.

82 Black's Judicial Dictionary, 7th Edn., 1999.

83 Benjamin Taylor & Fred Whitney, Labour Relations Law, 3 (1971).

84 Karnal Leather Karmachari Sangathan v. Liberty Footwear Co., (1990) LabIC 307(SC) .

85 See Article by Ahmedullah Khan of Osmania University, Journal of Indian Law Institute, Volume 23 (1981).

86 All India Bank Employees' Associn. v. National Industrial Tribunal, AIR 1962 SC 171 (181-2) : (1962) 3 SCR 269.

87 All India Bank Employees' Associn. v. National Industrial Tribunal, AIR 1962 SC 171 (181-2) : (1962) 3 SCR 269.

88 All India Bank Employees' Associn. v. National Industrial Tribunal, AIR 1962 SC 171 (181-2) : (1962) 3 SCR 269.

89 All India Bank Employees' Associn. v. National Industrial Tribunal, AIR 1962 SC 171 (181-2) : (1962) 3 SCR 269.

90 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC 712.

91 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.

92 Kishan Prakash Sharma v. Union of India, AIR 2001 SC 1493 : (2001) 5 SCC 212.

93 In re Kerala Education Bill, AIR 1958 SC 956 (979, 985) : 1958 SCR 995.

94 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC 712 (supra).

95 Raghubar Dayal Jai Prakash v. Union of India, AIR 1962 SC 263 : (1962) 3 SCR 547.

96 Whitaker v. State of N. Carolina, (1949) 335 US 525.

97 O.K. Ghosh v. Ex. Joseph, AIR 1963 SC 812 (815) : 1963 Supp (1) SCR 789.

98 K.R.W. Union v. Registrar, AIR 1967 Cal 507 (508).

99 Kulkarni v. State of Bombay, AIR 1951 Bom 105, affirmed by AIR 1954 SC 73 (75) : 1954 SCR 384.

100 Bonsor v. Musician's Union, (1955) 3 All ER 518(HL) .

101 O'Reilly v. Gittens, AIR 1949 PC 313 (317).

102 See Hood Philips, Constitutional and Administrative Law, 3rd Edn., pp. 486-487.

103 T.P. Daver v. Lodge Victoria, AIR 1963 SC 1144 : (1964) 1 SCR 1.

104 Hood Philips, Contractual and Administrative Law, 3rd Edn., p. 484.

105 Halsbury's Laws of England, 4th Edn., Vol.IV, p. 1144, para 581.

106 Halsbury's Laws of England, 4th Edn.,,Vol. 47, p. 469, (para 567).

107 Black's Law Dictionary, 5th Edn., p. 1591.

108 Black's Law Dictionary, 5th Edn., p. 1591 as referred in Vikas Vashi Shah v. Allahabad High Court, (2004) 8
SCALE 233 : (2004) 6 SLT 503(SC) .

109 Tramp Shipping Corpn. v. Greenwich Marine Inc., (1975) 2 All ER 989.

Additional Protocol to the American Convention on Human Rights in the area of economic, social and
cultural rights "Protocol of San Salvador - Article 8 says: "(1) The State parties shall ensure (a) the
right of workers to organise trade unions and to join the union of their choice for the purpose of
protecting and promoting their interest. As an extension of that right, the State parties shall permit
trade unions to establish national federations or confederation or to affiliate with those that already
exist as well as to form international trade union organisations and to affiliate with that of their choice,
 487

the State parties shall also permit trade unions, federation and confederation to function freely; (b) the
right to strike. (2) The exercise of the rights set forth above may be subject only to restrictions
established by law; provided that such restrictions are characteristic of a democratic society and
necessary for safeguarding public order or for protecting public health or morals or the rights and
freedom of others. Members of armed forces and the police and of other essential public services
shall be subject to limitations and restrictions employed by law. (3) No one may be compelled to
belong to a trade union".
The International Labour Organisation Declaration on Fundamental Principles and Rights at Work
made at its 86th Session, Geneva in June 1998, categorically states that "All members, even if they
have not ratified the Convention in question, have an obligation arising from the very fact of
membership in the Organisation to respect, to promote and to realise, in good faith and in accordance
with the Constitution, the principles concerning the fundamental rights which are subject of those
Convention, namely: (1) freedom of association and the effective recognition of the right to collective
bargaining; (2) the elimination of all forms of forced or compulsory labour; (3) the effective abolition of
child labour; and (4) the elimination of discrimination in respect of employment and occupation.
Universal Declaration of Human Rights of UNO declares one's right to work, right to just and
favourable remuneration and the right to form and join trade unions as also the right to rest, leisure,
leave, etc. and the right to fair living condition with the necessary social benefits. (Arts. 23, 24 and 25
of the Universal Declaration).
U.S.A.
(A) U.S.A.--The right to strike work collectively to vindicate legitimate grievances would follow from the
right of collective bargaining.
But "because of its more serious impact upon the public interest", the right to strike "is more
vulnerable to regulation than the right to organize and select representatives for lawful purposes of
collective bargaining which this Court1 has characterised as a 'fundamental right'".2
The right to strike has thus been held to exist only subject to regulation by the State. 3"Neither the
common law nor the Fourteenth Amendment confers the absolute right to strike." 4 Since a strike
interferes with a person's right to carry on a business, it will be lawful only if the means employed is
lawful and its purposes is not prohibited by law.5
Thus, a right to strike exists only in so far as it contemplates the unquestionable right of every worker
'to quit work',6 and it does not include a right to resort to a strike which the Legislature has made
illegal,7 or which creates a national emergency8 or affects an industry which is essential for defence
purposes and thus endangers 'national safety',9 or to engage in a concerted effort to interfere with
production which is prohibited by law.10
Any regulation of the right to strike which does not restrict a union member's right or ability to
associate freely for any purpose, including that of conducting a strike, would not be unconstitutional.11
It was in the case of American Steel Foundries v. Tri-City Central Trade Council ,12 the American
Supreme Court recognised labourers' right to strike. It was held, "The strike becomes lawful
instrument in a lawful economic struggle between employer and employees as to the share or division
between joint product of labour and capital".
Labour unions in U.S. have claimed that they have a right to strike or that the same is protected by the
Thirteenth Amendment which prohibits slavery and involuntary servitude. But the Courts did not
recognise the claim. It was interpreted that the Amendment gave a right to an individual worker to
resign. It was as per Norris La Guardia Act, 1932, which gave a right to collective bargaining was fully
recognised. The National Labour Relations Act, 1935 re-emphasised the rights granted under the
Norris La Guardia Act, 1932. The right to strike and to engage in concerted act ivities for the purpose
of collective bargaining was more expressly recognised. Then came the passage of Taft-Hartley Act in
1947 which amended National Labour Relation Act, 1935. Under the new Act, the term "strike"
includes any strike or other concerted stoppage of work by employees (including a stoppage by
 488

reason of the expiration of collective bargaining agreement) any concerted show-down or other
concerted interruption of operation by employees.
Even though 'strike' was recognised as a right, the protection was not given when violence or
destruction of property results from a strike.13 Courts also refused to give the protection to "quickie
strikes", nor the benefit given to slowdown and interruption in work. 14
Courts have also clarified the strikes "as protected" and strikes "as unprotected". Strikes for a lawful
purpose and lawful objective and utilising lawful means are "protected strikes"; whereas a lawful strike
utilising unlawful means or for unlawful objectives was not protected. 15 Protected and unprotected
strikes are also based on another division between types of strikes, namely, strikes for economic
reasons and strikes against unfair labour practice of the employer. A strike is "economic" if the aim is
to organise workers or it is to seek the recognition of the union or it is collective bargaining or it is
protest against the discharge of the worker before the contract is consummated. 16
Both these types of strikes become unprotected, if the ends or the means of the strikers are unlawful.
Unlawful means, for example, are the use of violence, mass picketing, destruction of employer's
property, including refusing to allow other employees to enter the plant, using insulting language, to
abuse and humiliate nonstrikers in order to prevent them from work, visiting homes of non-strikers and
threatening them with violence and distributing literature which degrades the quality and usability of
company's products.17 In such cases, the strikers lose their right to reinstatement since they lose their
status as employees.18
U.K.
(B) England.--A person has the right to strike, i.e., to withhold his labour so long as he does not
commit an unlawful act, such as breach of contract or tort or crime. 19
The right to strike, or to withhold labour, even in concert with others, is lawful, so long as there is no
breach of contract or tort or crime is thereby committed.
A right to strike is not enshrined in any statute, but is impliedly recognised. The right to strike is
specifically excluded from the ambit of emergency regulations which may be made under the
Emergency Powers Act .20 Strike means a simultaneous cessation of work on the part of the workmen,
a body of persons employed in a trade or industry acting in combination, or a concerted refusal or a
refusal under a common understanding of any number of persons who are or who have been so
employed, to continue to work or to accept employment. 21 Strike does not cover the case where
workmen abandon their work through fear of an epidemic or where the employer dismisses them
because he has no work for them. Strike is a general concerted refusal by workmen to work in
consequence of an alleged grievance and includes a sympathetic strike. 22
Usually, it is not done singly but collectively, i.e., in combination with co-employees in the same or
allied concerns. When it has for its object anything other than the furtherance of a trade dispute within
the trade or dispute in which the strikers are engaged, it is called a 'general strike'. General strikes
were made unlawful, as such by the Trade Disputes and Trade Unions Act , 1927, but since the
repeal of this statute by the Trade Disputes and Trade Unions Act , 1946, general strikes will become
unlawful only on the same grounds as any other strike. It has already been stated that strikes in
furtherance of a 'trade dispute' enjoy immunity from an action for damages for procuring a breach of
contract or for conspiracy.
Under the Conspiracy and Protection of Property Act, 1875, strike is a criminal offence for persons
employed in the supply of gas, water or electricity, if it is done without notice to the employer. It is also
an offence, under the Police Act , 1919, for anybody to induce or to attempt to induce any member of
the police service to withhold his services.
Strikes may be declared illegal under the Defence Regulations.
But the Emergency Powers Act, 1920 (as amended in 1964) expressly lays down that no regulations
made under it--
 489

"shall make it an offence for any person or persons to take part in strike, or peacefully to persuade any
other person or persons to take part in a strike."
In the result, a peaceful strike cannot be declared illegal in time of peace, even though Government
has the power to take over the industry itself which is affected by a strike if the essentials of life are
threatened by the strike.23
Strikes in "breach of contract" are made criminal offences under certain conditions by the "Conspiracy
and Protection of Property Act, 1875, viz. such strikes by persons employed in the supply of gas,
water or electricity or where the persons committing the breach of contract knew or had reasonable
cause to believe that human life would be endangered or serious bodily injury caused or valuable
property destroyed or seriously damaged.
India
(C) India.--Our Supreme Court has, however, held that the constitutional freedom of association does
not include any fundamental right to strike.24The court has ruled that the right guaranteed by Art.19(1)
(c) does not carry with it a concomitant right that unions formed for protecting the interests of labour
shall achieve their object such that interference to such achievement by any law would be
unconstitutional unless it could be justified under Art.19(4) as being in the interest of public order or
morality. The right under Art.19(1)(c) extends only to the formation of association or union and in so far
as the act ivities of the association or union are concerned or as regards the steps which the union
might take to achieve its object, they are subject to such laws as may be framed and such law cannot
be tested under Art.19(4). Court held that even a very liberal interpretation of Art.19(1)(c) cannot mean
that the trade unions have a guaranteed right to strike. The right to strike may be controlled by
appropriate industrial legislation.25
In the result, the validity of a law penalising a strike in an essential service cannot be tested with
reference to Cl. (4) of Art. 19.26 Similar view has been taken as regards the validity of a law declaring
illegal a strike in a particular industry27 or prohibiting Government servants to strike.28
The distinction between a 'fundamental' right and a legal or statutory right should not be overlooked in
this context. Thus, even though it has been held that there is no constitutional right to strike in India, a
strike in industrial establishments has been rendered lawful by statute. Thus, a strike in furtherance of
an 'industrial dispute' under the Industrial Disputes Act , 1947, is assumed to be legal 29 except those
which are declared illegal, viz.,

69a)  a strike during pendency of conciliation proceedings or of proceedings

before an Industrial Tribunal;
72b)  a strike in a public utility service, commenced without giving notice, as
required by the Act ;
48c)  a strike prohibited by the appropriate Government in respect of an industrial
dispute which has been referred to a Board of Conciliation or Industrial Tribunal under
the Act.30
The right to strike has been statutorily recognised, though not positively, and directly, but in an indirect
manner by labour statutes and courts. Chapter V of Industrial Disputes Act , 1947 entitled "Strikes
and Lock-outs" provides for the essentials of these rights - one for the workman and the other for the
employer - as if on an equal plane as the legislation is calculated to ensure social justice to both
employers and employees and advance the progress of industry by bringing about the existence of
harmony and cordial relationship between the two parties of the industry. 'Lockout' and 'strike' are
given separate definition under the Act. Chapter V of the Act lays down parameters which define the
legality and justness of the right to strike. Section 18 of Trade Union Act confers civil immunity to
registered trade unions and their members from any possible act ion for damages, etc. arising from
the breach of contract said to have occurred due to strike. In Kairbetta Estate, Kotagiri v.
Rajamanickam ,31 it was observed, "Just as a strike is a weapon available to employees for enforcing
their industrial demands, a lock-out is a weapon available to the employer to persuade by a coercive
process the employees to see his point of view and to accept his demands. In the struggle between
 490

capital and labour, the weapon of strike is available to the labour and is often used by it and so is the
weapon of lock-out available to the employer and can be used by him. The use of both the weapons
by the respective parties must, however, be subjected to the relevant provisions of the Act. Chapter V
which deals with strikes and lock-outs, clearly brings out the ante-thesis between the two weapons
and the limitation subject to which both of them must be exercised". GAJENDRAGADKAR, J.
In Crompton Greaves Ltd. v. The Workmen ,32 it was held that a strike is legal if it does not violate any
provision of the statute and a strike cannot be said to be unjustified unless the reasons for it are
entirely perverse or unreasonable. Whether a particular strike was justified or not is a question of fact
which has to be judged in the light of facts and circumstances of each case.
In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes' Mazdoor Sabha ,33 majority view held "that the right
to unionise, the right to strike as part of collective bargaining and subject to the legality and humanity
of the situation, the right of the weaker group, viz., labour to pressure the stronger party, viz., capital,
to negotiate and render justice are processes "recognised by industrial jurisprudence and supported
by social justice". ... It was held that right to strike was an integral part of collective bargaining.
Reiterating the law declared earlier, it was held that even a liberal interpretation of Art. 19(1)(c) cannot
lead to the conclusion that trade unions have a "guaranteed right" to an effective collective bargaining
or to strike, either as part of collective bargaining or otherwise. The right to strike or to declare a lock-
out may be controlled or restricted by appropriate industrial legislation and the validity of such
legislation would have to be tested not with reference to the criteria laid down in Cl.(4) of Art. 19, but
by totally different consideration.34
In T.K. Rangarajan v. Government of Tamil Nadu ,35 it was held that in regard to Government servants,
they have no right to strike. It was held that there is no fundamental right to strike, nor there is a
statutory or equitable moral right to strike. The decision also took note of the State Governments
Servants Conduct Rules which forbid strikes. In the name of strike or bandh, no person has any right
to cause inconvenience to any other person or cause threat or apprehension of risk to life, liberty and
property of any citizen or the Government.36
According to eminent columnist and lawyer, A. G. NOORANI, in one of his Articles,37 the decision in
Rangarajan's case requires reconsideration. India being a party to international covenants where right
to strike is guaranteed is bound to protect the right. According to the author, only lawful restriction
could be imposed on the said right and not a total denial. Reliance is also placed on two English
decisions - (1) Crafters Handwoven Harris Tweed & Co. v. Veitch ,38 where House of Lords upheld the
right to strike. (2) Morgan v. Fry ,39 where LORD DENNING declared, "It has been held over 60 years
that workmen have a right to strike".40 In the US it is held that right to strike is not absolute nor is a
right under common law nor such a right is conferred by 14th amendment. 41
It is interesting to note that though the U. N. Covenant on Economic, Social and Cultural Rights, 1966
declares, under Art. 8(1)(d), that the State Parties undertake to 'ensure the right to strike', it is diluted
by the words "Provided that it is exercised in conformity with the laws of the particular country". The
position in India, as just explained, is therefore, in conformity with this international standard.
It has also been held that, under the Industrial Disputes Act , the workman would lose his wages
during the period of a strike, whether it is legal or illegal. 42
The legal position, in India, therefore, is that a workman has a statutory right to strike, but this is not a
fundamental right.43 The net result is that though the workman is entitled to resort to strike as a
weapon for collective bargaining, the State is competent to impose, by law, restrictions upon that right,
and the constitutionality of such restrictions cannot be challenged on the basis of Art. 19(4) 44.
Right of collective bargaining of employers
U.S.A.
(A) U.S.A.--The American Supreme Court has come to recognise that in many industries, multi-
employer bargaining might be a vital factor in the effectuation of the policy of promoting labour peace
through strengthened collective bargaining.45
 491

It has even been held that where, during contract negotiations between a labour union and an
employers' association, the union struck and picketed the plant of one of the employers belonging to
the association, it was lawful for the other members of the association to resort to a temporary lock-out
in defence of their interest in bargaining on a group basis.
U.K.
(B) England.--Trade unions of, and collective bargaining by, employers is legal since the Trade Union
Act, 1871 (now replaced by the Trade Union and Labour Relations Act, 1974), as it is in the case of
employees.46 Like "trade union", "employers' association" is also recognized which means an
organisation whether permanent or temporary which either (a) consists wholly or mainly of employers
or individual proprietors of one or more descriptions and is an organisation whose principal purposes
include the regulation of relations between employers and workers or trade unions, or (b) consists
wholly or mainly of constituent or affiliated organisations which themselves fulfil these conditions or of
representatives of such organisations and is an organisation whose principal purpose include the
regulation of relation between employers and workers or between employers and trade unions, or
include the regulation of relations between its constituent or affiliated organisation. Further, the
definition includes a combination of employers and employers' association. 47
If, however, the combination amounts to a conspiracy it may entail criminal or tortious liability. 48
India
(C) India.--The definition of a 'trade union' in Sections 17(h) of the Trade Unions Act , 1926, is wide
enough to include a combine of employers to regulate their relation with workmen.
The position appears to be the same as in England, above.
Right of lock-out
(A) U.S.A.--Without determining the question whether as a corollary of the employee's right to strike
an employer has a corresponding right to use lock-out, the Supreme court has held that lockout per se
is not unlawful. It is unlawful where it is designed to frustrate organisational efforts or to undermine
collective bargaining by labour.49
But it would not be unlawful where it is temporarily resorted to in defence where a labour union strikes
against a member of an employers' association merely to prevent the employers to bargain with the
union on a collective basis.50
(B) England.--A lock-out prima facie constitutes a breach of contract of employment with the workers,
but it may be lawful if resorted to after giving due notice to terminate the contract as required by
statute, e.g., the Employment Protection (Consolidation) Act, 1978.
India
(C) India.--See under previous caption.
A 'lock-out' is to be distinguished from a 'closure'. A closure takes place when an employer terminates
his business finally and irrevocably, e.g., owing to financial difficulties. The closure has to be genuine
and bona fide in the sense that it should be a closure in fact and not a mere pretence of closure. 51
Lock-out, on the other hand, is the closure of the place of business and not the termination of the
business itself; it is often used by the employer as a weapon in his armoury to compel the employees
to accept his proposals just as a strike is a weapon used by the employees to compel the employer to
accept their demands.52
Lock-out can be described as the anti-thesis of a strike. Just as a strike is a weapon available to the
employees for enforcing their industrial demands, a lock-out is a weapon available to the employer to
persuade by a coercive process the employees to see his point of view and to accept his demands. In
the struggle between capital and labour, the weapon of strike is available to the labour and is often
used by it, and so is the weapon of lock-out available to the employer and can be used by him. The
use of both the weapons by the respective parties, however, be subjected to the relevant provisions of
the Act . Chapter V (I. D. Act) which deals with strikes and lock-outs, clearly brings out the anti-thesis
 492

between the two weapons and the limitation subject to which both of them must be exercised. 53 The
employer's version of a strike is, in which the employer refuses to allow workers into their workplace,
unless, they accept certain terms (Business Term). A lock-out has been defined to be the closing of a
factory or workshop by an employer, usually to bring the workmen to satisfactory terms by a
suspension of wages.54
A 'lockout' is defined in s. 2(l) of the Industrial Disputes Act , 1947 as--
"the temporary closing of a place of employment or the suspension of work, or the refusal by an
employer to continue to employ any member of persons employed by him."
Since a strike and a lock-out are treated on the same footing by the Industrial Disputes Act , it has
been held that a lock-out in a public' utility service would be illegal, if made without issuing a notice
under s. 22 of the Act.55Even for closure, permission of the Government is' now required by an
amendment of the Act in 1976, which has inserted s. 25-O in the Act.
There is no fundamental right involved in it. The right of lock-out is the creation of a statute and is to
be exercised subject to the relevant provisions of that statute. 56
Co-operative Society - effect of right to form Association
The impact of fundamental right on the one hand and the extent of restriction that could be imposed
by bye-laws of co-operative society on the other came up for consideration before the Supreme Court
in Zoroastrian Co-operative Housing Society Ltd. v. Dt. Registrar Co-operative Societies (Urban) ,57
The Co-operative Housing Society stipulated only Parsis could be members of the society and any
transfer of share in that society should also be to a Parsi. Further any transfer should have the prior
approval of a Committee. The society was initially registered under Bombay Co-operative Societies
Act , 1925, but was situated in Ahmedabad. On the formation of State of Gujarat, it was deemed to be
registered under Gujarat Co-operative Societies Act , 1961. One member of society sold a plot with
residential building to another Parsi with the consent of the Committee. The transferee then applied for
permission to demolish the old building and put up a commercial building. The society refused
permission to do so on the ground that bye-laws do not permit to put up a commercial building. The
transferee then started negotiation with another builder's association and contemplate sale of his
share to a non-Parsi. Co-operative Societies Tribunal observed that bye-laws restricting membership
only to Parsis was violative of right to property under Art.300A. The Gujarat High Court also dismissed
the writ petition on the ground that the said bye-law would be a restraint on alienation and hit by
Sections 10 of the Transfer of Property Act . The Supreme Court considered the impact of Arts.14, 15
and 19 of Constitution, but without discussing the impact of Art.300A.
The principles laid down by Supreme Court can be summarised as follows: (1) The right to form an
association under Art. 19(1)(c) necessarily implies that the persons forming the association have the
right to be associated only with those whom they voluntarily admit in the association. 58(2) Once a
person becomes a member of a co-operative society, he loses his individuality qua the society and
has no independent rights except those given to him by the statute and byelaws. 59(3) The right to form
an association is exercised by entering into a contract with others regulating the conduct vis--vis the
society. An individual submerges his right in the common right to be enjoyed by all and he is really
exercising his right of association guaranteed under Art.19(1)(c). His rights merge with the right of
society and are controlled by the Act and bye-laws of society. (4) This right raises an extremely
interesting question as to whether a person can be said to have waived his fundamental right under
Arts.14, 15 and 16 of the Constitution when he exercised his right under Art.19(1)(c). It is submitted
that it would indeed amount to a waiver. When a person agrees to become a member of society, he
agrees to abide by the bye-laws. Can he then question the bye-law on the ground of violation of
Art.14? If the society is not a 'State' under Art.12, then there is no question of violation of Art.14. In the
case of Art.15, the individual having joined the association, cannot complain of the violation of the
fundamental right on the ground of sex, religion, etc. (5) It is open to the Legislature to introduce the
provision that eliminates disqualification for membership, based on sex, religion or a particular mode
of life. But, if there is no legislative intervention, the court cannot set aside a byelaw on the ground that
it is not desirable and would be opposed to public policy. In the absence of any prohibition in the
Gujarat Co-operative Societies Act , 1961, the bye-law restricting membership only to Parsis is valid.
 493

(6) It is not open to the authorities under the Act to relieve a member of his obligation under the bye-
laws on the ground that there is discrimination on the basis of religion or sex or is violative of Part III of
the Constitution. (7) Although the Constitution prohibits any discrimination based either on religion or
sex based on State act ion, it permits a citizen to enter into a contract for his own benefit and at the
same time, incurring certain liabilities arising out of the contract. Therefore, when the bye-law that
restricts membership to Parsis had been approved under the Act, it will not be permissible for the
State Government to compel the society to amend the bye-law so as to defeat the object of formation
of the society. (8) What is in the interest of the society is primarily for the society to decide and it is not
for the outside agency. The interest of society is paramount and that interest will prevail as it is not
violative of the concerned Act and the rules.60(9) It is not open to the court to direct a person to be
admitted as a member if he is not qualified under the bye-laws on the basis that the court may
consider it to be "public policy". Public policy underlying a statute has to be construed in the context of
the provision of that statute. Consideration of public policies is applied to private contracts or
disposition in order to disable and not in order to enable. A party to a transaction cannot be relieved of
a legal disability on the ground that there is good public policy to do so. Reference is made to the
decision in,61(10) A co-operative society will not be a 'State' within the meaning of Art.12 unless it
satisfies the condition laid down in Ajay Hasia v. Khalid Mujib ,62 (11) If a society is not a 'State' within
the meaning of Art.12, it will not be possible to enforce the fundamental right under Part III of
Constitution.63
Political Parties
Central to the role of modern democracy are political parties; they provide the policies and personnel
of Government (opposition) and have other important functions as well. Although electors vote for
individuals to represent them in Parliament, the candidate will typically be chosen by a political party. It
is very rare (but not unknown) for a candidate who is not representing one of the established parties to
be elected to Parliament or for an independent to be elected. The parties also dominate appointment
to the House of Lords.
Political parties remain voluntary association in the eyes of law; bodies exercising a public function,
but governed by private law. The relationship between a political party and its members are based on
contract and the contract may be enforced in the court by an aggrieved member. 64
Political parties are a development since 1688. They rest entirely on convention or merely political
fact, though their existence was assumed by Ministers of the Crown Act, 1937 and defined the leader
of Opposition and granted him a salary.
Representative Government presupposes that the electors are free to organise themselves in political
parties and (within the limits imposed by the requirement of public order and peaceful change) to
express their views and to criticise the Government. The party system is inevitable in a democratic
country since men disagree about political ends and means. It is a convenient device to enable the
majority to have their way and the minority to have their say. Party organisation exists both in the
constituencies and in Parliament. Parties are voluntary associations subject to the general law. 65
Increasingly, however, they are becoming subject to specific legal regulation. 66
A political party is a voluntary political association of voters which seeks to gain control of the
Government by constitutional means. In a representative democracy in the modern world, political
parties have become indispensable, because it is through the parties that the voters (an unwieldly
mass under adult suffrage) may organise themselves and express their options effectively. 67'Political
party' is an organised group seeking to control the personnel and policy of Governments, it is
described as a body of men united for promoting, by their joint efforts the national interests upon some
particular principle on which they are all agreed. In modern times, it is rather a group following a
leader or leaders who desire to gain control over Governmental power (Constitutional and
Parliamentary Term). A political party is a voluntary association of voters who are desirous of
promoting a common political end, or carrying out a certain line of public policy. "A number of persons
united in opinion or act ion as distinguished from the rest of the community or association - especially
one of the parts into which a people is divided on questions of public policy. A party consisting of a
substantial number of persons having an organisation and Committee and continued to propagate its
 494

views which were different from and opposed to the views of its rival on the claims of both parties
comes within the definition.
Political parties are voluntary associations for political purposes. They are governed by their own
usages and establish their own rules. Members of such parties may form them, organise them and
dissolve them at their will. The voters constituting such party are indeed, the only body who can finally
determine between contending factions or contending organisations. The question is one essentially
political and not judicial in character. 68
JUSTICE R. FAZAL KARIM (Judge, Supreme Court of Pakistan) in his book69 has considered the
concept of political party on the basis of Pakistan Supreme Court and also of the American system. At
page 709 (Vol. 1 in his book) the learned author says, "The ordinary conception of a political party
includes a right within the framework of the Constitution to exert itself through its following and
organisation, and using all available channels of mass communication, to propagate its views in
relation to the whole complex of the administrative machine, including the Legislatures, in respect of
matters which appear to it to require attention for the amelioration of conditions generally throughout
the nation, for improvements particularly in administrative procedures and policies, as well as in the
legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself.
Muhammad Mian Nawaz Sharif v. Federation of Pakistan ,70 SAEEDUZZAMAM N. SIDDIQUI J. said
that a 'political party' is a voluntary association of persons, formed with the object of propagating a
definite political opinion/view on a matter of public importance having an ultimate aim to get into power
seat of Government through the process of election, in order to give effect to its programme].
In Benazir Bhutto v. Federation of Pakistan ,71 MUHAMMAD HALEEM CJ. said, "A political party has
its significance in the context of the political system provided by the Constitution. Our Constitution is of
the pattern of parliamentary democracy with a cabinet system based on party system as essentially it
is composed of the representatives of a party which is in majority. Bagehot called it 'a hyphen that
joins, a buckle that fastens, the executive and Legislature together'. It formulates the general policy of
the Government and is collectively responsible to the Parliament for that. Apart from this general
function of co-ordination and leadership it exercises actual executive and legislative functions.
Our Constitution envisages democracy as ethos and a way of life in which equality of status, of
opportunity, equality before law and equal protection of law obtains. It has its foundation in
representation; it is not a system of self-Government, but a system of control and limitation of
Government. A democratic party is usually identified by the manner of selection of its leaders and by
the fact that the power of the Government functionaries is checked and restrained. In a democracy,
the role of the people is to produce a Government and, therefore, the democratic method is an
institutional arrangement for arriving at political decisions in which individuals acquire the power to
decide by means of a competitive struggle for the people's vote. Fundamentally democracy rests upon
the idea of freedom.
Parliamentary Government is a Government of the party and a party Government is a vital principle of
a representative Government. The political party is a connecting link between the Executive and the
Legislature, between the Cabinet and the Parliament. It is also a connecting link between the Cabinet
and the people and between the Parliament and the people. For this reason, the political parties are
necessary and important features in a parliamentary democracy. They are important because the
group victorious at a general election becomes the Government. In a nutshell a parliamentary
democracy depends for its success on the organization of political parties and its disciplined support
of parliamentary majority is sine qua non of Cabinet Government composed of the Prime Minister and
the Ministers from the majority party. They thus provide leadership to public offices through the
elections. They are now necessary part of a democratic Government. Rival parties make elections
meaningful by giving voters a choice among candidates who represent different interests and points of
view. The party or parties that are out of power serve as a "loyal opposition" as understood in
parliamentary democracy. That is, they criticize policies and act ions of the party in power. In this way
the party in power is called on to justify its actions and is made responsible to the people.
In American system, "a political party is a voluntary association, formed of the free will and
unrestrained choice of those who compose it. No man is compelled by law to become a member of a
 495

political party, or after having become such to remain a member. He may join such a party for
whatever reason seems good to him, and may quit the party for any cause, or without cause. It has
been said that political parties originated in the United States with the adoption of the Federal
Constitution".
Political parties are institutions of very great importance under our form of Government. They are, in
fact, the effective instrumentalities by which the will of the people may be made vocal, and the
enactment of laws in accordance therewith made possible. So potent have they become in
determining the measures and in administering the affairs of Government that they are now regarded
as inseparable from, if not essential to, a republican form of Government.
The people have an inherent right to form, organize and operate political parties and to reorganize an
old political party. This is included in the right of suffrage. It has been characterised as an inalienable
right guaranteed by the Constitution.
About 100 years back, EDMUND BURKE in his book,72 defined the political party as a body of men
united, for promoting, by their joint endeavours the national interest, upon some particular principles in
which they are all agreed. Parties are defined in terms of commonly held ideas, values or stands on
national and social issues. A political party is distinguished from other political organizations by its
concentration on the contesting of election." Under a two-party system, power rolls on from one party
to another, in a smooth process. Just as the party in power is defeated in the representative body or
the Legislature, the Opposition steps in and forms the Government. Under a multiple party system, as
in India, the transition would not be so easy. Even though some opposition parties may combine to
bring about the downfall of the party in power, the formation of an alternative Government may not be
an easy affair, because the parties in opposition, who differ in their ideologies from one pole to the
other73, and are unequal in their strength, may not come to an agreement as to the division of the
'spoils' after the fall of the existing Government.
It is through the party system that the individual can realise that the State exists for him. The policies
which a Government is supposed to carry out are initially formulated in the party organisation and if an
individual is dissatisfied with the performance of a party, he is (but for party propaganda and
discipline) free to move on to another party. Though the immediate responsibility of the Government is
to the representatives of the electorate in the Legislature, the ultimate responsibility is to the
electorate, as organised through the parties.
The theoretical independence of an individual voter, as outlined above, is however curtailed and
controlled by the working of the 'voluntary' association, namely, the party, which has an organisation
which controls the elections, educates its members in the policies and professions of the party and
exercises discipline over the members, e.g., to prevent defection. Bigger the party, heavier is such
control over individual voters.
On the other hand, while the legitimacy of a political party has been established, the rights of
independent candidates and their voters or their association or that of 'minor' political parties 74 cannot
be jeopardised.
A statute requiring independent candidates to file their nomination petitions in mid-March in order to
qualify for the ballot in the month of November election was invalidated. 75 In Tashjean v. Republican
Party ,76 court invalidated a statute prohibiting independents from voting in party primaries. In EU v.
San Francisco County Democratic Central Committee ,77 again court invalidated a statute prohibiting
political parties from endorsing, supporting or opposing candidates in primary election. In Burdick v.
Takushi ,78 court upheld a statute prohibiting write-in-voting. A ban on multi-party or 'fushian'
candidates was upheld in Timmons v. Twin Cities Area New Party ,79 In California Democratic Party v.
Jones ,80 the Court invalidated a State law permitting individuals who are not members of a political
party to vote in that party's primary.
U.S.A.
It is natural that the huge machinery wielded by a modern party will bring about abuses which would
call for control by the State in its turn, in order to protect society from possible anti-social act ivities.
 496

Some of such abuses would be evident from the following observation of JACKSON, J. of the
American Supreme Court:81
"Parties, whether in office or out, are often irresponsible in their use and abuse of freedoms of speech
and press. They all make scapegoats of unpopular persons or classes and make promises of dubious
sincerity or feasibility in order to win votes. All parties, when in opposition, strive to discredit and
embarrass the Government of the day by spreading exaggerations and untruths and by inciting
prejudiced or un-reasoning discontent, not even hesitating to injure the Nation's prestige among the
family of nations."
Instantly the question arises--what steps can the State constitutionally take against an association or
its members once the Government comes to know that the object of such association is to overthrow
the Government by force. The answer which is given by American decisions to this question is
interesting inasmuch as they show a serious endeavour to reconcile the guaranteed rights of free
speech, immunity against self-incrimination and the like and the need for collective security and order.
The following propositions appear to have been arrived at--

19.  The State cannot punish an individual or an association merely for its beliefs
or even for advocacy of such beliefs unless it is 'action-inciting advocacy' 82 which means
that such advocacy is directed "to inciting or producing imminent lawless action"; 83 or
"the advocacy and teaching of concrete act ion for the forcible overthrow of the
Government, and not of principles divorced from action". 84
22I.  In the absence of any such imminent social danger, any State act ion which
requires registration of an association, and compels it to disclose its membership would
violate the freedom of association85 guaranteed to its members (through the First
Amendment). But where the covert operation of an association involved imminent
danger, the State could legitimately ask for such registration and disclosure, of
membership, in order to cope with the anticipated danger. 86 Refusal to sign such
registration statement may be made an offence, provided the guilt rests not merely on
association with the party but on association with "an intimate knowledge of the Party's
working"87i.e., its violent plan of action. Where a party has been outlawed so that mere
membership thereof would be punishable, a refusal to register cannot be made an
offence, because that would deny the person so refusing of his immunity against self-
incrimination'.88
The Subversive Act ivities Act, 1950 created a complex regulatory scheme requiring all
"Communist Act ion Organisation" to register with the Attorney-General and to disclose a
wide range of information including membership lists. The Act also established the
Subversive Act ivities Control Board to administer the scheme and provided that once a
board order to regulate becomes final, various sanctions would automatically be
imposed on the organisation and its members.89
14II.  So far as the membership of such a Party is concerned, it follows from the
above that the law make it an offence "to assist in the formation or participate in the
management or contribute to the support of any subversive organisation, knowing the
same to be such"90 but it would be unconstitutional if the statute is vague or uncertain. 91
But mere membership cannot be penalised where there is no evidence of advocacy of
an 'immediate overthrow of the Government by violent action', as distinguished from the
preaching of 'the inevitability of eventual forcible overthrow'.92
Buckley v. Valco ,93involved a challenge to portions of Federal Election Campaign Act 1974 - a curb
perceived abuses of electoral process to maintain records of contribution and to disclose the federal
regulators the name, address and in the case of larger contributors, the occupation of each
contributor. The court treated the contribution and expenditure of money for political purposes as a
form of speech, so these forced disclosure requirements were alleged to infringe freedom of
association. The court upheld the requirement stating that "significant encroachments on First
Amendment rights of the sort that compelled disclosures imposes" must be justified by exacting
scrutiny that involves proof of a substantial relation between the governmental interest asserted and
 497

the information required to be disclosed and more than a "mere showing of some legitimate
governmental interests that were sufficiently important to meet the standard (1) disclosure provides
the electorate with information about the source of campaign funding in order to aid the voters in their
choice; (2) disclosure deters actual corruption and avoids the appearance of corruption by public
exposure; and (3) disclosure is an essential means of gathering data necessary to detect violation of
contribution limits which the court held independently. Court concluded that disclosure requirements
were of direct service to "substantial Government interest". At the same time, court invalidated the
limits for expenditure on campaigning expenditure from personal or family resources and expenditure
limitation and held the same as unconstitutional and violative of First Amendment. 94
India
Though the Indian Constitution has adopted the Parliamentary or Cabinet system of Government (Art
s. 74-75, 163-64) from England where it is founded on the Party system, there is no mention at all of a
Party in the Constitution, and all provisions as to the qualifications and disqualifications of Ministers
(e.g. Art s. 75(3); 164(4)) or of members (Arts. 80, 81, 84; 101-04, 170-71; 173; 190-193) refer to the
members individually and not as members of any political party.
There is, however, no doubt, that a political party is a voluntary association for a lawful purpose, since
it is essential for the operation of a democracy95 (see ante); and would therefore come under the
protection of Art. 19(1)(c), Hence, any restriction which the State seeks to impose upon a political
party must, in order to be valid, be a reasonable restriction within the purview of Cl. (4) of Art. 19. (See
below).
A political party functions on the strength of shared beliefs. Its own political stability and social utility
depend on such shared beliefs and concerted act ion of its Members in furtherance of those
commonly held principles. Any freedom of its members to vote as they please independently of the
political party's declared policy will not only embarrass its public image and popularity, but also
undermine public confidence in it which, in the ultimate analysis, is its source of sustenance - nay,
indeed, its very survival. Intra-party debates are of course a different thing. But a public image of
disparate stands by the members of the same political party is not looked upon, in political tradition, as
a desirable state of things. GRIFFITH AND RYLE96 has said: "Loyalty to the party is the norm, being
based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for
members to accept the opinion of their leaders and spokesman a wide variety of matters on which
those members have no specialist knowledge. Generally members will accept majority decisions in
the party, even when they disagree. It is understandable therefore that a member who rejects the
party whip even on a single occasion will attract attention and more criticism than sympathy. To
abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote
against party is disloyalty. To join with others in abstention or voting with other side smacks of
conspiracy".97
Though the Constitution does not mention a political party, it is mentioned in the Election Symbols
(Reservation and Allotment) Order, 1968, issued by the Election Commission in exercise of the
powers conferred by Rules 5 and 10 of the Conduct of Election Rules, 1961 (made under the Bengal
Districts Act , 1836. In this Order--
A political party is defined in Para 2(h) [as amended by Notification No. O.N. 56(E), dt. 15-6-1989] as
follows--

(h) "political party" means an association or body of individual citizens of India registered with the Commission
as a political party under Sections 29A of the Bengal Districts Act , 1836.

Supreme Court in Desiya Murpokku Dravida Kazhagam v. Election Commission of India ,98 defined a
political party thus:- "A political party is nothing but an association of individuals pursuing certain
shared beliefs. Article 19(1)(c) confers a fundamental right to all citizen to form an association or
associate with organisation of their choice. Article19(1(a) confers a fundamental right on the citizens
freedom of speech and expression. The amplitude of the right takes within its sweep the right to
 498

believe and propagate ideas whether they are cultural, political or personal. Discussion and debate
are parts of speech. In Romesh Thappar v. State of Madras ,99 court said: "....without free political
discussion no public education, so essential for the proper functioning of the processes of popular
Government is possible. All the citizens have a fundamental right to associate for the advancement of
political beliefs and opinion held by them and can either form or join a political party of their choice.
Political parties are, no doubt, not citizens, but their members are generally citizens. Therefore, any
restriction imposed on political parties would directly affect the fundamental rights of its members. 100
As stated earlier, the Indian Constitution made no reference to political parties prior to the Fifty-
Second Constitutional Amendment Act, 1985 by which the Tenth Schedule was inserted in the
Constitution. The Tenth Schedule recognises the existence of political parties in this country and the
practice of political parties setting up candidates for the election to either of the Houses of Parliament
or the State Legislature. However, the Election Commission recognised from its inception, the
existence of political parties and the practice of political parties setting up candidates at election to any
one of the Houses created by the Constitution.
The procedure and conditions for registration of a party is given in Para 3 of the Order.
The advantages of registration are provided in paras 7 to 12 as regards the choice and allotment of
symbols at an election held under the Constitution. Owing to the vast majority of the electorate and
their massive illiteracy, symbols to assist the voters in marking their choice on the ballot paper, have
come to play an indispensable part in the electoral system of India. 101 This choice of symbols is
regulated by the Election Commission,102 in exercise of its powers under the Symbols Order, 1968
(mentioned above), as amongst registered and 'recognized' Parties. The Commission's decision of
any dispute as to the 'recognition' of Parties and the allotment of symbols to them has the finality of
the decision of a Tribunal (para. 42)103, subject to judicial review, e.g., on the ground of ultra vires
(para. 56),104 or mala fides (para s. 10-11);105 or arbitrariness (para. 10).106
What is a political party and its concept is considered earlier. But there is no comprehensive law
regarding the political parties till date. A democratic constitution has been run by political parties which
do not function democratically. In 1980, the then Chief Election Commissioner Mr. S.L. Shakhdhar
said, "Political parties make strong demands for the conduct of free and fair elections to legislative
bodies, but choose to ignore the application of the same principles when it comes to the functioning of
their own party organs. ... The voice of the majority does not find expression in important decision
making process, thereby creating fissures in these organs and eventually leading to splits". He
suggested for an early parliamentary legislation making it obligatory on the part of every political
organisation to register their body and regulate their functioning by laying down broad outlines and
norms.107 He listed three major defects - (1) Even the observance of the basic provisions of the
Constitution of the party is absent. (2) Failure to hold organisational election for years. (3) Lack of
accountability to the highest organ consisting of the general body of numbers.
Supreme Court had occasion to consider how political parties, are flouting the law of land by not filing
income-tax returns as is expected of it and gave direction to Government of India to investigate into
the matter.108
In the report of the National Commission to Review the working of the Constitution, submitted on
31.3.2002 headed by CHIEF JUSTICE M.N. VENKITACHALLIAH of our Supreme Court has reiterated
the necessity for framing a comprehensive law for political parties. The Commission has
recommended that legislation must be named as "Political Parties (Registration and Regulation) Act
regulating the registration and functioning of political parties or alliances of parties in India. The
proposed legislation should provide for compulsory registration for every political party or "pre-poll
alliance". It should lay down conditions for the constitution of a political party or alliance and for
registration, recognition, de-registration and de-recognition. The Commission recommends that every
political party or alliance should in its Memorandum of Association, Rules and Regulation provide for
its doors being open to all citizens irrespective of any distinction of caste, community or the like. It
should swear allegiance to the provisions of the Constitution, and to the sovereignty and integrity of
the nation, regular election at an interval of three years at its various levels of the party,
reservation/representation of atleast 30% of its organisational position at the various levels and the
 499

same percentage of party tickets for Parliamentary and State Legislature seats to women. Failure to
do so should invite the penalty of the party losing recognition.
The law should make it compulsory for the parties to maintain accounts of the receipt of the funds and
expenditure in a systematic and regular way. The form of accounts of receipt and expenditure and
declaration about the sources of funds may be prescribed by an independent body of Accounts &
Audit experts created under the proposed Act . The accounts should be compulsorily audited by the
same independent body created under the legislation which should also prepare a report on the
financial status of the political party which along with the audited accounts should be open and
available to the public for study and inspection.
The Commission also recommended the enactment of appropriate provision making it compulsory for
the political parties requiring their candidates to declare their assets and liabilities at the time of filing
their nomination before the returning officer for election to any office at any level of Government. The
authority for registration, de-registration, recognition and de-recognition of parties and for appointing
the body of auditors should be the Election Commission whose decision should be final, subject to
review by the Supreme Court on point of law.
The Commission has also recommended that Election Commission should progressively increase the
threshold criteria for eligibility for recognition, so that the proliferation of smaller political parties is
discouraged. Only parties or a pre-poll alliance of political parties registered as national parties or
alliances with the Election Commission be allotted a common symbol to contest election for Lok
Sabha, State parties may be allotted symbols to contest election for State Legislatures and the
Council of States (Rajya Sabha).
Commission has also suggested that in a situation where no single party or pre-poll alliance of parties
succeeds in securing a clear majority in the Lok Sabha after election, instead of involving the highest
office of the President in the controversies of finding out who could command the confidence of the
House, it should be best to leave it to the House itself to determine majority support to a leader. It
would remove uncertainty and also obviate the need for the President asking his appointee as Prime
Minister to seek a vote of confidence within a certain number of days.
The Commission recommended that in a situation where no single party or pre-poll alliance of parties
succeeds in securing a clear majority in the Lok Sabha after election, the Rules of Procedure in Lok
Sabha may provide for the election of the Leader of the House by the Lok Sabha along with election of
the Speaker and in the like manner, the Leader may then be appointed as Prime Minister. The same
procedure may be followed for the office of Chief Minister in the State concerned.
The Commission also recommended an amendment in the Rules of Procedure for adoption of a
system of constructive vote of no-confidence. For a motion of non-confidence to be brought against
the Government, atleast 20% of the total number of members of the home should give notice. Also the
motion should be accompanied by a proposal of alternative Leader to be voted simultaneously.
Commission has recommended that political parties shall not sponsor any candidate who has a
criminal background i.e., who has been convicted for any offence or if the court has framed criminal
charges against him.
Regarding funding of political parties, various suggestions have been made. 1
After submitting the report, Supreme Court has declared that voters are entitled to know the
antecedents of a candidate and also about his assets and financial position at the time of filing
nomination. The candidate has to disclose to the Returning Officer as to whether he has been
convicted earlier for any offence and the punishment imposed and all details concerning the same. He
has also to disclose the asset held by him and his spouse with detailed valuation, etc.2
Though the Commission submitted its recommendation on 31.3.2002, no legislation was passed so
far. Political parties are now following the decision of Supreme Court and also directives issued by
Election Commission from time to time.
CLAUSE (4) : RESTRICTIONS UPON THE FREEDOM OF ASSOCIATION
 500

OTHER CONSTITUTIONS
U.S.A.
(A) U.S.A.-Needless to state, the freedom of association, like any of the other fundamental rights, is
not absolute, and may be subjected to such restrictions as may be, required by 'compelling' 3 interests
of the public.
In Gompers v. Bucks Stove & Range Co.,4 the Supreme Court observed.
"Society itself is an organization and does not object to organizations for social, religious and all legal
purposes. The law therefore recognizes the right of working men to unite and invite others to join their
ranks thereby making available the strength, influence and power that come from such associations.
"...But this power when unlawfully used against one cannot be met except by his purchasing peace at
the cost of submitting to terms which involve the sacrifice of rights protected by the constitution or by
standing on such rights and appealing to the preventive powers of a court of equity. When such
appeal is made, it is the duty of the Government to protect the one against the many as well as the
many against the one."5
Thus,
I. The State may impose restrictions upon the freedom of association in the interests of public peace
or safety6 and the restrictions may be limited to particular types of societies from which the evil is
feared.7
Such collective interest calling for a restriction of the right of association may be economic, e.g., to
prohibit combinations in restraint of trade.8(See under Art. 19(1) (g), post); or to prevent strike
interfering with essential production.9
It has also been settled that an association has a right of privacy not to disclose its membership and
that the State cannot compel it to disclose its membership except on permissible grounds of social
interest.10 Thus,

70a)  A Municipal Authority cannot compel an association to disclose its

membership in exercise of its powers under a statute authorising the imposition of an
occupation licence tax where a reasonable connection between the taxing power and
the disclosure of membership was not, established. It was contended on behalf of the
Municipality that the information was required to ascertain whether the association in
question was a 'charitable organization' which was exempt from the tax. But this
contention was rejected on the ground that the Petitioner association had never claimed
such exemption.11 A State law requiring a corporation registered in another State, to
disclose its membership was also annulled where the only justification alleged was to
determine whether the corporation violated the foreign corporation registration statute of
the State in which it was doing business.12 Similarly, the Court annulled a statute which
required a person, as a condition of employment in a State educational institution to file,
annually, an affidavit listing every organisation to which he had belonged during the
preceding 5 years, on the ground that though the State had a legitimate interest to
inquire into the fitness of its teachers, the statute went "far beyond what might be
justified in the exercise of the State's legitimate enquiry." 13
73b)  On the other hand, a statute, requiring such disclosure was upheld where it
was directed against an association indulging in unlawful activities and violence. 14
In the United States, the question of permissible restrictions upon the freedom of association has
assumed importance in recent years owing to the emergence of what is known as the doctrine of 'guilt
by association' and the 'criticism it has evoked. The traditional, principle in this sphere is that a person
may be penalised only for his personal guilt and not for 'guilt by association', i.e., merely for his
'affiliation' with any particular socie%15'however much we abhor the ideas which they advocate. 16 In
Elfbrandt v. Russell ,17 it was observed: "Those who join an organisation, but do not share its unlawful
purposes and who do not participate in its unlawful act ivities surely pose no threat. A law which
 501

applies to membership without specific intent to further illegal aims of the organisation infringes
unnecessarily on protected freedom. It rests on the doctrine of "guilt by association" which has no
place here".
In Seales v. US ,18while dealing with McCarran Act, 1950, the Court said: "The clause in the Act does
not make criminal all association with an organisation which has been shown to engage in illegal
advocacy. There must be clear proof that a defendant "specifically intends to accomplish the aim of
the organisation by resort to violence....a person may be foolish, deluded or perhaps merely optimistic;
but he is not by this statute made a criminal". In that case, the Court made a distinction between an
active and passive member of an organisation.19 In Noto v. US ,20 the Court said: "The mere abstract
teaching of a communist theory, including the teaching of moral propriety or even moral necessity for a
resort to force and violence is not the same as preparing a group for violent act ion and steeling it to
such action. There must be some substantial direct or circumstantial evidence of a call to violence
now or in the future which is both sufficiently strong and sufficiently pervasive to lend colour to the
otherwise ambiguous theoretical material regarding Communist Party teaching.
But this traditional refusal of the Supreme Court to recognise 'guilt by association' has been departed
from in some cases21 which have upheld the anti-Communist legislations but the latest swing is
against such legislation and the latest position appears to be that a law would be unconstitutional if it
proscribes "mere knowing membership without any showing of specific intent to further the unlawful
aims of the Communist Party."22
The culmination of the doctrine of guilt by association is to be found in the Internal Security Act
(popularly known as the Mc Carran Act), 1950, which penalises (knowing) association with
communistic organizations.
The scope and object of the legislation would be 'clear from the following extracts from its Preamble--
"There exists a world Communist movements which, in its origins, its development, and its present
practice, is a world-wide revolutionary movement whose purpose it is...to establish a Communist
totalitarian dictatorship in the countries throughout the world through the medium of a world-wide
Communist organisation...".
All 'Communist-action organisations' and 'Communist-front organisations' were required, under pain of
penalty, to register themselves under the Act, if the Communist Control Board so orders. The
constitutionality of this provision of the Act was held valid and the Communist Party was held to be a
'Communist-action organisation' within the purview of this Act . 23 But in the dissenting judgment by
JUSTICE HUGO BLACK, it was observed: "The banning of an association because it advocates
hatred ideas - whether that association be called a political party or not - marks a fateful moment in
the history of a free country. That moment seems to have arrived for this country. ... This whole Act
with its pain and penalties embarks this country for the first time, on the dangerous adventure of
outlawing groups that preach doctrines nearly all Americans detest. When the practice of outlawing
parties and various political groups, no one can say where it will end. In most countries such a
practice once begun ends with a one-party Government". But the statute was nevertheless rendered
infructuous by subsequent decisions to the effect that to pushish a person or persons for refusing to
register under the Act would violate the guarantee against compulsory self-incrimination. 24 In Joint-
Anti-Fascist Refugee Committee v. Mc.Grath ,25 the Court said: "In days of great tension when feelings
run high, it is a temptation to take shortcuts by borrowing from the totalitarian technique of our
opponents. But when we do, we set in motion a subversive influence of our own design that destroys
us from within".
Other penal provisions of the Act were also struck down on the ground that they seek to establish 'guilt
by association' alone.26
As a result of these reverses, Congress amended the Act in 1967, substituting the compulsory
registration provision by providing that the Control Board would hear cases referred to it by the
Attorney-General and that if, after such hearing, a person was found to be a Communist, his name
would be placed on a public register.
 502

But under another provision of the Act, knowing and act ive membership of the Communist Party is
punishable.27 This provision has been held to be constitutional on, the ground that it does not punish
membership of an association as such, but active membership with knowledge that it advocated the
overthrow of Government by force. The situation would be different if the association was merely
engaged in 'the abstract teaching of Communist theory. 28 In this case, the Court reversed an earlier
decision in Whitney v. California ,29 the Court held: "...the constitutional guarantee of free speech and
free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation
except when such advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such act ion.
State could not punish a person making a lawful speech simply because the speech was sponsored
by a subversive organisation.30
In US v. Rebel ,31 the Supreme Court held that a member of a communist organisation could not be
regarded as doing an unlawful act by merely obtaining employment in a defence factory.
The Communist Control Act of 1954 goes further and declares that "the Communist Party of the
United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to
overthrow the Government of the United States" and that--
"Its role as the agency of a hostile foreign power renders its existence a clear present and continuing
danger to the security of the United States."
It also contains a legislative finding that the Communist Party is a 'Communist-action organisation'
within the meaning of the Internal Security Act, 1950, and provides that 'knowing' membership of the
Communist Party is subject to all the provisions and penalties of that Act . The constitutionality of this
Act has not so far been considered by the Supreme Court.
But a desire to mitigate the rigours of the doctrine of guilt by association is, again, to be noticed in later
cases which held, in a different context, that--

71a)  From the mere fact of membership of a Party, it cannot be automatically

inferred that all its members shared its evil purposes or participated in its illegal
conduct.32
74b)  A person's membership of the Communist Party fifteen years back does not
per se warrant the inference that he does not at present possess a good moral character
for being admitted into the legal profession.
49c)  Even a discretionary thing like a passport cannot be denied to a citizen
merely because of his beliefs or association,33 apart from any unlawful conduct.34
18d)  The final blow has come from Brandenburg,35 holding that mere advocacy of
violence or overthrow of Government would not be punishable unless it is likely to incite
the hearers to violent act ion.36
II. The State may regulate the times, place and manner of an election, but not so as to abridge the
freedom of political association.37
INDIA
Grounds of Restriction
From a review of all the written Constitutions, referring to the above right, it becomes evident that the
right of association of the citizens is subject to control by laws in the public interest, and 'that there is
no right of association having for its object or conduct anything which is prohibited by the laws in the
interests of public order, and the like. The restrictions imposed by the law may be either punitive or
preventive. The law may also lay down certain conditions or formalities, such as registration,
prescribing working hours and the like.
Clause (4) of our Constitution empowers the State to make reasonable restrictions upon the above
right on grounds of--(a) sovereignty and integrity of the State; (b) public order; (c) morality 38.
 503

A restriction which has no proximate relationship with any of these grounds must be invalid, 39 not being
protected under Cl. (4), e.g., where the law penalises mere participation of or meeting of a party 40 or
an association having for its object bringing about a change in the Government, without resort to
force,41 or prohibits an association from publishing a periodical without previous permission of
Government.
In State of Kerala v. Raneef ,42 the Supreme Court followed an earlier decision of the Supreme Court
of United States in Elfbrandt v. Russell ,43 which rejected the doctrine of guilt by association. Mere
membership of a banned organisation will not incriminate a person unless he resorts to violence or
incites people to violence or does an act intended to create disorder or disturbance of public peace by
resort to violence.44 Mere membership of a banned organisation will not make a person criminal unless
he resorts to violence or incites people to violence or creates public disorder by violence or incitement
to violence.45
A conspiracy is an agreement to do an unlawful act or to do a lawful act by unlawful means. But where
an agreement is to do a lawful act by unlawful means, no criminal liability arises under Indian law
unless an overt act is done in pursuance of such agreement. 46
'Public order'
This clause, has the same meaning as in Cl. (2), and is, thus, synonymous with public peace, safety,
and tranquillity.47
In the absence of any specific ground relating to 'security of the State', see ante of this Commentary,
the Author observed.
"Since 'security of the State' is separately mentioned in Cl (2), it has been held 48 that the omission of
'security of State' in Cl. (4) would, lead to the conclusion that so long as any of its activities do not tend
to lead to a breach of peace, or a danger the freedom of association cannot be curtailed in the
interests of the security of the State, unless the restriction can be sustained as necessary in the
interests of 'public order', which means the interests of 'public peace, safety and tranquillity'. If this
interpretation be unwelcome to the Government in so far as it would prevent the State from the
imposing restrictions upon an association friendly to an enemy State to public safety it would be
necessary to amend Cl. (4) to insert 'security of State."
This gap was sought to be filled up by inserting Art. 31D [by the Constitution (42nd Amendment) Act,
1976], but it has been repealed by the Constitution (43rd Amendment) Act, 1978. 49
Existing laws.--The existing law of India relating to associations and unions broadly follows the lines of
English law. Thus:

48i)  There is a group of statutes which regulate the formation [see under List I,
Entries 43-44; List II, Entry 34, post], organization and working of particular associations,
in the public interest, e.g. Co-operative Societies Act (II of 1912), Red Cross Society
Act (XV of 1920); Religious Societies Act (I of 1889), Societies Registration Act (XI of
1860); Universities Act (VIII of 1904); Trade Unions Act (XVI of 1926); Partnership Act ,
1932. See also the Bombay Industrial Relations Act, 1946 , reviewed in Kulkarni v.
State of Bombay 50 (post).
46ii)  Of restrictive laws, we may mention--
22. Section 120A of the India Penal Code penalises criminal conspiracy, which
means an agreement between two or more persons to do or cause to be done,
(a) an illegal act ; (b) an act which is not itself illegal means, followed by an overt
act, pursuance of such agreement.
22. The Indian Criminal Law Amendment Act (XIV of 1908) has for its object
the prohibition of 'associations dangerous to the public peace'. An 'association' in
this Act is defined as 'any combination or body of persons, whether the same be
known by any distinctive name or not' and an 'unlawful association' means an
association which encourages or aids persons to commit act s of violence or
intimidation or of which the members habitually commit such acts, or which has
 504

been declared to be unlawful by the State Government under the powers hereby
conferred'.51 If the State Government is of opinion that any association interferes
or has for its object interference (i) with the administration of the law, or (ii) with
the maintenance of law and order, or (iii) that, it constitutes a danger to the public
peace, the State Government may declare such association to be unlawful. Act s
done under the Act cannot be questioned by any Court, save as provided in the
Act itself. It has been held that this power to restrict the right of association
'without a hearing' is an unreasonable restriction.52
13. The provisions of the Indian Trade Unions Act (XVI of 1926) are similar to
those of the English Trade Unions Act, 1906. The Industrial Disputes Act (XIV of
1947) has declared illegal strikes and Lockouts, if they are in contravention of the
provisions of this Act, which aims at settling industrial disputes by conciliation and
adjudication.

The Unlawful Activities (Prevention) Act, 1967 authorises the Central Government to declare by
notification in Official Gazette an association as unlawful on certain grounds mentioned in s.2 (f) of the
Act.
In the wake of demolition of Babri Masjid at Ayodhya, Government of India issued notification under
the Act on 10.12.1992 declaring following bodies as unlawful for two years. (a) Vishwa Hindu Parishd
(VHP) ; (b) Rashtriya Swayam Sevak Sangh (RSS) ; (c) Bajrang Dal; (d) Islamik Sevak Sangh and (e)
Jamaat-e-Islami. The tribunal appointed under the Act upheld the ban against VHP, but quashed the
same against RSS & Bajrang Dal. The ban against Jamaat-e-Islami, though upheld by tribunal, an
appeal from the decision of tribunal was set aside. The Supreme Court quashed the ban order. 53
The ban against VHP came to an end in December 1994. But the Government again declared VHP as
unlawful. The ban was negatived by the tribunal on the ground that the declaration was issued on
"extraneous consideration" and hence it is vitiated. The tribunal ruled that the declaration was issued
for collateral purpose and not for the purpose of maintaining peace and tranquility in society and the
Government has taken into account which it ought not to have taken into consideration. 54Another
legislation which relates to restriction on freedom of association is Terrorist and Disruptive Activities
(Prevention) Act, 1989.55 Mere membership in a terrorist organisation is itself not sufficient to make the
member a criminal.56
Legislation by Parliament
The Unlawful Activities (Prevention) Act, 1967, empowers the Central Government to declare unlawful
any association which in the opinion of the Government is advocating or inciting the cession or
secession of any part of Indian territory, and to prohibit the payment of funds to any such banned
organisation. Imposition of ban on an association with immediate effect without giving any opportunity
of hearing to the affected association violates Art. 19(1)(c) unless covered by Art. 19(4). In such cases,
it is for the Government to explain the reason for immediacy by bringing it within the exception to Art.
19(4).57
The Companies Act , 1956,58replaces the Act of 1912.
Reasonableness of Restrictions
It has already been explained that the reasonableness of a restriction has to be tested from the
substantive as well as procedural standpoints.
(A) PROCEDURAL
As has been pointed out earlier (see Art. 19(2)-(6)), in this sphere, the Supreme Court has postulated
judicial review to be an essential condition of reasonableness of a law taking away the right, in the
absence of exceptional circumstances. In State of Madras v. Row ,59 the Court observed:
"The fundamental right to form associations or unions guaranteed by Art. 19(1) has such a wide and
varied scope for its exercise and its curtailment is fraught, with such potential reactions in the
 505

religious, political and economic, fields, that the vesting of the authority in the executive Government
to impose restrictions on such right without allowing the grounds of such imposition, both in their
factual and legal aspects to be duly tested in a judicial enquiry, is a strong element which should be
taken into account judging the reasonableness of restrictions imposed on the fundamental right under
Art. 19(1)(c)."60
Sections 15(2)(b) of the Indian Criminal law Amendment Act (XIV of 1908), as amended by Madras
Act XI of 1950, authorised the State Government to declare any association on its subjective
satisfaction that such association constitutes a danger to the public peace etc., by issuing a
notification published in the Official Gazette. There was no provision for service of the notice upon the
members of the association which was the subject-matter of the notification nor was any opportunity to
be given to them for showing cause against the declaration. There was provision for reference by the
Government to an Advisory Board of any representation that might be made by any such associations,
but there was no provision for appearance of the aggrieved persons before the Board and no
obligation on the part of the Government to suspend the penal consequences of the declaration
pending consideration of the representation by the Board.
The Supreme Court held the provision as an unreasonable restriction upon the right conferred by Art.
19(1)(c) on the grounds; (i) The imposition of penal consequences after declaring an association as
unlawful on the subjective satisfaction of the Government without providing for adequate
communication of such declaration to the association and its members, must be regarded as an
unreasonable restriction, in the absence of any emergent conditions justifying such a course, (ii) Nor
can the summary and one-sided review by an Advisory Board be regarded as a reasonable substitute
for judicial inquiry to override the basic freedom of association in the absence of exceptional
circumstances.61
A law which does not provide for a judicial review or precludes such review against an administrative
order declaring an association unlawful must, therefore, be held to be an unreasonable restriction
upon the freedom of association.62 In State of Madras v. V.G. Row ,63 the Madras Legislature passed a
law which empowered the State Government to declare by notification in the Official Gazette an
association unlawful on the ground that it constituted a danger to public peace or interfered with the
maintenance of public order was challenged on the ground that it is violative of Art.19(1)(c). The
impugned law required the Government notification declaring an association unlawful to specify the
grounds for the act ion and give reasonable period to make a representation. Provision was also made
for an Advisory Board before which the Government was to place the notification and the
representation. The Advisory Board after considering the material was to submit its report to the State
Government. If the Advisory Board found that there was no sufficient ground for declaring the
association as unlawful, the Government was required to cancel the notification. The court held that
the restriction was not reasonable because the law had made no provision for judicial review against
the order of the Government and, therefore, factual existence of the grounds was not a justiciable
issue. Existence of an Advisory Board could not be substituted for judicial inquiry. Another ground for
holding the restriction as unreasonable was that there was no provision for adequate communication
of the Government's notification under s. 15(2)(b) to the association and its members or office bearers.
The notification in the official gazette, even though is of great value, it may not reach the members of
the association.
A provision in the law requiring reservation under Art.15(4) for weaker section of society was held to
be a reasonable restriction under Art.19(1)(c).64 A law that restricts the term of office of the office
bearers of a registered society to six years was upheld as imposing reasonable restriction on the right
to make association.65
An authorised restriction saved by Art. 19(4) on the freedom conferred by Art. 19(1)(c) has to be
reasonable. Under the Unlawful Activities (Prevention) Act, 1967, a Tribunal is constituted to
adjudicate on the question whether the association is unlawful or not. Adjudication is made after
issuing a show cause notice to the association and evidence is taken that sufficient cause exists for
declaring the association as unlawful. Judicial procedure implies a fair procedure to prevent vitiating
element of arbitrariness. What is fair procedure in a given case, would depend on the materials
constituting the factual foundation of the notification and the manner in which the Tribunal can assess
 506

its truth. The minimum requirement of natural justice must be satisfied to make the adjudication
meaningful. The requirement of natural justice must be tailored to safeguard public interest which
must always outweigh every lesser interest. Subject to the non-disclosure of information which the
Central Government considers to be against the public interest to disclose, all information and
evidence relied on by the Central Government to support the declaration made by it of an association
to be unlawful, has to be disclosed to the association to answer the show cause. Subject to the
requirement of public interest, the ordinary rules of evidence and requirement of natural justice must
be followed by the Tribunal in making the adjudication.
Regarding sensitive information which is not disclosed to the association in view of public interest, the
Tribunal should look into the same for the purpose of assessing the credibility of the information and
satisfying itself that it can safely act on the same. For the purpose of such satisfaction, the Tribunal
may devise its own suitable procedure by maintaining confidentiality and source.
Where no evidence is adduced before the Tribunal and the Tribunal also did not device any procedure
to satisfy itself about the credibility of sensitive information, and the association filed affidavit denying
the allegation of being "an unlawful association" and also examined witnesses in support, of its case,
Tribunal cannot confirm the notification and declare it as 'unlawful'. 66

5B)  SUBSTANTIVE
10.  There cannot be any restriction on the exercise of such a right which
consists in a previous restraint on such exercise and which is in the nature of an
administrative censorship.67
Thus, it is an unreasonable restriction to compel employees to obtain permission of the
authorities before forming unions and to prohibit them from becoming members of union
not constituted in accordance with the orders of Government, 68 or an association not
recognised by Government.69 In this cases, it was observed that even though
Government, as employer might choose to recognise one association only as
representative of a particular class of employee, it could not prevent the employees from
becoming members of other associations which were lawful nor make the previous
permission of Government a condition precedent for the exercise of the employees' right
to become a member of an association.
14.  It would also be an unreasonable restriction if a law provides that a union
shall not be entitled to represent its members in an industrial dispute unless the union is
approved by the administrative authority, at his absolute discretion. Conversely, it is
unreasonable for the Government to compel every employee to become a member of a
Government sponsored association.70
10.  Again, if the ban imposed upon an association or its rights be unlimited in
duration, in the absence of compelling circumstances, such restriction must be held
unreasonable.71
Again though a temporary extraordinary measure to meet an emergent situation may be
upheld as a reasonable restriction, the taking over the management from an elected
body would not be held as reasonable where management is not restored to that elected
body after the emergency is over.72
6.  While it would be reasonable for the State to regulate the administration of
the affairs of an association to protect the interests specified in Cl. (4), it would be
unreasonable for the State to alter the composition of the association against the wishes
of the original members, because that would go to the root of their fundamental right to
form the association.73 In cases where co-operative societies or associations are formed
and are from their inception governed by a statute, then they are created by statute and
are controlled by statute. In such cases there can be no objection to statutory
interference with the composition on the ground of contravention of the individual right to
freedom of association.74
On the other hand,--
 507

It would not be unreasonable for a law to require that a trade union must show a minimum
strength of membership to qualify for the right to represent workmen for the purpose of
collective bargaining.75 In other words, the fundamental right of workers to form unions, does
not debar the State laying down reasonable conditions for the recognition of a labour union for
the purpose of dealing with the State.76 But such conditions, in order to be valid, must be
relatable to any of the grounds mentioned in Cl. (4) of Art. 19.77

The right of citizen to form association or union that is guaranteed by Art.19(1)(c) is subject to
reasonable restriction under Art.19(4). Under Art.19(4), the State can impose reasonable restriction
inter alia, in the interest of sovereignty and integrity of India. The Prevention of Terrorism Act, 2002
(POTA)78is enacted to protect sovereignty and integrity of India from the menace of terrorism. Imposing
restrictions under Art.19(4) also includes declaring an organisation as a terrorist organisation as
provided under POTA. The Court said that s.18 of the Act is not unconstitutional. As regards the
reasonableness of restriction provided under the above section it has to be noted that the factum of
declaration of an organisation as a terrorist organisation depends upon the belief of Central
Government. The reasonableness of Central Government's act ion has to be justified based on
material facts upon which it formed the opinion. Moreover, the Central Government is bound by the
order of Review Committee. Considering the nature of legislation and magnitude of presence of
terrorism, it cannot be said that s.18 of POTA imposes an unreasonable restriction guaranteed under
Art. 19(1)(c). The court also took note of the fact that under s.19 of the Act, the aggrieved person
himself can approach the Central Government for reviewing its decision and if they are not satisfied by
decision of Central Govt., they are also free to move the court invoking constitutional remedies. The
Court also said that the remedy under POTA which provides for post-decisional hearing satisfies the
requirement of "audi alteram partem" in the matter of declaring an organisation as a terrorist
organisation. Therefore, the absence of pre-decisional hearing cannot be treated as a ground for
declaring s.18 as invalid.79
Provisions imposing restrictions on the use of the word "co-operative" or the term of office of office
bearers is not violative of Art. 19(1)(c).80 It was held that such a regulation or prohibition is to ensure
the public about the nature of the association i.e., it is not registered and not amenable to the
provisions of Co-operative Societies Act . To give a more democratic character to the co-operative
societies, and to enable all persons to participate in the management, fixing a term was also
reasonable.
Provision for reservations to weaker section of society in the management is also reasonable. 81
The formation of an association for the ventilation of grievances in a lawful manner is part of the
Constitutional right under Art. 19(1)(c). It is also protected under Art. 19(1)(a) and (b). Hence
reasonable restriction can be imposed under Clauses (2), (3) and (4) of Art. 19, i.e., to make laws to
protect public order. That power lends legality to preventive detention also under authority of law. 82
A right guaranteed by Art. 19(1)(c) on a "literal reading" can be subjected to restriction which satisfies
the test of Clause (4). The rights not included in the "literal" meaning, but which are sought to be
included therein as flowing therefrom, i.e., every right which is necessary in order that the association
brought into existence fulfils every object for which it is formed, the qualification therefore would not
merely be those in Clause (4) of Art. 19, but would be more numerous and very different. Restriction
which bore upon and took into account the several fields in which associations or union of citizen
might legitimately engage themselves, would also become relevant. A right to form association or
union does not include within its ken as a fundamental right a right to form association or union for
achieving a particular object or running a particular institution, the same being a concomitant or
concomitant to a concomitant of a fundamental right, but the fundamental right itself. The associations
or union therefore cannot claim as a fundamental right that they must be able to achieve the purpose
for which they have come into existence.83
Restrictions upon the Freedom of Association of Government servants
U.S.A.
 508

(A) U.S.A.--As has been already clear, the State may provide for the refusal of public, employment to
persons on the ground of their association with an organisation which advocates the overthrow of
Government by force or violence,84 with knowledge of the unlawful purposes of such organisation, and
with the specific intent of furthering, the illegal aims of the organisation. 85
Even when national security is not implicated, Government's special interest in safeguarding the
effectiveness and fairness of its operation, may justify some restriction on political expression by
public employees. Thus in US Civil Service Commission v. National Assn. of Letter Carriers ,86 the
Court upheld restrictions on partisan political act ivity by federal civil servants. Yet in a series of cases
dealing with Government employees not protected by civil service system, the court made it clear that
public servants do not forfeit their right to express opinion on political matters.
As stated earlier, restrictions to the above effect are imposed by several statutes.
Section 9A of the Hatch Act, 1939 54 St. 767 (771) makes it,
"unlawful for any person employed in any capacity by any agency of the federal Government .. to have
membership in any political party or organisation which advocates the over throw of our constitutional
form of Government in the United States".
To keep the civil services non-political, enacted laws that forbid such employees from engaging in act
ive political campaigning. The federal version of these laws, the Hatch Act, which forbids certain
executive branch employees from "any act ive part in political management or in political campaign"
has been upheld by the US Supreme Court against two challenges. In United Public Workers v.
Mitchell ,87 the Court upheld the application of Hatch Act prohibition to a production worker in US Mint
who a "ward executive" of a political party and was politically act ive on election day as a worker at the
polls. Within "reasonable limits", said the court, Congress could proscribe the political activities of its
employees. The said decision was applied in United States Civil Service Commission v. National
Assn. of Letter Carriers ,88.
Federal employees have been expressly prohibited to engage in strikes by the Labour-management
Relations (Taft-Hartley) Act of 1947, which says--
"it shall be unlawful for any individual employed by the United States or any Agency thereof, including
wholly-owned Government Corporations, to participate in any strike."
U.K.
(B) England.--There is no law prohibiting civil servants to form associations or unions. The Trade
Disputes and Trade Unions Act , 1927, which imposed a restriction in this matter, namely, that the
unions of civil servants should not affiliate with private unions, i.e., unions whose members were not
Government servants, was repealed in 1946, so that this restriction has since been removed. As a
result, there are numerous associations and unions of civil servants amongst the different grades,
affiliating themselves with the general trade union organisation of the country. In fact, the Whitley
Council system (see under Art. 311, post), which was introduced in 1919, presupposes the
organisation of the public employees into associations which could be represented on the Council.
Similarly, there is no law prohibiting civil servants to strike (unlike in the U.S.A.),89though, of course, if a
civil servant strikes and refuses to perform his duties, he incurs the liability to disciplinary act ion,
including dismissal, for, strike, as such, does not give the public servant any special immunity against
the Crown's pleasure to terminate the employment.
But the right to participate in political activities or strikes may be withdrawn on grounds of security. 90
(C) India.--It would be clear that while restrictions may be placed upon the freedom of association of
Government servants in the interests of discipline and the like which come within the meaning of
'public order' or morality in Art. 19(4), 91 or the sovereignty and integrity of India, a restriction is bad if it
constitutes pre-censorship; or goes in excess of the requirement or affords a vague criterion to the
administration to select individual employees for punishment or discriminatory treatment. 92 These
principles may be illustrated as follows--
 509

(a) Membership of association

It has been seen that r. 4B of the Central Civil Service (Conduct) Rules, 1955, has been invalidated by
the Supreme Court on the ground that the rule places the fundamental right of association belonging
to every Government servant subject to the recognition of the Government. The Supreme Court has
held that there is no proximate or reasonable connection between the recognition by the Government
of the association and the interests of public order or of the efficiency of or discipline amongst the
members of such association as Government servants, and that the Rule contravenes Art. 19(1)(c)
because it enables the Government to refuse or withdraw recognition on grounds other than those
specified in Cl. (4) of Art. 19.93 Such restriction made the freedom of Association, ineffective and
illusory and hence, unreasonable.94
Where restriction has been imposed by the Government that a teacher must take prior permission
from the authority for engaging political act ivities, such restriction was held valid which is aimed at
preventing teachers from getting mixed up with political institution. The teachers are subjected to
discipline of employment like other employees.95
It may also be held that such condition of previous permission or subsequent recognition amounts to
an administrative censorship96 imposed upon the fundamental right of association of Government
servants. Though the Government, as an employer, may refuse to hear representations through an
association which was not recognised by it (where the right of collective bargaining of 'industrial
workers' is not concerned),97 it cannot provide that without its recognition, an association of
Government servants which is not an 'unlawful association', cannot either be formed or continued 98or
that it may be dissolved, nor penalise (even by disciplinary action) the mere membership of such
unrecognised association, so long as it does not indulge in any unlawful act ivity 99 such as 'subversive
activities' or act ivities prejudicial to the national security. 100
(b) Disciplinary proceedings
(i) The validity of Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949 was
impugned on the ground that in the name of 'subversive activities', the Rule was aimed at terminating
the services of trade unionists and Communists. The Supreme Court negatived this contention on the
ground that, assuming what was alleged to be true, the Rule did not infringe Art. 19(1)(c) since it did
not prevent the Appellants from continuing to be Communists or trade unionists. But they have no
fundamental right to be continued in employment be the State, while engaged in subversive act ivities
as the service was held at the pleasure of the State. 101
The above decision might suggest that the pleasure of the Government to terminate the services of an
employee under Art. 310(1) is not controlled by the Fundamental Rights. But it has been held in a
number of later decisions that even Rules relating to termination of service must conform to the
Fundamental Rights.102 It would be better to rest the decision on the footing that 'subversive activities'
could be legitimately restricted on the ground of 'public order' under Art. 19(4).
Service Rules can be framed to maintain efficiency and discipline within the ranks of Government
servants. Such rules are protected or covered by the expression "public order" in Clause (4) of Art.
19.103 If freedom of speech of an individual Government employee (in the case as President of an
Association) is circumscribed by the need for efficiency and discipline or confidentiality in public
interest, the individual exercises his freedom of speech in a manner conflicting with these
requirements at the risk of facing disciplinary act ion. This, however, does not mean that legitimate
action discreetly and properly taken by a Government servant with a sense of responsibility and at the
proper level to remedy any malfunction in the organisation would also be barred. What has to be
considered in such cases, is the reasonableness of the service rules which curtail certain kinds of act
ivities amongst Government servants in the interest of efficiency and discipline in order that they may
discharge their public duties as Government servants in a proper manner without undermining the
prestige or efficiency of the organisation. A public servant against the head of the department which
has nothing to do with discharge of duties, and which undermines the prestige of the organisation
made by the President of an Association cannot be protected since it violates the service rules. 104
 510

It follows that the services of a Government servant may be terminated for membership of a Party
which has for its object subversive activities prejudicial to the national security. 105 In M.H. Devendrappa
v. Karnataka State Small Industries Development Corpn .106, the Supreme Court has dissented from
Balakotiah's ruling (supra) entailing dismissal from service. The court has now said that the legitimate
action discretely and properly taken by a Government servant with a sense of responsibility and at the
proper level to remedy any malfunction in the organisation may not be barred. A person who
legitimately seeks to exercise his right under Art.19 cannot be told that you are free to exercise the
right, but consequences will be serious and so damaging, but you will not, in effect, be able to
exercise your freedom. This means, the approach made in Balakotiah's case,107 saying that a
Government servant is free to exercise his freedom under Art.19(1)(a) or (b), but at the cost of service
clearly amounts to deprivation of freedom of speech. Therefore, what the court has to consider is the
reasonableness of service rules which curtail certain kinds of act ivities amongst Government servants
in the interest of efficiency and discipline in order that they may discharge their public duties as
Government servants in a proper manner without undermining the prestige or efficiency of
organisation. If the rules are directly and primarily meant for the above purpose, "they being in
furtherance of Art.19(1)(a) & (c)".
Natural justice requires that, ordinarily, he should be given an opportunity to be heard before
dismissal;108 but exception on the ground of 'security of the State' has been provided in Cl. (c) of the
2nd Proviso to Art. 311(2).109
(ii) It has been held by the Madras High Court110 that it is essential in the interest of maintaining the
efficiency and integrity of Government servants that they should be prevented from soliciting or
receiving monies for any purpose unconnected with the office which they hold under the Government.
Hence, Rule 6 of the Government Servants' Conduct Rules which provides that--
"Except with the previous sanction of the Government .. no Government servant, shall ask for or
accept or in any way participate in the raising of any subscription or other pecuniary assistance in
pursuance of any object whatsoever"
does not offend against the right guaranteed by Art. 19(1)(c) even though it includes a prohibition to
solicit monies by sale of tickets to the public for the promotion of a non-political association to join
which a Government servant has a fundamental right, for, such restriction is a 'reasonable restriction'
within the purview of Cl. (4) of Art. 19.111
(c) Prohibition of strikes
As regards strikes, however, the general rule laid down by Rule 7 of the Central Civil Service
(Conduct) Rules, 1964 is--
"no Government Servant shall participate in any demonstration .. or resort to any form of strike in
connection with any matter pertaining to his service..."
Rule 22 of Tamil Nadu Government Servants Conduct Rules 1973 provides that "no Government
servant shall engage himself in strike or in incitements thereto or in similar activities". Explanation to
the said provision explains thus - "For the purpose of this rule the expression "similar act ivities" shall
be deemed to include the absence of work as neglect of duties without permission and with the object
of compelling something to be done by his superior officers or the Government or any demonstrative
fast usually called "hunger strike" for similar purposes. Rule 22A further provides that "No Government
servant shall conduct any procession or hold or address any meeting in any part of any open ground
adjoining any Government office or inside any office premises - (a) during office hours on any working
day; and (b) outside office hours or on holidays save with the prior permission of the head of the
department or head of office, as the case may be.

1 National Labour, Relations Board v. Jones, (1937) 301 US 1.

 511

2 International Union v. Wisconsin Employmmt Bd., (1949) 336 US 245.

3 Dorchy v. Kansas, (1926) 272 US 306.

4 Dorchy v. Kansas, (1926) 272 US 306.

5 Dorchy v. Kansas, (1926) 272 US 306.

6 Dorchy v. Kansas, (1926) 272 US 306.

7 National Labour Relations Bd. v. Fansteel Corp., (1938) 306 US 31.

8 U.S. v. United Mine Workers, (1947) 330 US 258.

9 United Steelworkers v. U.S., (1959) 361 US 39.

10 International Union v. Wisconsin Employmmt Bd., (1949) 336 US 245.

11 Lyng v. Automobile Workers. (1988) 485 US 360 (366-369).

12 American Steel Foundries v. Tri-City Central Trade Council, (1921) 257 US 184.

13 NLRB v. Fansteel Metallurgical Corpn., (1939) 306 US 240.

14 UAW v. Wincosin Employment Rel. Board, (1949) 336 US 245.

15 NLRB v. Fansteel Corpn., (1939) 306 US 240 (supra); NLRB v. Sands Mfg. Co., (1939) 306 US 332; Southern S.S.
v. NRLB, (1942) 316 US 31.

16 Griffin Hosiery Mills Inc. 83 NRLB 1240 (1949); NRLB v. Mac.Kay Radio & Tel. Co., (1938) 304 US 333; Vogue
Lingerie In., 123 NLRB 1009 (1954).

17 Efco Manufacturing Co., 108 NLRB 245 (1954); Kitty Colver Inc., 193 NLRB 1665 (1953).

18 The American Tool Work Co., 116 NLRB 1681 (1956); H. N. Thayor & Co., 115 NLRB 1591 (1956).

19 Halsbury, 4th Ed., Vol. 47, para. 567; De Smith (6th Ed., 1989) pp. 524-30; Wade & Bradley (10th Ed., 1985) pp.
555 ff.

20 Halsbury's Laws of England, 4th Edn.,Vol. 8 para 841 at p. 556.

21 Halsbury's Laws of England, 4th Edn.,Vol. 4 at p. 1144.

22 Halsbury's Laws of England, 4th Edn.,Vol. 43 para 481 p. 318.

23 Halsbury, 4th Ed., Vol. 47, para. 567; de Smith (6th Ed., 1989) pp. 524-30; Wade & Bradley (10th Ed., 1985) pp. 555
ff.

24 Raghubar v. Union of India, AIR 1962 SC 263 (270) : (1962) 3 SCR 547; All India Bank Employees' Assocn. v.
National Industrial Tribunal, AIR 1962 SC 171 (182) : (1962) 3 SCR 269; Kameshwar v. State of Bihar, (1962) Supp. 3
SCR 469.

25 All India Bank Employees' Assn. v. The National Industrial Tribunal , (supra); see alsoDharam Dutt v. UOI, AIR 2004
SC 1295 : (2004) 1 SCC 712.

26 Radhey Sham v. Post Master General, AIR 1965 SC 311 : (1964) 7 SCR 403.

27 Mill Manager v. Dharam Das, AIR 1958 SC 311 : (1958) 1 LLJ 539.

28 Kameshwar Prasad v. State of Bihar, (1962) Supp. 3 SCR 369 : AIR 1962 SC 1166.

29 Cf. Swadeshi Industries v. Workmen, AIR 1960 SC 1258 : (1960) 2 LLJ 78.

30 Cf. Ballarpur Collieries v. C.G.I.T ., Dhanbad, AIR 1972 SC 1216 : (1972) 2 SCC 27.

31 Kairbetta Estate, Kotagiri v. Rajamanickam, (1960) 3 SCR 371 : AIR 1960 SC 893.

32 Crompton Greaves Ltd. v. The Workmen, AIR 1978 SC 1489 : (1978) 3 SCC 155 : (1978) 2 LLJ 80.
 512

33 Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes' Mazdoor Sabha, AIR 1980 SC 1896 : (1980) 2 SCC 593 : (1980) 2
SCR 146 : (1980) 1 LLJ 137.

34 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC 712.

35 T.K. Rangarajan v. Government of Tamil Nadu, AIR 2003 SC 3032 : (2003) 6 SCC 581 : (2003) 3 LLJ 275. See
alsoJames Martin v. State of Kerala, (2004) 2 SCC 203 : (2004) 10 JT (SC) 371.

36 James Martin v. State of Kerala, (2004) 2 SCC 203 : (2004) 10 JT (SC) 371.

37 "The Right to Strike", Frontline Magazine, dt. 10-10-2003 and republished in the book Constitutional Question &
Citizen's Right, 2005 Edn., Article No. 9, p. lxiv.

38 Crafters Handwoven Harris Tweed & Co. v. Veitch, (1942) AC 1942.

39 Morgan v. Fry, (1968) 2 QB 710.

40 Also see (1) Sandeep S. Desai, "Right to Strike - A Conceptual and Contextual Anathema - Notes and Comments,
Journal of Indian Law Institute, Vol. 47, 2005, p. 224.; (2) Mallikarjuna Sharma, "Right to Strike", Vol.46, 2004, p. 522.

41 Dorch v. Kansas, (1926) 272 US 306.

42 Bank of India v. T.S. Kelawala, (1990) 4 SCC 744 : (1990) 3 SCR 214 (para. 26).

43 Singh B.R. v. Union of India, (1989) 4 SCC 710 : AIR 1990 SC 1 (para. 15).

44 Singh B.R. v. Union of India, (1989) 4 SCC 710 : AIR 1990 SC 1 (para. 15).

45 Labour Board v. Truck Drivers' Union, (1956) 353 US 87 (93).

46 Cf. National Union v. Gillian, (1946) 1 KB 81(CA) ; HALSBURY, 4th Ed., Vol. 47, para s. 493, 495, 570, 571.

47 Halsbury's Laws of England, 4th Edn., Vol. 47, para 493 at p. 408.

48 Halsbury's Laws of England, 4th Edn., Vol. 47, para s. 493, 495, 570, 571.

49 Labour Board v. Truck Drivers' Union, (1956) 353 US 87 (93).

50 Labour Board v. Truck Drivers' Union, (1956) 353 US 87 (93).

51 Evergreen Industries v. Asst. Director , 1990 PLC (Pakistan); Ilyas Khan, "Legal Terms & Phrases" as extracted in
Ramanathaiyer, Advanced Law Lexicon, 3rd Edn., Vol. I,, p. 838.

52 Express Newspapers v. Workers, AIR 1963 SC 569 : (1963) 3 SCR 540; Tatanagar Foundry v. Workmen, AIR 1970
SC 1960 : (1969) 3 SCC 464.

53 Kairbetta Estate, Kotagiri v. Rajamanickam, AIR 1960 SC 893 : (1960) 3 SCR 371.

54 Ramanathaiyer,Advanced Law Lexicon, 3rd Edn., 2005, Part III, p. 2789.

55 Tata I. S. Co. v. Workmen, AIR 1972 SC 1917 : (1972) 2 SCC 383.

56 Kairbetta Estate v. Rajmanickam, (1960) 2 LLJ 275 (278)(SC) .

57 AIR 2005 SC 2306 : (2005) 5 SCC 632.

58 SeeDaman Singh v. State of Punjab, AIR 1985 SC 973 : (1985) 2 SCC 670.

59 Daman Singh v. State of Punjab, AIR 1985 SC 973 : (1985) 2 SCC 670.

60 SeeState of Maharashtra v. Karvanagar Sahakari Griha Rachana Sanstha, Maryadit, (2000) 9 SCC 295 : (2000) 8
JT (SC) 68.

61 Renusagar Power Co. Ltd. v. General Electric Co., AIR 1994 SC 860 : 1994 (Supp-1) SCC 644; Rodrigues v.
Speyer Bros., (1919) AC 59 (1918-1919) All ER 884; Fender v. Mildmor, 1938 AC 1 : (1937) 3 All ER 402.

62 AIR 1981 SC 487 : (1981) 1 SCC 722.

63 See also Arvind Datar, Commentary on the Constitution of India , 2007 Edn., Vol. I, at pp. 315-317.
 513

64 See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law, 13th Edn., at p.155.

65 Conservative and Unionist Office v. Burnwell, (1982) 1 WLR 522; Re. Grant's Will Trusts, (1980) 1 WLR 360.

66 See Hood Phillips & Jackson, Constitutional & Administrative Law, 8th Edn., at pp.23-24.

67 A.P.H.L.C. Shillong v. Sangma, AIR 1977 SC 2155 : (1977) 4 SCC 161 (para. 29).

68 See Ramanathaiyer, Advanced Law Lexicon, 3rd Edn., 2005, Vol. 3, page 3627.

69 Justice (R) Fazal Karim, Judicial Review of Public Action, 2006 Edn.,

70 Muhammad Mian Nawaz Sharif v. Federation of Pakistan, PLD 1993 SC 473, 848.

71 Benazir Bhutto v. Federation of Pakistan, PLD 1988 SC 416, 515-7.

72 Edmund Burke, "Thoughts on the Cause of the Present Discontent".

73 These observations of the Author in this Commentary proved prophetic in 1990-91 when the V.P. Singh Government
had its fall owing to the B.J.P. withdrawing its 'support' and, next when Mr. Chandrasekhar had to resign owing to the
virtual withdrawal of support by Congress (I).

74 Brown v. Socialist Workers, (1982) 459 US 87; Andepon v. Celebrezze, (1983) 456 US 960.

75 Anderson v. Celebrezze, (1983) 460 US 780.

76 (1987) 479 US 208 (supra).

77 (1984) 490 US 214 (supra).

78 (1992) 504 US 428.

79 (1997) 520 US 351.

80 (2000) 530 US 567.

81 American Communications Assocn. v. Douds, (1950) 339 US 382.

82 Communist Party of Indiana v. Whitchomb, (1974) 414 US 441.

83 Brandenburg v. Ohio, (1969) 395 US 444.

84 Yates v. U.S., (1957) 354 US 298 (320).

85 NAACP v. Alabama, (1958) 337 US 449.

86 Communist Party v. Subversive Activities Control Bd., (1961) 367 US 1; Bryant v. Zimmerman, (1929) 278 US 63.

87 Communist Party v. U.S., (1964) 377 US 968, denying certiorari from 331 F. 2d, 807.

88 Communist Party v. U.S., (1964) 377 US 968, denying certiorari from 331 F. 2d, 807; Albersion v. S.CAB., (1965)
382 US 70. [This decision led to the repeal in 1968, of those provisions of the Internal Security Act which required the
registration of Communist organizations and their members].

89 Communist Pary v. Subversive Activities Control Board, (1961) 367 US 1.

90 Dombrowski v. Pfister, (1965) 380 US 479.

91 Dombrowski v. Pfister, (1965) 380 US 479.

92 Scales v. U.S., (1961) 367 US 203.

93 (1976) 424 US 1.

94 See alsoMcConnell v. Federal Election Commission, (2003) 540 US 93.

95 A.P.H.L.C. Shillong v. Sangma, AIR 1977 SC 2155 : (1977) 4 SCC 161 (paras. 29, 31).
 514

96 Griffith and Ryle, Parliament Function, Practice and Procedure, 1989 Edn., at 119.

97 SeeKihotto Hollohan v. Zachillhu, AIR 1993 SC 412 : 1992 (Supp-2) SCC 651.

98 AIR 2012 SC 2191 : (2012) 7 SCC 340.

99 AIR 1950 SC 124.

100 Per JUSTICE CHELAMESHWAR.

101 A.P.H.L.C. Shillong v. Sangma, AIR 1977 SC 2155 : (1977) 4 SCC 161 (paras. 29, 31); S.S.P. v. Election
Commission, AIR 1967 SC 898 : (1967) 1 SCR 643 (para s. 4, 11) (CB).

102 A.P.H.L.C. Shillong v. Sangma, AIR 1977 SC 2155 : (1977) 4 SCC 161 (paras. 29, 31).

103 A.P.H.L.C. Shillong v. Sangma, AIR 1977 SC 2155 : (1977) 4 SCC 161 (paras. 29, 31).

104 A.P.H.L.C. Shillong v. Sangma, AIR 1977 SC 2155 : (1977) 4 SCC 161 (paras. 29, 31).

105 S.S.P. v. Election Commission, AIR 1967 SC 898 : (1967) 1 SCR 643 (para s. 4, 11) (CB).

106 S.S.P. v. Election Commission, AIR 1967 SC 898 : (1967) 1 SCR 643 (para s. 4, 11) (CB).

107 Electoral Reforms in India, The State Council and Citizen for Democracy, Delhi, dated 6.9.1980.

108 Common Cause - A Registered Society v. Union of India, (1996) 2 SC C 752. See also "Law of Parties : The
German Model" - Article by A.G. Noorani dated 1-11-2000 in The Statesman Daily - Republished in Constitutional
Question & Citizen's Rights --Article No. 42, p. 310.

1 See Dr. Subhah C. Kashyap, Constitution Making since 1950 - An Overview, Vol.VI, pp. 357-361.

2 People's Union for Civil Liberties v. UOI, AIR 2003 SC 2363 : (2003) 4 SCC 399.

3 Sweezy v. New Hampshire, (1957) 354 US 234 (265); U.S. Civil Service Commn. v. National Association, (1973) 413
US 548.

4 Gompers v, Bucks Stove & Range Co., (1911) 221 US 418.

5 Gompers v, Bucks Stove & Range Co., (1911) 221 US 418.

6 Bryant v. Zimmerman, (1929) 278 US 63.

7 Bryant v. Zimmerman, (1929) 278 US 63.

8 Giboney v. Empire Storage Co., (1949) 336 US 490 (495).

9 International Union v. Wisconsin Employment Bd., (1949) 336 US 245; Meat Drivers v. U.S., (1962) 371 US 94.

10 Gibson v. Florida Legislative Committee, (1963) 372 US 539 (555-8); Bates v. Little Rock, (1960) 361 US 516.

11 Dombrowski v. Pfister, (1965) 380 US 479.

12 NAACP v. Alabama, (1958) 357 US 449.

13 Shelton v. Tucker, (1960) 364 US 479.

14 Bryant v. Zimmerman, (1929) 278 US 63.

15 Bridges v. Wixon, (1945) 326 US 135.

16 Schneiderman v. U.S., (1943) 320 US 118.

17 (1965) 384 US 11.

18 (1960) 367 US 203.

19 See also Aptheker v. Secretary of State, (1963) 378 US 500; Bagget v. Bullitt, (1963) 377 US 360 ; Cramp v. Board
of Public Instruction, (1961) 368 US 278; Gibson v. Florida Investigation Committee, (1962) 372 US 539.
 515

20 (1960) 367 US 290.

21 Garner v. Board of Public Works, (1951) 341 US 716.

22 Keyshian v. Bd. of Regents, (1967) 385 US 589 (overrulingAdler v. Bd. of Education, (1952) 342 US 485);
Elfbrandt v. Russell, (1966) 384 US 11; Communist Party v. Whitcomb, (1972) 414 US 441.

23 Communist Party of the U.S. v. Subversive Activities Control Board, (1961) 367 US 1.

24 Albertson v. S.ACB., (1965) 382 US 70.

25 (1950) 341 US 123.

26 U.S. v. Robel, (1967) 389 US 258; U.S. v. Brown, (1965) 381 US 437.

27 Scales v. U.S., (1961) 367 US 203.

28 Brandenburg v. Ohio, (1969) 395 US 444; Noto v. U.S., (1961) 367 US 290.

29 (1926) 274 US 357.

30 De Jonge v. Oregon, (1936) 299 US 353.

31 (1967) 389 US 258.

32 Schware v. Board of Bar Examiners, (1956) 353 US 232 (246).

33 Dayton v. Dulles, (1957) 357 US 144.

34 United Steelworkers v. U.S., (1959) 361 US 39.

35 Labour Board v. Truck Drivers' Union, (1956) 353 US 87 (3).

36 Kent v. Dulles, (1957) 357 US 116; Aptheker v. Secy. of State, (1964) 378 US 500.

37 Wesberry v. Sanders, (1964) 376 US 1 (6-7).

38 Ghosh v. Ex. Joseph, AIR 1963 SC 812 (814-15) : 1963 Supp (1) SCR 789.

39 Ghosh v. Ex. Joseph, AIR 1963 SC 812 (814-15) : 1963 Supp (1) SCR 789.

40 Krishna v. State, AIR 1953 TC 174.

41 Ghosh v. Ex. Joseph, AIR 1963 SC 812 (814-15) : 1963 Supp (1) SCR 789.

42 (2011) 1 SCC 784 : AIR 2011 SC 340.

43 (1965) 384 US 11 (supra).

44 See also Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.

45 SeeArup Bhuyan v. State of Assam, (2011) 3 SCC 377 : AIR 2011 SC 957.

46 Raja Kulkarni v. State of Bombay, AIR 1954 SC 73 : (1954) SCR 384.

47 Ghosh v. Ex. Joseph, AIR 1963 SC 812 (814-15) : 1963 Supp (1) SCR 789.

48 American Communications Assocn. v. Douds, (1950) 339 US 382.

49 See Author's Constitution Amendment Acts.

50 Vasu Nair v. State of T.C., AIR 1955 TC 33.

51 Kulkarni v. State of Bombay, (1954) SCR 384 : AIR 1954 SC 73.

52 State of Madras v. Row, (1952) SCR 597 (607) : AIR 1952 SC 181.

53 SeeJamaat-e-Islami Hind v. UOI, (1995) 1 SCC 428; Rajendra Prasad Agrawal, AIR 1993 All 258.
 516

54 See M.P. Jain, Indian Constitutional Law, 7th Edn., 2014 at pp.1058-1059.

55 Now repealed.

56 Indra Das v. State of Assam, (2011) 3 SCC 380 : (2011) 2 SCALE 312; see alsoState of Kerala v. Raneef, (2011) 1
SCC 784 : AIR 2011 SC 340; Arup Bhuyan v. State of Assam, (2011) 3 SCC 377 : AIR 2011 SC 957.

57 Mohammed Jafar v. Union of India, 1994 (Supp-2) SCC 1.

58 Now repealed by the Companies Act , 2013.

59 State of Madras v. Row, (1952) SCR 597 (607) : AIR 1952 SC 181.

60 Yates v. U.S., (1957) 354 US 298 (320).

61 State of Madras v. Row, (1952) SCR 597 (607) : AIR 1952 SC 181.

62 Krishna v. State, AIR 1953 TC 174; Chhadayamurty v. State, AIR 1952 TC 217(FB) .

63 AIR 1952 SC 196 : (1952) SCR 597.

64 State of UP v. CO Chheoki Employees Co-op. Society Ltd., AIR 1997 SC 1413 : (1997) 3 SCC 681.

65 Manohar v. State of Maharashtra, AIR 1984 Bom 47.

66 Jamat-E-Islami Hind v. Union of India, (1995) 1 SCC 428. See also Dharam Dutt v. Union of India, (2004) 1 SCC
712 : AIR 2004 SC 1295.

67 Ramakrishnaiah v. Dt. Board, AIR 1952 Mad 253.

68 Ghosh v. Joseph, AIR 1963 SC 812 (814-15) : 1963 Supp (1) SCR 789.

69 Ghosh v. Joseph, AIR 1963 SC 812 (814-15) : 1963 Supp (1) SCR 789.

70 Ghosh v. Joseph, AIR 1963 SC 812 (814-15) : 1963 Supp (1) SCR 789; Sitharamachary v. Dy. Inspector of Schools,
AIR 1985 AP 78.

71 State of Madras v. Row, (1952) SCR 597 (607) : AIR 1952 SC 181.

72 Asom Rastrabhasa P.S. v. State of Assam, AIR 1989 SC 2126 : (1989) 4 SCC 496 (para. 17).

73 Damayanti v. Union of India, AIR 1971 SC 966 : (1972) 4 SCC 274.

74 Daman Singh v. State of Punjab, AIR 1985 SC 973 : (1985) 2 SCC 670. See alsoZoroastrian Cooperative Housing
Society Ltd. v. District Registrar of Co-operative Societies (Urban), (2005) 5 SCC 632 : AIR 2005 SC 2306.

75 Ramakrishnaiah v. Dt. Board, AIR 1952 Mad 253.

76 Sitharamachary v. Dy. Inspector of Schools, AIR 1985 AP 78.

77 Sitharamachary v. Dy. Inspector of Schools, AIR 1985 AP 78.

78 Now repealed.

79 People's Union for Civil Liberties v. UOI, AIR 2004 SC 456 : (2003) 10 JT (SC) 70 : (2004) 9 SCC 580.

80 Bhandara District Central Co-operative Bank Ltd. v. State of Maharashtra, AIR 1993 SC 59 : 1993 (Supp-3) SCC
259 : 1992 (Supp-1) SCR 501.

81 State of U.P. v. C.O.D. Chheoki Employees' Co-operative Society Ltd., AIR 1997 SC 1413 : (1997) 3 SCC 681.

82 Ram Bahadur Rai v. State of Bihar, AIR 1975 SC 223 : (1975) 3 SCC 710.

83 Dharam Dutt v. Union of India, AIR 2004 SC 1295 : (2004) 1 SCC 712. See also All India Bank Employees
Associations v. National Industrial Tribunal, AIR 1962 SC 171 : (1962) 3 SCR 269 : (1961) 2 LLJ 385; L.N. Mishra
Institute of Economic Development and Social Change v. State of Bihar, AIR 1988 SC 1136 : (1988) 2 SCC 433;
Raghubhar Dayal Jai Prakash v. Union of India, AIR 1962 SC 263 : (1962) 3 SCR 547; S. Azeez Basha v. Union of
India, AIR 1968 SC 662 : (1968) 1 SCR 833; D.A.V. College, Jullundur v. State of Punjab, (1971) 2 SCC 269.
 517

84 Wieman v. Updegraff, (1952) 344 US 183.

85 Elfbrandt v. Russel, (1966) 384 US 11.

86 (1973) 413 US 548.

87 (1947) 330 US 75.

88 Supra.

89 Elfbrandt v. Russel, (1966) 384 US 11.

90 Wade & Bradley, Constitutional Law, 1985, pp. 281-83; Hood Phillips (1987), p. 343.

91 Ghosh v. Joseph, AIR 1963 SC 812 (815) " 1963 Supp (1) SCR 789.

92 Cf. Balakotiah v. Union of India, AIR 1958 SC 232 (238) : 1958 SCR 1052.

93 Mill Manager v. Dharam Das, AIR 1958 SC 311 : (1958) 1 LLJ 539.

94 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 : (1963) (Supp-1) SCR 789 (supra).

95 Hazi Ibrahim v. District Board, AIR 1958 Calcutta 401.

96 Ramakrishnaiah v. Dt, Board, AIR 1952 Mad 253.

97 Cf. Bhagelu v. Civil Surgeon, AIR 1960 All 353 (358).

98 Ramakrishnaiah v. Dt, Board, AIR 1952 Mad 253; Cf. Bhagelu v. Civil Surgeon, AIR 1960 All 353 (358).

99 Shital v. Dy. A.G., AIR 1955 All 623.

100 Jagannath v. State of U.P., AIR 1961 SC 1245 (1252) : (1962) 1 SCR 151; State of Orissa v. Dhirendra Nath Das,
AIR 1961 SC 1715; O.K. Ghosh v. E.X. Joseph., AIR 1963 SC 812 (814) : 1963 Supp (1) 789.

101 Cf. Balakotiah v. Union of India, AIR 1958 SC 232 (238) : 1958 SCR 1052.

102 Jagannath v. State of U.P., AIR 1961 SC 1245 (1252) : (1962) 1 SCR 151; State of Orissa v. Dhirendra Nath Das,
AIR 1961 SC 1715; O.K. Ghosh v. E.X. Joseph., AIR 1963 SC 812 (814) : 1963 Supp (1) 789.

103 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 : 1963 (Supp-1) SCR 789.

104 M.H. Devendrappa v. Karnataka State Small Industries Development Corpn., AIR 1998 SC 1064 : (1998) 3 SCC
732 : (1998) 1 LLJ 1202.

105 Cf. Balakotiah v. Union of India, AIR 1958 SC 232 (238) : 1958 SCR 1052.

106 AIR 1998 SC 1064 : (1998) 3 SCC 732.

107 AIR 1958 SC 232 (238) : 1958 SCR 1052 (supra).

108 Dir. of Education v. Rawat, AIR 1971 All 371 (para. 7).

109 Vide Art s. 308-311post.

110 Sethumadhava v. Collector, AIR 1955 Mad 568 (470).

111 Sethumadhava v. Collector, AIR 1955 Mad 568 (470).

In view of the above rule and also interpreting Art. 19(1)(a) and (c), it was held by the Supreme Court
that Government servants have no fundamental right to strike nor do they have any legal, statutory or
moral right to strike. The Supreme Court further held that in the case of reinstatement, the employee
should undertake to the effect that they will abide by Rule 22 of Conduct Rules, i.e., they will not resort
to strike and they should render unconditional apology for having engaged in the strike. 1 In that case,
the Court also took judicial notice of the consequences of strike and how it affects the society in
 518

general. It was held that Government servants apart from conscious of their rights must also be fully
aware of their duties, responsibilities and effective methods of discharging the same. It was held that
in a democracy, eventhough there are Government employees, they are part and parcel of the
governing body and owe a duty to the society.2
There is nothing to invalidate the above rule since it has been held that there is no fundamental right
to strike.3 The freedom of association guaranteed by Art. 19(1)(c) does not include a right to strike, and
the reasonableness of a law penalising an employee for joining a strike in the essential services
cannot be questioned.4
Restrictions upon rights of military and Police personnel
See under Act, 33, post.
1 T.K. Rangarajan v. State of Tamil Nadu, (2003) 6 SCC 581 : AIR 2003 SC 3032 : (2003) 3 LLJ 275.

2 See alsoJames Martin v. State of Kerala, (2004) 2 SCC 203.

3 Radhey Shyam Sharma v. Post Master General Central Circle, Nagpur, AIR 1965 SC 311 : (1964) 7 SCR 403.

4 Radhey Shyam Sharma v. Post Master General Central Circle, Nagpur, AIR 1965 SC 311 : (1964) 7 SCR 403.

CLAUSE (1)(D): FREEDOM OF MOVEMENT

OTHER CONSTITUTIONS 5

U.K.
(A) England.--During the time of the Stuarts, restrictions were imposed, by statute, on the freedom of a
person to move from one parish to another to settle there, in the interests of recovery of local rates.
These statutes having been abolished, it is now acknowledged by common law that the personal
liberty of an Englishman includes his freedom of locomotion from any part of the realm to another 6;
and any interference with this freedom would be wrongful, unless done 'in due course of law'.
There is no general enforceable right to enter, remain in or to move freely about in the UK or to travel
abroad and therefore that freedom is in a vulnerable position, although in practice the Government
has not generally tended to interfere with it as far as British citizens are concerned. However, non-
British persons born in or residing in UK may not be allowed to remain, enter or to re-enter or may be
separated from families because the families cannot obtain entry. Persons who have a claim to enter
the UK may not find that the claim receives full consideration, while persons who may be expelled
from the UK have a claim to remain. Obviously such expulsion represents one of the clearest possible
infringement of freedom of movement and although it must be weighed against the right of every
nation to place limits on those who can enter or remain within its boundaries; the mechanism for
balancing the two interests should in principle allow them to be fully and fairly weighed against each
other.7
U.S.A.
(B) U.S.A.--The rights of movement, residence and settlement are not specifically mentioned in the
Constitution of the United States, but are sought to be secured by s. 1, 14th Amendment, which
confers dual citizenship and prohibits the States from making any law which abridges the 'privileges or
immunities' of citizens of the United States. Amongst these privileges are: (a) the right to acquire and
possess property of every kind,8(b) to pass through or reside in another State, for purposes of trade,
agriculture, professional pursuits or otherwise9, and to enjoy, without discrimination against himself by
the Federal or State Governments (except under the 'police powers'). 10 In Apthekaer v. Secretary of
State ,11 JUSTICE DOUGLAS observed: "The freedom of movement is the very essence of our free
society, setting us apart. Like the right to Assembly and the right to association, it often makes all other
rights, meaningful, knowing, studying, arguing, explaining, conversing, observing and even thinking.
 519

Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is
placed on a person".
In the American Constitution, the right to travel throughout the length and breadth of America finds no
explicit mention in the Constitution. The "reason, it has been suggested, is that a right so elementary
was conceived from the beginning to be a necessary concomitant of the stronger union the
Constitution created. In any event, freedom to travel throughout the United States has been long
recognised as a basic right under the Constitution".12
In America, while constitutional right of inter-State travel is virtually unqualified, the right of
international travel has been considered to be no more than an aspect of liberty protected by the "due
process" clause of the Fifth Amendment. As such, this right, the Supreme Court has held, can be
regulated within the bounds of "due process".13
Again, from the guarantee of 'personal liberty' (14th Amendment) has been deduced "the right of
locomotion, the right to remove from one place to another, according to inclination," 14 and this right has
been extended to cover freedom of movement from one State to another 15 read with the 'Privileges'
Clause just cited. It was held in that case that right of a person to move freely from State to State
occupies a more protected position in our constitutional system than does the movement of cattle,
fruit, steel and coal across State lines. The right involved is so fundamental. The right to move from
State to State is an incidence of national citizenship protected by the privileges and immunities clause
of the Fourteenth Amendment against State interference. In that case, a citizen of US and a resident
of California was convicted in a Californian Court of violating a State law that made it a misdemeanour
to bring "into the State any indigent person who is not a resident of the State, knowing him to be an
indigent person. He brought his brother-in-law, a US citizen, but a resident of Texas, who had no
means of support or savings. The Court said: "Does indigence' as defined by the applicant of the
California statute constitute a basis for restricting the freedom of a citizen, as crime or contagion
warrant its restriction? We should say now, and in no uncertain terms that a man's mere property
status without more, cannot be used by a State to test, qualify or limit his right as a citizen of US.
"Indigence" in itself is neither a source of right nor a basis for denying them. The mere state of being
without funds is a neutral fact - constitutionally irrelevant like race, creed or colour. 16
In Saenz v. Roe ,17 the Court explained that right to travel "now firmly established in our jurisprudence"
has three different components. It protects the right of a citizen of one State to enter and to leave
another State, the right to be treated as a welcome visitor rather than unfriendly alien when
temporarily present in second State and for those travellers who elect to become permanent
residents, the right to be treated like other citizens of the State.
"Freedom of movement across frontiers in either direction and inside frontiers as well was a part of our
heritage. Travel abroad, like travel within the country may be necessary for livelihood. It may be as
close to the heart of the individual as the choice of what he act s or wears or reads. Freedom of
movement is basic in our scheme of values".18
West Germany
(C) West Germany.--Art. 11 of the West German Constitution (1949)19 provides--

10)  All Germans shall enjoy freedom of movement throughout the federal
territory.
13)  This right may be restricted only by or pursuant to a law and only in cases in
which an adequate basis of existence is lacking and special burdens would arise to the
community as a result thereof, or in which such restriction is necessary to avert an
imminent danger to the existence or the free democratic basic order of the Federation or
a Land, to combat the danger of epidemics, to deal with natural disasters or particularly
grave accidents, to protect young people from neglet or to prevent crime.]"20

5 Article 13 of the Universal Declaration of Human Rights says--"(1) Everyone has the right to freedom of movement
and residence within the borders of each State. (2) Everyone has the right to leave any country, including his own and
 520

to return to his country." Art. 11 (1) (a) of the Covenant on Human Rights, 1950 says--"Subjects to any general law,
adopted for specific reasons of national security, public safety or health, everyone has the right to liberty of movement
and is free to choose his residence within the borders of each State."

6 1 Bl. 134 .

7 Helen Fenwick, Civil Liberties, 1998 Edn. at p. 449.

8 Corfield Coryell, (1823) 4 Wash CC 371 (380).

9 Corfield Coryell, (1823) 4 Wash CC 371 (380).

10 McLain, Constitutional Law of the United States, p. 281.

11 (1964) 378 US 500.

12 U.S. v. Guest, 383 US 745.

13 California v. Aznavorian, 439 US 170.

14 Williams v. Fears, (1900) 179 US 270 (274).

15 Edwards v. California, (1941) 314 US 160; Twining v. New Jersey, (1908) 211 US 78 (97).

16 See also Shapiro v. Thompson, (1969) 394 US 618.

17 (1999) 526 US 489.

18 Kent v. Dulles, (1958) 357 US 116.

19 Khare v. State of Delhi, (1950) SCR 519 (531) : AIR 1950 SC 211.

20 As amended in 1968.

INDIA
Freedom of Movement and Residence
Both these rights have for their object the removal of all internal barriers 21 in the country and to make
India as a whole the abode of the citizens of India. These provisions are thus complementary to Art. 5
which provides a single citizenship.
"What the Constitution emphasises upon by guaranteeing these rights is that the whole of Indian
Union in spite of its being divided into a number of States is really one unit so far, as the citizens of the
Union are concerned. All the citizens would have the same privileges and the same facilities for
moving into any part of the territory and they can reside or carry on business anywhere they like; and
no restrictions either inter-State or otherwise would be allowed to be set up in these respects between
one part of India and another."22
The freedom of movement of a citizen has three aspects23 --

72a)  the right to move from any part of his country to any other part;
75b)  the right to move out of his country;
50c)  the right to return to his country from abroad.
It is the first aspect which is emphasised by Cl. (1)(d) of Art. 19. The third aspect may come under Cl.
(1)(e).
According to the learned author, M.P. Jain, the right of movements under Art. 19(1)(d) and the right to
residence under Art. 19(1)(e), go together in most cases, for when a person is asked to quit a
particular place, both these rights are simultaneously affected. Therefore, most of the cases fall both
under Art. 19(1)(d) and (e) simultaneously and more or less the same principles are followed in the
matter of restrictions on any of these rights.24
 521

The second aspect is not specifically guaranteed by our Constitution 25, but has been deduced by the
Supreme Court from Art. 21 from the guarantee of 'personal liberty' 26. (See post). While explaining the
significance and importance of right to go abroad which is part of the right to freedom of movement in
the generic sense, JUSTICE BHAGAWATI in Maneka Gandhi v. UOI ,27 was of the view that "the right
is an important basic human right, for, it nourishes independent and self-determining creative
character of the individual, not only by extending his freedom of action, but also by extending the
scope of his experience". According to him, the freedom of movement at home and abroad is a highly
cherished right which is essential to the proper growth and development of human personality.
In the Conference of Jurists on "Freedom of Movement" held in Bangalore on 14 th January 1968 (See
AIR 1968 Journal Section p.59), it was concluded: "Freedom of movement of the individual within or in
leaving his own country, in travelling to other countries and in entering his own country is a vital
human liberty, whether such movement is for the purpose of recreation, trade or employment or to
escape from an environment in which his other liberties are suppressed or threatened. Moreover, in an
inter-dependent world requiring for its future peace and progress an ever growing measure of
international understanding, it is desirable to facilitate individual contacts between people and to
remove all unjustifiable restraints on their movement which may hamper such movement.
In the case of an alien who has entered India legally upon the single entry permit issued to him and
later applies for Indian citizenship, it is only fair that the competent authority must inform him the
reasons for his deportation. The alien must also be given an opportunity in such cases to make a
representation, against the proposed expulsion. But this procedure need not be followed in the case of
compelling reasons of national security etc.28
'Throughout the territory of India'

11.  This expression implies that the right guaranteed by this clause is the
freedom of both inter-State and intra-State freedom. Hence, subject to Cl. (5), a citizen
cannot be removed from one State to another29 or from one part to another of the same
State.30
15.  It should be noted, in this context, that the right to free movement from one
part of India to another is also secured by the word 'intercourse' in Art, 301, post,31 -
subject to legislation under Art s. 302 and 304(b). That right, however, is not a
fundamental right and looks at the freedom from the federal point of view. 32
In A.K. Gopalan v. State of Madras ,33 it was held, thus, - The words "throughout the territory of India"
were used to stretch the ambit of freedom of movement to the utmost extent to which it could be
guaranteed by the Constitution. The Constitution could not guarantee freedom of movement outside
the territorial limits of India and so has used those words to show that a citizen was entitled to move
from one corner of the country to another freely and without any obstruction. "Throughout" is an
amplifying and not limiting expression. The words "throughout the territory of India" having regard to
the context in which they have been used here, have the same force and meaning as the expression
"to whatsoever place of one's own inclination may direct" used by BLACKSTONE or the expression
"freedom to be able to go withersoever one pleases" used by COLERIDGE, J in Bird v. Jones ,34
According to PATANJALI SASTRI, J. "Reading Clauses (d) and (e) together, it is reasonably clear that
they were designed primarily to emphasise the factual unity of the territory of India and to secure the
right of a free citizen to move from one place in India to another and to reside and settle in any part of
India unhampered by any barriers which narrow-minded provincialism may seek to impose. In A.K.
Gopalan v. State of Madras ,35 reference as to expression "throughout the territory of India" it is opined
that the expression has been deliberately used to confine the operation of the right to territorial limits
of country. JUSTICE FAZAL ALI said: "In my opinion, the words "throughout the territory of India" were
used to stretch the ambit of the freedom of movement to the utmost to which it could be guaranteed by
our Constitution. The Constitution could not guarantee freedom of movement outside the territorial
limits of India and so has used these words to show that a citizen was entitled to move from one
corner of the country to another freely and without any obstruction.
 522

What the Constitution emphasises upon by guaranteeing these rights is that the whole of Indian Union
in spite of being divided into number of States is really one unit, so far as the citizens of the Union are
concerned. Per MAHAJAN, J.
The purpose of Art. 19(1)(d) is to guarantee that there shall be no State barrier. It gives protection
against provincialism. Per DAS, J. Learned judge further held: "Our constitution cannot possibly give
to any of the citizens any right of movement in a foreign country and it was wholly superfluous to
specifically indicate this in the Constitution for that would have gone without saying. The words
"through the territory of India" are not used in connection with most of the other sub-clauses of clause
(1) of Art.19. Does such omission to indicate that our Constitution guarantee to its citizens freedom of
speech and expression, say, in Pakistan? Clearly not. Therefore, it was not necessary to use those
words in clause (d) to indicate that free movement in foreign countries was not being guaranteed".
Similar view was expressed by JUSTICE MUKHERJEE also.
In Maneka Gandhi v. UOI ,36 JUSTICE CHANDRACHUD said: "Article 19 confers freedom on Indian
citizens some of which by their language and nature are limited in their exercise by geographical
consideration. The right to move freely, throughout the territory of India and the right to reside in any
part of the territory of India which are contained in clause (d) and (e) of Art.19 are of this nature.
Learned judge further said: "Those rights (Art.19(1)(d) and (e)) are intended to bring in sharp focus the
unity and integrity of the country and quasi-federal structure. Their drive is directed against the
fissiparous theory that "sons of the soil" alone shall thrive, the soil being conditioned by the regional
and sub-regional consideration".
What Art. 19(1)(d) guarantees is the free right of alls citizens to go wherever they like in the Indian
territory without any kind of restriction whatsoever. They can move not merely from one State to
another, but from one place to another within the same State and what the Constitution lays stress is
that the entire Indian Territory is one unit so far as citizens are concerned. 37
The mere fact that, the road passes through the Army areas or the Cantonment Board, would not
change the nature of authorising the Army authorities to put restrictions, resulting in the inconvenience
to the general public and thereby, affecting their fundamental right under Art. 19(1)(d). 38
'Movement'
The right to freedom of movement as guaranteed under Art.19(1)(d) has been held to be specific or
particular right and it is distinct and separate from the general right of movement or locomotion which
is part of "personal liberty" protected under Art.21. In A.K. Gopalan v. State of Madras ,39 it was argued
that since the right to freedom of movement was an essential part of personal liberty, a law depriving
the petitioner of his personal liberty amounted to a restriction on his right to freedom of movement.
According to the petitioner, his detention in prison amounted to not only deprivation of his personal
liberty, but also his right to freedom of movement. The contention was rejected by majority of judges.
In that context, JUSTICE DAS was of the view that the purpose of Art.19(1)(d) was to secure a
specific and special right of Indian citizens to move freely throughout the territory of India and it was
an independent and additional right from the general right of free movement or locomotion emanating
from the freedom of person.
In regard to right to travel abroad, in Maneka Gandhi v. UOT ,40one of the questions considered was
whether the right to go abroad was covered by Art.19(1)(a) or (g) of the Constitution. It was held that
this right could not be regarded as included either in free speech and expression guaranteed under
Art.19(1)(a) or as part of right to carry on trade or business, profession calling guaranteed under
clause (g). The right to go abroad is not a guaranteed right under any clause of Art.19(1) of the
Constitution, and that being so, s.10(3) of Passport Act, 1967 which authorised imposition on the
restitution on the right to go abroad was not bad.
In Satwant Singh Sawhney v. Asst. Passport Officer ,41 it was declared by majority that the expression
"personal liberty" which occurred in Art.21 of the Constitution includes the right to travel abroad and
that no person could be deprived of that right except according to procedure prescribed by law. When
no law has been made by the State regulating or prohibiting the exercise of such right, the refusal of
 523

passport was in violation of Art.21. It was also held that since the discretion with the executive on the
matter of issuing passport was ill-channelised and arbitrary, it was also violative of Art.14.
The above decision was accepted by Government and the infirmities pointed out were rectified by the
enactment of Passport Act, 1967.
In Kharak Singh v. State of UP ,42 the Court held that the rights guaranteed under Art.19(1)(d) and Art.
21 were mutually exclusive. It was observed: "While Art.19(1)(d) deals with particular species or
attributes of freedom, 'personal liberty' in Art.21 takes in and comprises the residue".
In Satwant Singh's case,43 the Supreme Court, by a majority held that right to go abroad and return to
India was a necessary incidence of 'personal liberty' guaranteed under Art.21. CHIEF JUSTICE
SUBBA RAO after considering the decision in Kharak Singh's case,44 it was held: "This decision is a
clear authority for the position that 'liberty' in our Constitution bears the same comprehensive meaning
as given to the expression "liberty" by the 5 th and 14 th Amendment to American Constitution and the
expression "personal liberty" in Art.21 only excludes the ingredients of "liberty" enshrined in Art.19 of
the Constitution. In other words, the expression, "personal liberty" in Art. 21, takes in the right of
locomotion and to travel abroad, but the right to move throughout the territory of India is not covered
by it in as much as it is specifically provided in Art.19(1)(d)".
In USA, while the constitutional right of inter-State travel is virtually unqualified, the right to
international travel has been considered to be no more than an aspect of liberty protected by the 'due
process clause' of Fifth Amendment and as such this right can be regulated within the bounds of due
process.45

12.  It has held that 'movement' in this clause refers to the right to physical
movement and would not apply to mental restraint.46 Even assuming that it comprises a
right to 'privacy' in movement, a law providing for domiciliary visits by the Police may not
constitute an unreasonable restriction where it is directed against a 'habitual
criminal'.47The better view would be that an act of surveillance is not affront to personal
liberty under Art. 21, rather than on movement under Art. 19(1)(d).
16.  This right is infringed not only by expelling or removing 48 a person from one
part of India, but also by requiring him not to move out of a particular area. 49 Any such
restraint imposed upon the freedom of movement would be unconstitutional unless it can
be justified as a reasonable restriction on any of the grounds specified in Cl. (5) of Art.
19.50
What is guaranteed under Art. 19(1)(d) is a right "to move freely" throughout the territory
of India. The right to move denotes nothing more than a right of locomotion and in the
context of adverb "freely" would only connote that the freedom to move is without
restriction and is absolute, i.e., to move wherever one likes, whenever one likes and
however one likes subject to any valid law enacted or made under Clause (5).
The freedom guaranteed by Art. 19(1)(d) has reference to something tangible and
physical rather and not to the imponderable effect on the mind of a person which might
guide his action in the matter of movement or locomotion. [Majority view in Kharak Singh
v. State of U.P .]51
The freedom of movement in Clause (d) must be movement in a free country, i.e., in a
country where he can do whatever he likes, speak to whomsoever he wants, meet
people of his own choice without any apprehension, subject of course to the law of social
control. Assuming that Art. 19(1)(d) must be confined only to physical movement, its
combination with the freedom of speech and expression leads to the above conclusion.
[Minority view in Kharak Singh v. State of U.P .]52
11.  But, although an order of internment comes within the purview of Art. 19(5),
the consensus view regarding a law or order of 'preventive detention' is that its validity is
to be tested exclusively with reference to Art. 22. 53
CLAUSE (5): RESTRICTIONS UPON THE FREEDOM OF MOVEMENT
 524

What constitutes restriction upon the freedom of movement

A law constitutes a restriction upon the freedom of movement only if it imposes restrictions upon the
right of locomotion of the person physically, e.g., where a person is prevented from going into a
particular area,54 or removed from, one place to another or externed 55 from a State or other territory
altogether.
It follows that a law which provides for surveillance being exercised upon the movement of bad
characters, without interfering with the liberty of movement of such persons, does not constitute an
infringement of the right guaranteed by this sub-clause, 56 because it is not intended to protect mere
personal sensitiveness,57 or any adverse effect on the mind of a person which might guide his act ion
in the matter of locomotion.58 The minority view in that held that "all acts of surveillance result in a
close observation of a suspect's movement which infringes Art.19(1)(d). If a man is shadowed, his
movements are constricted. He can move physically, but it can only be a movement of an automation".
For the same reason, there is no infringement of the right guaranteed by the present sub-clause by
'domiciliary visits' made by the Police, i.e., visits made by the police to a suspect's residence, with
authority to open the premises and search it for the purpose of ascertaining his presence in the
house.59 Even assuming that it comprises a right to 'privacy' in movement, a law providing for
domiciliary visits by the Police may not constitute an unreasonable restriction where it is directed
against a 'habitual criminal'.60 In that case, the Court said that police surveillance has to be restricted to
such person only against whom reasonable materials exist to induce the opinion that "they show a
determination to lead a life of crime" - crime in this context being confined to such as involving public
peace or security only and if they are dangerous to security risks. Domiciliary visits and secret
picketing by the police should be restricted to the rarest cases of danger to the community security
and should not be resorted to as a routine follow up at the end of a conviction or release from prison
or at the whim of a police officer. The court administered a warning that these old regulations "ill-
accord with the essence of personal freedom verge perilously near unconstitutionality and therefore
had to be revised". The decision in Govi5d's case,61 has rectified the narrow interpretation held in
Kharak Singh's case,62

13.  The following have been held to constitute restrictions upon the right
guaranteed by Article 19(1)(d):
13. An order of externment.63 The word "extern" is derived from Latin root
"Externus" meaning "outward" as opposed to the legal term "Intern" which means
"to confine within the limits of a country, district or place; to oblige to, reside within
prescribed limits".64 The provision relating to externment within the permissive
Clause (5) of Art. 19, was held as not unreasonable in Gurbachan Singh v. State
of Bombay .65 Regarding the validity of the order, the Court said that the relevant
provision envisages two kinds of extern-ment orders. One was an order directing
the externee's removal from Greater Bombay and the other was an order of
removal from the State of Bombay. In the former case, the order has to specify
the place within where the externee had to go. In the latter case, such a
specification was not necessary, nor was it within the competence of the authority.
A person suffering from infectious disease e.g., AIDS, may be prevented from
moving about and spreading disease and regulations for his isolation and
segregation may be introduced. Isolation, undoubtedly, has several serious
consequences. It is an invasion upon the liberty of the person. It can affect a
person very adversely in many matters including economic and social
ostracization. But the individual's right has to be balanced with public interest. In
such case, personal interest has to yield to public interest. It is also in the interest
of the patient.66
In Hari Khemu Gawali v. Dy. Commr. of Police ,67 it was observed, (referring to
Sections 57 of Bombay Police Act ), "The section is plainly meant to prevent a
person who has been proved to be a criminal from acting in a way which may be
a repetition of his criminal propensities. ... The law is based on the principle that it
 525

is desirable in the larger interests of society, that the freedom of movement and
residence of comparatively fewer members of the people should be restrained, so
that the majority may move and live in peace and harmony and carry on their
avocations untrammelled, by any fear of threat or violence to the person or
property".
It was further held in that case that provisions relating to externment do not make
any artificial discrimination between one class of persons and another, viz.,
persons dealt with under the ordinary law and those dealt with under the special
provisions relating to externment. The discrimination, if any, is based upon a
reasonable clarification which is within the competence of the Legislature to
make. This view has been affirmed by the Supreme Court in Bhagubhai Dulabhai
Bhandari v. District Magistrate, Thana .68
The Supreme Court has also held in another context that an impugned order to
be reasonable must not place a blanket ban on the citizen's fundamental right,
must be for a limited duration and provide a forum of appeal to challenge the
order. The Court cannot, however, question the subjective satisfaction of the
authorities empowered to issue order of externment, if the correct procedure laid
down in the law has been followed.69
13. An order requiring a person not to leave his place of residence or to reside
at a specified place other than his place of ordinary residence. 70In that case, the
Court found that sufficient procedural safeguards for exercising the power to order
externment, but the act was struck down as unreasonable mainly on the ground
that it required a person to reside at any place, without giving him a hearing
before selecting the place for him. A place could be selected for him where he
might not have any residential accommodation or means of subsistence. There
was no provision for providing him with residence or means of livelihood in the
place selected for him for his residence.
In another case, the Court emphasised that laws pertaining to externment have to
be strictly construed, for, an order of externment of a person results in "harakari
and psychic distress". Mere apprehension by police is not enough to pass an
order of externment. There must be clear and present danger based upon
credible material which makes the movement and acts of the person alarming or
dangerous or fraught with violence. Natural justice must also be complied with. 71
10. Even though a prostitute has a fundamental right to move freely throughout
India, but if in a particular locality the vice of prostitution is endemic, degrading
those who live by prostitution and demoralising others who come into contact with
them, the Legislature may have to impose severe restriction on the right of the
prostitute to move about and to live in a house of her choice and in certain cases,
provide for deporting worst of them from the area of operation. 72 See also Kamla
China v. State; 73Seetharamamma v. Sambasiva Rao ;74Shama Bai v. U.P .,75
wherein it was held that Suppression of Immoral Traffic Act in Women and Girls
Act imposes a reasonable restriction. Even if the Act violated the fundamental
right under Art. 19(1)(g), the prohibition contained is protected in Art. 23 which
prohibits traffic in human beings and the same will prevail.
The police in the wake of threatened mass agitations which are likely to lead to
breach of public peace are entitled in the discharge of their duty to impose
reasonable restraints on the physical movement of members of the public in order
to the protection of public property and the avoidance of needless inconvenience
to other citizens in their lawful pursuits. But all such restraints on personal liberty,
if at all, have to be commensurate with the object which furnishes their
justification. They must be minimal and cannot exceed the constraints of the
particular situation either in nature or in duration and they cannot be used as
 526

engines of oppression, prosecution, harassment or the like maintaining the

sanctity of the person and his privacy.76
In the case of agricultural reform, to confer the right to cultivation of the land to the
agriculturists, with a view to improving the economic and social conditions of the
peasants, and to ensure the full and efficient use of the land for agriculture, a
restriction on purchase of land by a person beyond a radius of miles of his village
is reasonable under Art. 19(5) is valid.77
Provision in West Bengal (Prevention of Violent Activities) Act, 1970, i.e., causing
insult to Indian National Flag or to any other object of public veneration, whether
by mutilating, damaging, burning, defiling, destroying or otherwise or instigating
any person to do so, which warrants such a person to be detained on the ground
that the same is prejudicial to the security of the State or the maintenance of
public order was held valid and a reasonable restriction on the exercise of
freedom of movement under Art. 19(1)(d).78
A rule in Motor Vehicles Act which mandates that persons driving a two wheeler
should wear crash helmets does not curtail the freedom of movement. It helps the
driver of a two wheeler vehicle to drive the vehicle in exercise of his freedom of
movement without being subjected to a constant apprehension of a fatal head
injury, if any accident takes place. There is no fundamental right against any act
aimed at doing some public good. Even assuming that wearing a helmet puts a
restriction on the fundamental right under Art. 19(1)(d), such restriction being in
the interest of general public is reasonable.79
Power given to authorities to direct an individual to remove himself from the
locality with intention to dispersal of gangs and removal of convicted persons is
reasonable.80
In that case, it was contended that absence of any provision for the constitution of
an independent tribunal to consider the representation of the externee would
make the legislation unconstitutional. The Court did not accept the argument after
pointing out the distinction between Art.19(5) and Art.22(4). The Court said: "It
cannot be, and has not been laid down as a universal rule that unless there is a
provision for such an advisory board, such a legislation would necessarily be
condemned as unconstitutional. The very fact that the Constitution in Art.22(4)
has made specific provision for an advisory board, but has not made such a
provision in Art.19 would answer the question. Hence it cannot be said that the
existence of an advisory board is a sine qua non of constitutionality of
legislation...". If the authorities who are responsible to maintain law and order
bona fide and on the basis of antecedents of a particular person, that his
presence or participation in a meeting will affect communal feelings and harmony,
they are entitled to prevent that person either from participating in the meeting
and also from entering the particular district. In such cases, quick and swift as
well as effective act ion may have to be taken and there is no necessity to give
prior notice.81 Disturbances of public tranquillity, riots and affray lead to subversion
of public order unless they are prevented in time. Nuisances dangerous to human
life, health and safety have to be abated and prevented. Section 144 Cr.P.C.
empowers the authorities which warrant such a person from serious disturbance
of a grave character. The section is directed against those who attempt to prevent
the exercise of legal rights by others or imperil the public safety and health. If that
be so, the matter must fall within the restrictions which the Constitution itself
visualises as permissible in the interest of public order, or in the interest of
general public.82 Where a person is found to be operating within the market
without obtaining a licence as provided under Gujarat Agricultural Products
Markets Act, he is liable to be evicted from that place. Such an act ion by the
authorities is disciplinary in character and its exercise is restricted to the precincts
 527

of the market and only if it is found that he is found to be operating without a

licence. Such a provision is reasonable.83
In Bhagubhai v. Dt. Magistrate ,84 Sections 56 of Bombay Police Act , 1951 which
authorised certain specified authorities to extern person on certain grounds
specified thereunder was held valid. In Nawab Khan v. State of Gujarat ,85 an
externment order passed was declared a nullity since the order was passed
without following the doctrine audi alteram partem. In that case, the Court said:
"Where hearing is obligatory by a statute which affects the fundamental right of a
citizen, the duty to give hearing sounds a constitutional requirement and failure to
comply with such a duty is fatal. ...". But in Bharat Singh v. State of MP ,86 a similar
statute, but which did not provide for hearing was held valid. The order was
confirmed in appeal reported in State of MP v. Bharat Singh ,87.
Any restriction to promote the economic interest of weaker sections of the society
under Art. 46 is presumed to be reasonable. The traditional fishermen belong
undoubtedly to weaker sections and are below the poverty line. To protect their
interest and also in the interest of preservation and availability of fish, a
prohibition for certain kinds of fishing boats going for bottom-trawling beyond
territorial waters is held to be reasonable.88

17.  But not an order simply requiring a person to notify his movements or to
report himself to a specified authority.89
Every person who is travelling has a right to carry money with him. However, when such right is
subject to verification or seizure by intelligence authorities, to ensure that the said money is not
intended for illegal act ivities, bona fide measures taken in the public interest to provide public safety
or to prevent circulation of black money is not interference with personal liberty or freedom of
movement. In such a situation, the right of the person has to yield to public interest. It was also held
that when security protocol are in place, certain hardships and inconvenience is inevitable. Air
passengers should accept them with grace, patience and discipline. The action of authorities did not
violate Art.19(1)(d).90 In that case, the court took judicial notice of the fact that transportation of large
sums of money is associated with illegal act ivities was taking place in the country and the authorities
are entitled to fully satisfy that money so transported is not intended to be used for illegal purposes.
Grounds of Restriction
The freedom of movement or of residence is subject to the restrictions which the State may
reasonably impose on either of two grounds--(i) interests of the general public (ii) interests of any
Scheduled Tribe, and not on any other ground.91
I. Interests of the general public
In Cl. (5) of Art. 19, instead of particularising the grounds of restriction, the omnibus expression 'in the
interests of the general public' has been used. This expression embraces not only public security,
public order or morality92 but also authorises the State to impose restrictions on grounds of social and
economic policy or on the ground of the common good, e.g., securing the objects mentioned in the
Directive Principles of the Constitution.93
The phrase "public interest" has never been defined. But it is well settled that it is not confined within
narrow limits. LORD DENNING MR said in London Artists Limited v. Littler ,94 "Whenever a matter is
such as to affect people at large, so that they may be legitimately interested in, or concerned at, what
is going on, or what may happen to them or others, then it is a matter of public interest on which
everyone is entitled to make their comments".95 Public interest, a matter of public or general interest
does not mean that which is interesting as gratifying curiosity or love of information or amusement, but
that in which a class of the community have a pecuniary interest or some interest by which their legal
right or liabilities are affected.96 The expression "public interest" is not capable of a precise definition
and has not a rigid meaning and is elastic and takes its colour from the statute in which it occurs, the
 528

concept varying with time and State for society and its needs. Then what is "public interest" today may
not be so considered a decade later. 97
The expression "in the interest of the general public" is vague. The expression, as explained by
Supreme Court of America on a similar expression held: "The public welfare is a broad and
inconclusive concept. The moral, social, economic and physical being of the community is one part of
it, the political well-being another.98
An externment order was challenged on the ground that it is not a reasoned order. Rejecting the
challenge, it was observed that "there is a certain brand of lawless elements in society whom it is
impossible to bring to book by established methods of judicial trial because the legal evidence
essential for conviction is impossible to obtain. For fear of reappraisals, witnesses are unwilling to
depose in public against such characters. So, in the externment order against such a person, and in
the disposal of appeal against that order, the concerned authority is not bound to give reasons or write
a reasoned order. The externee is only entitled to be informed of the general nature of the material
allegations.99 An order of externment is different from a preventive detention order and must always be
restricted to the area of illegal activities of the externee. 100
21 SCW. (3rd Ed.), p. 219.

22 Gopalan v. State of Madras, (1950) SCR 88 (258-9) : AIR 1950 SC 27.

23 See Art. 13 of the Universal Declaration, of Human Rights, f.n. 1, ante.

24 M.P. Jain, Indian Constitutional Law, 7th Edn. 2014, at p. 1060.

25 Corfield Coryell, (1823) 4 Wash CC 371 (380).

26 State of Maharashtra v. Prabhakar, AIR 1966 SC 424 (426) : (1966) 1 SCR 702; Kharak Singh v. State of U.P., A
1963 SC 1295 (1300) : (1964) 1 SCR 332.

27 AIR 1978 SC 597 : (1978) 1 SCC 248.

28 Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 : AIR 2005 SC 2920; National Human Rights
Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742 : AIR 1996 SC 1234.

29 Khare v. State of Delhi, (1950) SCR 519 (531) : AIR 1950 SC 211.

30 Gurbachan Singh v. State of Bombay, AIR 1952 SC 221 : 1952 SCR 337.

31 State of Madras v. Natarajan, AIR 1969 SC 147 : (1968) 3 SCR 829; Lakshman v. State of M.P., AIR 1983 SC 656 :
(1983) 3 SCC 275 (paras. 2-3).

32 Vide C 6, Vol. L, pp. 228, 234 ff.

33 A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : (1950) SCR 88.

34 Bird v. Jones, (1872) 7 QB 742 (Per FAZL ALI, J.).

35 AIR 1950 SC 27 : (1950) SCR 88.

36 AIR 1978 SC 597 : (1978) 1 SCC 248.

37 N.B. Khare (Dr.) v. State of Delhi, AIR 1950 SC 211 : (1950) SCR 519.

38 Nitin G. Khot v. Station Commandent, Belgaum, AIR 1998 Kant 360.

39 AIR 1950 SC 27 : (1950) SCR 88.

40 AIR 1978 SC 597 : (1978) 1 SCC 248.

41 AIR 1967 SC 1836 : (1967) 3 SCR 525.

42 AIR 1963 SC 1295 : (1964) 1 SCR 332.

43 AIR 1967 SC 1836 : (1967) 3 SCR 525 (supra).

 529

44 AIR 1963 SC 1295 : (1964) 1 SCR 332 (supra).

45 California v. Aznavorian, (1978) 439 US 170.

46 Kharak Singh v. State of M.P., AIR 1963 SC 1295 : (1964) 1 SCR 332 (paras, 14, 18, 19, 20).

47 Govind v. State of M.P., AIR 1975 SC 1378 : (1975) 2 SCC 148 (para. 31).

48 Khare v. State of Delhi, (1950) SCR 519 (531) : AIR 1950 SC 211.

49 State of M.P. v. Bharat Singh, AIR 1967 SC 1170 (1172)(CB) : (1967) 2 SCR 454.

50 State of M.P. v. Bharat Singh, AIR 1967 SC 1170 (1172)(CB) : (1967) 2 SCR 454; State of M.P. v. Baldeo, AIR 1961
SC 293 : (1961) 1 SCR 970.

51 Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1964) 1 SCR 332.

52 Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1964) 1 SCR 332.

53 Haradhon Saha v. State of W.B., AIR 1974 SC 2154 : (1975) 3 SCC 198 (paras. 20, 31).

54 Cf. Indra v. State of W.B., AIR 1952 Cal 61 [e.g., cordoning of a certain area].

55 State of U.P. v. Kausaliya, AIR 1964 SC 416 (422) : (1964) 4 SCR 1002 [overrulingBegum v. State, AIR 1964 SC
416].

56 Tirlok Singh v, Supdt. of Police, AIR 1959 Punj 323.

57 Kharak Singh v. State of M.P., AIR 1963 SC 1295 : (1964) 1 SCR 332 (paras, 14, 18, 19, 20).

58 Kharak Singh v. State of M.P., AIR 1963 SC 1295 : (1964) 1 SCR 332 (paras, 14, 18, 19, 20).

59 Kharak Singh v. State of M.P., AIR 1963 SC 1295 : (1964) 1 SCR 332 (paras, 14, 18, 19, 20).

60 Govind v. State of M.P., AIR 1975 SC 1378 : (1975) 2 SCC 148 (para. 31).

61 AIR 1975 SC 1378 : (1975) 2 SCC 148 (supra).

62 AIR 1963 SC 1295 : (1964) 1 SCR 332 (supra).

63 Khare v. State of Delhi, (1950) SCR 519 (531); State of M.P. v. Baldeo, AIR 1961 SC 293 : (1961) 1 SCR 970.

64 Shorter Oxford English Dictionary.

65 Gurbachan Singh v. State of Bombay, AIR 1952 SC 221: (1952) SCR 737.

66 Lucy R D'Souza v. State of Goa, AIR 1990 Bom 355.

67 Hari Khemu Gawali v. Dy. Commr. of Police, AIR 1956 SC 559 : (1956) SCR 506.

68 AIR 1956 SC 585 : (1956) SCR 533.

69 See the Article - "Operation of Special Laws relating to Externment of Bad Characters", Journal of Indian Law
Institute, Vol. II, p. 1.

70 State of M.P. v. Bharat Singh, AIR 1967 SC 1170 (1172) C.B.

71 Prem Chand v. UOI, AIR 1981 SC 613 : (1981) 1 SCC 639.

72 State of U.P. v. Kaushailya, AIR 1964 SC 416 : (1964) 4 SCR 1002.

73 Kamla China v. State, AIR 1963 Punjab 36.

74 Seetharamamma v. Sambasiva Rao, AIR 1964 A.P. 400.

75 Shama Bai v. U.P., AIR 1959 Allahabad 57.

76 Rupinder Singh Sodhi v. Union of India, AIR 1983 SC 65 : (1983) 1 SCC 140.
 530

77 Jogibhai Mangal Bhai Tandel v. Mamlatdoor & Agricultural Law Tribunal, 1995 (Supp-1) SCC 748.

78 State of West Bengal v. Ashok Dey, AIR 1972 SC 1660 : (1972) 1 SCC 199.

79 Ajay Canu v. Union of India, AIR 1988 SC 2027 : (1988) 4 SCC 156. See alsoK. Veeresh Babu v. Union of India,
AIR 1994 Kar 56.

80 Hari Khemu Gawali v. Dy. Commr. of Police, AIR 1956 SC 559 : (1956) SCR 506.

81 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.

82 Madhu Limaye v. Sub Divisional Magistrate, Monghyr (1970) 3 SCC 746: AIR 1971 SC 2486 : (1971) 2 SCR 711.

83 Jan Mohammad Noor Mohamad Bagban v. State of Gujarat, AIR 1966 SC 385: (1966) 1 SCR 505.

84 AIR 1956 SC 585 : (1956) SCR 533.

85 AIR 1974 SC 1471 : (1974) 2 SCC 121.

86 AIR 1964 MP 175.

87 AIR 1967 SC 1170.

88 State of Kerala v. Joseph Antony, (1994) 1 SCC 301 ; Kerala Swathanthra Malayala Thozhilali Federation v. Kerala
Trawlnet Boat Operators' Association, (1994) 5 SCC 28: JT (1994) 7 SCC 33.

89 Bharat Singh v. State of M.P., AIR 1964 175, affd. by State of M.P. v. Bharat, AIR 1967 SC 1170.

90 Rajendran Chingaravelu v. R.K. Mishra, (2010) 1 SCC 457 : (2009) 15 JT 251.

91 Bankey v. Jhingan, AIR 1952 Pat 166.

92 Jeshinghbhai v. Emp., AIR 1950 Bom 363 (357)(FB) .

93 Krishnamurthy v. Venkateswaran, AIR 1952 Mad 11; In this context, see Author's Shorter Constitution of India , 10th
Edn., p. 239, footnote 67.

94 London Artists Limited v. Littler, (1969) 2 All ER 193.

95 See alsoReynolds v. Times Newspaper, (1999) 4 All ER 609.

96 SeeAshok Kumar Pandey v. State of WB, AIR 2004 SC 280 : (2004) 3 SCC 349; see alsoB. Singh v. UOI, AIR 2004
SC 1923 : (2004) 3 SCC 363.

97 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 : (1951) SCR 1056.

98 Day-Brite Lighting Inc. v. Missouri, (1952) 342 US 421.

99 State of Maharashtra v. Salem Hasan Khan, AIR 1989 SC 1304 : (1989) 2 SCC 316.

100 Lt. Governor of NCT v. Ved Prakash, (2006) 5 SCC 228.

The Supreme Court has also held in another context that an impugned order to be reasonable must
not place a blanket ban on the citizen's fundamental right, must be for a limited duration and provide a
forum of appeal to challenge the order. The Court cannot, however, question the subjective
satisfaction of the authorities empowered to issue order of externment, if the correct procedure laid
down in the law has been followed.1
(ii) An order requiring a person not to leave his place of residence or to reside at a specified place
other than his place of ordinary residence.2In that case, the Court found that sufficient procedural
safeguards for exercising the power to order externment, but the act was struck down as
unreasonable mainly on the ground that it required a person to reside at any place, without giving him
a hearing before selecting the place for him. A place could be selected for him where he might not
 531

have any residential accommodation or means of subsistence. There was no provision for providing
him with residence or means of livelihood in the place selected for him for his residence.
In another case, the Court emphasised that laws pertaining to externment have to be strictly
construed, for, an order of externment of a person results in "harakari and psychic distress". Mere
apprehension by police is not enough to pass an order of externment. There must be clear and
present danger based upon credible material which makes the movement and acts of the person
alarming or dangerous or fraught with violence. Natural justice must also be complied with. 3
(iii) Even though a prostitute has a fundamental right to move freely throughout India, but if in a
particular locality the vice of prostitution is endemic, degrading those who live by prostitution and
demoralising others who come into contact with them, the Legislature may have to impose severe
restriction on the right of the prostitute to move about and to live in a house of her choice and in
certain cases, provide for deporting worst of them from the area of operation. 4 See also Kamla China
v. State; 5Seetharamamma v. Sambasiva Rao ;6Shama Bai v. U.P .,7 wherein it was held that
Suppression of Immoral Traffic Act in Women and Girls Act imposes a reasonable restriction. Even if
the Act violated the fundamental right under Art. 19(1)(g), the prohibition contained is protected in Art.
23 which prohibits traffic in human beings and the same will prevail.
The police in the wake of threatened mass agitations which are likely to lead to breach of public peace
are entitled in the discharge of their duty to impose reasonable restraints on the physical movement of
members of the public in order to the protection of public property and the avoidance of needless
inconvenience to other citizens in their lawful pursuits. But all such restraints on personal liberty, if at
all, have to be commensurate with the object which furnishes their justification. They must be minimal
and cannot exceed the constraints of the particular situation either in nature or in duration and they
cannot be used as engines of oppression, prosecution, harassment or the like maintaining the sanctity
of the person and his privacy.8
In the case of agricultural reform, to confer the right to cultivation of the land to the agriculturists, with
a view to improving the economic and social conditions of the peasants, and to ensure the full and
efficient use of the land for agriculture, a restriction on purchase of land by a person beyond a radius
of miles of his village is reasonable under Art. 19(5) is valid. 9
Provision in West Bengal (Prevention of Violent Activities) Act, 1970, i.e., causing insult to Indian
National Flag or to any other object of public veneration, whether by mutilating, damaging, burning,
defiling, destroying or otherwise or instigating any person to do so, which warrants such a person to
be detained on the ground that the same is prejudicial to the security of the State or the maintenance
of public order was held valid and a reasonable restriction on the exercise of freedom of movement
under Art. 19(1)(d).10
A rule in Motor Vehicles Act which mandates that persons driving a two wheeler should wear crash
helmets does not curtail the freedom of movement. It helps the driver of a two wheeler vehicle to drive
the vehicle in exercise of his freedom of movement without being subjected to a constant
apprehension of a fatal head injury, if any accident takes place. There is no fundamental right against
any act aimed at doing some public good. Even assuming that wearing a helmet puts a restriction on
the fundamental right under Art. 19(1)(d), such restriction being in the interest of general public is
reasonable.11
Power given to authorities to direct an individual to remove himself from the locality with intention to
dispersal of gangs and removal of convicted persons is reasonable. 12
In that case, it was contended that absence of any provision for the constitution of an independent
tribunal to consider the representation of the externee would make the legislation unconstitutional. The
Court did not accept the argument after pointing out the distinction between Art.19(5) and Art.22(4).
The Court said: "It cannot be, and has not been laid down as a universal rule that unless there is a
provision for such an advisory board, such a legislation would necessarily be condemned as
unconstitutional. The very fact that the Constitution in Art.22(4) has made specific provision for an
advisory board, but has not made such a provision in Art.19 would answer the question. Hence it
cannot be said that the existence of an advisory board is a sine qua non of constitutionality of
 532

legislation...". If the authorities who are responsible to maintain law and order bona fide and on the
basis of antecedents of a particular person, that his presence or participation in a meeting will affect
communal feelings and harmony, they are entitled to prevent that person either from participating in
the meeting and also from entering the particular district. In such cases, quick and swift as well as
effective act ion may have to be taken and there is no necessity to give prior notice. 13 Disturbances of
public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time.
Nuisances dangerous to human life, health and safety have to be abated and prevented. Section 144
Cr.P.C. empowers the authorities which warrant such a person from serious disturbance of a grave
character. The section is directed against those who attempt to prevent the exercise of legal rights by
others or imperil the public safety and health. If that be so, the matter must fall within the restrictions
which the Constitution itself visualises as permissible in the interest of public order, or in the interest of
general public.14 Where a person is found to be operating within the market without obtaining a licence
as provided under Gujarat Agricultural Products Markets Act, he is liable to be evicted from that place.
Such an act ion by the authorities is disciplinary in character and its exercise is restricted to the
precincts of the market and only if it is found that he is found to be operating without a licence. Such a
provision is reasonable.15
In Bhagubhai v. Dt. Magistrate ,16 Sections 56 of Bombay Police Act , 1951 which authorised certain
specified authorities to extern person on certain grounds secified thereunder was held valid. In Nawab
Khan v. State of Gujarat ,17 an externment order passed was declared a nullity since the order was
passed without following the doctrine audi alteram partem. In that case, the Court said: "Where
hearing is obligatory by a statute which affects the fundamental right of a citizen, the duty to give
hearing sounds a constitutional requirement and failure to comply with such a duty is fatal. ...". But in
Bharat Singh v. State of MP ,18 a similar statute, but which did not provide for hearing was held valid.
The order was confirmed in appeal reported in State of MP v. Bharat Singh ,19.
Any restriction to promote the economic interest of weaker sections of the society under Art. 46 is
presumed to be reasonable. The traditional fishermen belong undoubtedly to weaker sections and are
below the poverty line. To protect their interest and also in the interest of preservation and availability
of fish, a prohibition for certain kinds of fishing boats going for bottom-trawling beyond territorial waters
is held to be reasonable.20

18.  But not an order simply requiring a person to notify his movements or to
report himself to a specified authority.21
Every person who is travelling has a right to carry money with him. However, when such right is
subject to verification or seizure by intelligence authorities, to ensure that the said money is not
intended for illegal act ivities, bona fide measures taken in the public interest to provide public safety
or to prevent circulation of black money is not interference with personal liberty or freedom of
movement. In such a situation, the right of the person has to yield to public interest. It was also held
that when security protocol are in place, certain hardships and inconvenience is inevitable. Air
passengers should accept them with grace, patience and discipline. The act ion of authorities did not
violate Art.19(1)(d).22 In that case, the court took judicial notice of the fact that transportation of large
sums of money is associated with illegal activities was taking place in the country and the authorities
are entitled to fully satisfy that money so transported is not intended to be used for illegal purposes.
Grounds of Restriction
The freedom of movement or of residence is subject to the restrictions which the State may
reasonably impose on either of two grounds--(i) interests of the general public (ii) interests of any
Scheduled Tribe, and not on any other ground.23

20.  Interests of the general public

In Cl. (5) of Art. 19, instead of particularising the grounds of restriction, the omnibus expression 'in the
interests of the general public' has been used. This expression embraces not only public security,
public order or morality24 but also authorises the State to impose restrictions on grounds of social and
 533

economic policy or on the ground of the common good, e.g., securing the objects mentioned in the
Directive Principles of the Constitution.25
The phrase "public interest" has never been defined. But it is well settled that it is not confined within
narrow limits. LORD DENNING MR said in London Artists Limited v. Littler ,26 "Whenever a matter is
such as to affect people at large, so that they may be legitimately interested in, or concerned at, what
is going on, or what may happen to them or others, then it is a matter of public interest on which
everyone is entitled to make their comments".27 Public interest, a matter of public or general interest
does not mean that which is interesting as gratifying curiosity or love of information or amusement, but
that in which a class of the community have a pecuniary interest or some interest by which their legal
right or liabilities are affected.28 The expression "public interest" is not capable of a precise definition
and has not a rigid meaning and is elastic and takes its colour from the statute in which it occurs, the
concept varying with time and State for society and its needs. Then what is "public interest" today may
not be so considered a decade later. 29
The expression "in the interest of the general public" is vague. The expression, as explained by
Supreme Court of America on a similar expression held: "The public welfare is a broad and
inconclusive concept. The moral, social, economic and physical being of the community is one part of
it, the political well-being another.30
An externment order was challenged on the ground that it is not a reasoned order. Rejecting the
challenge, it was observed that "there is a certain brand of lawless elements in society whom it is
impossible to bring to book by established methods of judicial trial because the legal evidence
essential for conviction is impossible to obtain. For fear of reappraisals, witnesses are unwilling to
depose in public against such characters. So, in the externment order against such a person, and in
the disposal of appeal against that order, the concerned authority is not bound to give reasons or write
a reasoned order. The externee is only entitled to be informed of the general nature of the material
allegations.31An order of externment is different from a preventive detention order and must always be
restricted to the area of illegal act ivities of the externee. 32
The right under this clause can be enjoyed only by citizens and that too only by a free citizen. If a
person is in detention under a valid law, he cannot claim a right to free movement. The State may
impose reasonable restriction on the exercise of these rights either in the interest of general public or
for the protection of the interests of Scheduled Tribe. 33
In Ahmedabad Municipal Corporation v. Nawab Khan ,34 the Supreme Court, in order to prevent the
continuing influx of rural poor to urban areas, recommended infrastructural facilities for rural areas and
housing schemes in urban areas for the poor, Scheduled Castes (SCs), Scheduled Tribes (STs) and
Other Backward Classes (OBCs).
Amongst the existing Indian laws, the Official Secrets Act , 1923 may be cited as an instance of the
restriction on free movement, imposed in the interest of the general public. Under the Act, a person is
denied access to "prohibited areas". Section 2 of the Act defines a "prohibited place". A person, who
approaches, inspects, passes over or is in the vicinity of or enters into any prohibited place, commits
an offence under the Act. These restrictions are necessary to preserve the security of the State. The
interests of the general public embrace, public security, public order and public morality.
Section 7 of the Influx from Pakistan (Control) Act, 1949 was declared unconstitutional and violative of
Art. 19(1)(d) and (e) since, it enabled deportation on the ground that a person had returned to India
without a permit. It was held that such an extreme penalty could not be imposed for breach of
regulation.35 It was held that the punishment was utterly disproportionate to the gravity of the offence.
Restriction on free movement by habitual offenders was held reasonable. 36Section 26 of the
Hyderabad City Police Act , 1348 which contained provisions for making a person to reside in a
particular place was upheld.37 A conviction for entering into India by an Indian citizen from a foreign
country without a passport and for violating Passport Rules was held valid in Abdul Rahim v. State of
Bombay .38
Illustrations of restrictions upon the freedom of movement under the different public interests may now
be given:
 534

49i)  Public Health.--It is obvious that, for the prevention of the spread of
contagious diseases like plague39 regulations for removal and segregation may be made.
For similar reasons, the movement of infected persons by public conveyances, such as
railways, may be restricted.40 Thus, Sections 71 of the Indian Railways Act (IX of 1890)
(Now repealed by the Railways Act , 1989 (24 of 1989)) restricts the right of a person,
suffering from infectious or contagious disease, to travel by rail. 41 For the same reason,
even healthy persons may be prevented from visiting infected areas. 42
Removal of prostitutes from particular areas may also be justified on grounds of public health or
morals.43
Sections 129 of the Motor Vehicles Act , 1988 which insists on wearing a protective head gear by
riders of two wheelers does not violate Art. 19(1)(d) as it is a reasonable restriction. 44
U.S.A.
A State, in the United States, may, in the exercise of its 'police powers,' exclude from its limits
convicts, paupers, idiots and lunatics, and persons likely to become a public charge, as well as
persons afflicted by contagious or infectious diseases.45 However, a State cannot prohibit the influx of
healthy persons, seeking employment within its borders, on the ground that they would become a
charge on the public treasury.46The highways within and through a State are constructed by the State
itself which has full power to provide all proper regulations of police to govern the act ion of persons
using them, and to make from time to time such alteration in those ways as the proper authorities shall
deem proper. A very common regulation is that parties meeting shall turn to the right; the propriety of
which none can question. So, the speed of travel may be regulated with a view to safe use and
general protection, and to prevent public nuisance.47 The learned author T.M. COOLEY further says,48
that, "the State has the same power of regulating the speed and general conduct of ships or other
vessels navigating the water highways; that, it has to regulate the speed and conduct of persons and
vehicles upon the ordinary highway; subject always to the restrictions that its regulations must not
come in conflict with any regulation established by Congress for the foreign commerce or between the
States".
It is an offence if a person without lawful authority or excuse in any way wilfully obstructs the free
passage along a highway under the Highways Act, 1980 (UK). An obstruction in this sense is caused
where a meeting or assembly is held on the highways (which, for this purpose includes, the pavement
as well as the road). It is no defence that the obstruction affected only part of the highway, leaving the
other part clear. Nor is it a degree that the arrested person was only one of a number of persons
causing the obstruction or that the defendant believed that he was entitled to hold meetings at the
place in question or that, meetings have been held before. The offence thus, gives wide powers to the
police to disperse what may be peaceful assembly and it has been widely used. Following the
decision in DPP v. Jones ,49 however, it is now recognised that a highway may be lawfully used for
some political purpose where this does not interfere with the primary purpose of the highway, which is
passage and re-passage. Such use will provide a lawful excuse to any charge of obstruction. 50
(ii) Public security or safety.--In the interests of the safety of the State, restrictions may be imposed
upon the access to 'protected places', such as forts, arsenals and other strategic areas, 51or act ual or
potential war zones.52
On the same ground, the protection of the armed forces residing in a Cantonment from the evil
influences of disorderly persons may require zonal restrictions upon the freedom of movement of
ordinary persons.53
In England, it has been held54 that in so far as the Crown's prerogative has not been curtailed by a
statute, the Crown's decision with respect to the following matters, whether, in times of war or in
unfettered peace, is not open to judicial review--.

73a)  what acts are necessary for the maintenance of the national security; 55
76b)  the disposition and armament of the military, naval and air forces. 56
 535

When, therefore, the members of an anti-nuclear demonstration were prevented from entering into a
protected airfield, they were not allowed to show that the immobilisation of the airfield would, in fact,
be beneficial to the safety of the State.57
(iii) Public Order.--Where the presence of persons of a dangerous character is likely to jeopardise the
peace and safety of the citizens residing in a particular area, such persons may be removed from that
area.58 In Gurvachan Singh's case,59 the impugned order directed the petitioner to remove himself from
Greater Bombay and go to his native place at Amritsar by rail within two days. As regards the validity
of the impugned order, the court ascertained the real intention of the Commissioner of Police who
made the order under Sections 27(1) of the City of Bombay Police Act , 1902. The Court held that
the provision envisaged two kinds of externment orders. One was an order directing the externee's
removal from Greater Bombay and the other was an order requiring his removal from the State of
Bombay.
In the former case, the order has to specify within the State where the externee had to go. In the latter
case, such a specification was neither necessary nor was it within the competence of the concerned
authority. In that case, in spite of the working in the order, the court held that the real intention of the
Commissioner of Police was to extern the petitioner only from Greater Bombay. In spite of this holding,
an order of externment was held to be valid.
Similarly, restrictions may be imposed upon the movement of habitual offenders, 60 or persons
endangering harmony between different classes or sections of the community 61 and generally, for
preventing any criminal act .62 In this wider sense, the rendition of a person for trial in a foreign country,
under the law of extradition is also in the interests of the general public. 63
In Hari v. Dy. Commissioner ,64 the Supreme Court observed--
"The section (s. 57 of the Bombay Police Act , 1951) is plainly meant to prevent a person who has
been proved to be a criminal from acting in a way which may be a repetition of his criminal
propensities... The law is abased on the principle that it is desirable in the larger interests of society,
that the freedom of movement and residence of a comparatively fewer number of people should be
restrained so that the majority may move and live in peace and harmony and carry on their peaceful
evocations untrammelled by any fear or threat of violence to their person or property". 65
Such precautionary measures to meet threats to public safety and tranquillity are covered by the
expression 'in the interests of'.66 Thus, in order to protect public property and to avoid interference with
the lawful pursuits of citizens, the Government may intercept the movement of a turbulent Party from
entering into a particular area, provided the restraints are minimal, in their nature and duration, 67 and
not excessive or discriminatory.68
When a person is evicted from a market for violating applicable rules, there is no violation of his
fundamental right to move freely throughout the territory of India. 69
(iv) Public morals.--Restrictions upon the movement of and the removal from one place to another of
prostitutes may be necessary in the interests of protecting public morals. 70
Prior to the above decision of the India Supreme Court, there were different views taken by the High
Courts of the country. While the High Court of Allahabad and Bombay 71 took the view that, it imposes
an unreasonable restriction on the right to freedom of movement, the High Courts of Punjab and
Andhra Pradesh72 took a contrary view.
This controversy was settled by the Supreme Court's decision in State of U.P. v. Kausalya .73 JUSTICE
SUBBA RAO (as he then was) held that the Magistrate while conducting the requisite enquiry under s.
20(3) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 74 was constitutionally
expected to discharge his function as a court and, therefore, a restriction imposed through judicial
process is a reasonable restriction.
It has already been cleared, that the interests of the public may justify a preventive, prohibitory, as well
as a penal measure.75
II. Protection of the interests of a Scheduled Tribe
 536

The Scheduled Tribes (vide Art. 342) are a backward and unsophisticated class of people who are
liable to be imposed upon by shrewd and designing persons. Hence, there are various provisions
disabling them from alienating even their own properties, except under special conditions. In their own
interests and for their own benefit, laws may be made to restrict the ordinary right of citizens to go to
or to settle in particular areas or to acquire property in those areas. 76
Any condition imposed against the transfer for a particular period of granted lands cannot be said to
be an unreasonable restriction... Experience has shown that persons belonging to Scheduled Castes
and Scheduled Tribes, to whom lands are granted, because of poverty, lack of education and general
backwardness, are exploited by various persons who could and would take advantage of the sad
plight of these poor persons for depriving them of their lands. The object of the grant and the provision
prohibiting alienation for a particular period, have been enacted for the benefit of the weaker sections
of the society.77
It has also been held that the members of Schedule Tribes are incapable of protecting their own
immovable properties and even, the plea of adverse possession cannot be a defence against the
proceedings for resumption of alienated hand.78
"Tribal areas have their own problems. Tribals are historically weaker sections of the society. They
need the protection of the laws as they are gullible and fall prey to the tactics of unscrupulous people,
and are susceptible to exploitation on account of their innocence, poverty and backwardness
extending over centuries. The Constitution of India and the laws made thereunder treat tribals and
tribal areas separately wherever needed. The tribals need to be settled, need to be taken care of by
the protection arm of the law, and be saved from falling prey to unscrupulous device so that they may
prosper and by an evolutionary process join the mainstream of the society. The process would be
slow, yet it has to be initiated and kept moving." The object sought to be achieved by the Orissa
Merged States (Laws) Act, 1950 and the Orissa Scheduled Areas Transfer of Immovable Property (by
Scheduled Tribe) Regulation of 1950 is to see that a member of an aboriginal tribe indefeatably
continues to own the property which he acquires and every process known to law by which title in
immovable property is extinguished in one person to vest in another person, should remain so
confined in its operation in relation to tribals and that the immovable property of one tribal may come
to vest in another tribal, but the title in immovable property vesting in any tribal must not come to vest
in a non-tribal. This is to see and ensure that non-tribals do not succeed in making inroads amongst
tribals by acquiring property and developing roots in the habitat of tribals. 79
In the cases of such beneficial legislation, i.e., to protect the interest of the weaker section of the
society, especially regarding transfer of tribal land and permitting nontribals to enter the land of tribals,
it was held, "The provision is beneficial and the legislative intention is to keep their property to
themselves, in the absence of protection. Therefore, when the Legislature is extending special
protection to the named category, the court has to give a liberal construction to the protective
mechanism which would work out the protection and enable the sphere of protection to be effective
than limit its scope.80
Articles 244 and 244-A of the Constitution make special provisions for the administration and control of
the Scheduled areas and the Scheduled Tribes in any State, by the application of the Fifth and the
Sixth Schedules. Paragraph 3 of the Fifth Schedule, enjoins the Governor of each State having
scheduled areas to report to the President annually or whenever so required, regarding the
administration of scheduled areas in that State, which also empower prohibition or restrict the transfer
of land by or among the numbers of Scheduled Tribes in such area; regulate the allotment of land to
members of the Scheduled Tribes in such areas and to regulate the carrying on of business as money
lenders by persons who lend money to members of the Scheduled Tribes in such areas. 81
It has been held that the fact that a person had no means of livelihood or residence in a town, where
he was hauled under s. 109 of the CrPC , could not be accepted as a ground for directing him to
furnish security under s. 109 as it would be a denial of his fundamental right under Art. 19(1)(d) and
(e).82
Reasonableness of restrictions
 537

I. Substantive Reasonableness
As has been seen, a restriction will be unreasonable if it is in excess of the requirement having regard
to the object which justifies the legislation.83 In that case, the authorities refused to send the
manuscript for publication, of a book of scientific interest written by a detenu, which has no connection
with his detention. The Supreme Court criticised this severely and directed that the book must be
forwarded to the publisher.
Restraints imposed on travel within the country, on members of religious groups or sects, with intent to
bring forth mass agitation, have to be balanced against the breach of their fundamental right. The
Courts can give relief in individual cases, instead of a general order as being applicable to the entire
group. The court may seek proof of substantial invasion of rights before passing the order. 84 Thus,

74a)  A law providing for the externment of dangerous characters from a locality
would be, unreasonable if it does not precisely define a 'goonda' (i.e., a dangerous
character) so as to give the administrative authority sufficient guidance as to the persons
to whom the law could be applied. If any citizen could be brought under it at the
discretion of the authority, the law would be unreasonable because of it being in excess
of the requirement.85
An order of detention in prison, involves the fundamental rights of a citizen's freedom to
movement and pursuit of normal life and liberty and hence, the authorities have to pass
an order with due application of mind. If the authority has failed to consider relevant
materials or relies on irrelevant materials, the order of detention will be set aside. 86
77b)  A law which empowers an administrative authority to require a person "to
reside or remain in such place or within such area within Madhya Pradesh as may be
specified in the order and...to proceed there" is un-reasonable because--.(i) it does not
indicate the extent of the place, or the area, its distance from the residence of the person
externed and whether, it may be habitated or inhabitated; (ii) the place selected may be
one, in which the person concerned may not have any residential accommodation and
no means of subsistence; the law nowhere provides that the person directed to be
removed shall be provided with any residence, maintenance or means of livelihood in
the place selected.87
On the other hand, a restriction which is limited as to its extent, duration and the like and is not in
excess of the requirement of the legitimate purpose of the restriction, it cannot be said to be
unreasonable.88One of the main objects of the Suppression of Immoral Traffic in Women and Girls Act,
1956,89 is to control the growing evil of prostitution in public places. Under s. 20 of the Act, the freedom
of movement and residence are regulated, but, an effective and safe judicial machinery has also been
provided for to carry out the object of the Act . The restrictions placed upon the prostitutes are
certainly in the interests of the general public and the imposition of restrictions is done through a
judicial process on the basis of a clearly disclosed policy, and hence the restrictions are reasonable. 90
The restraint on movement, whenever becomes necessary must be minimal and cannot exceed the
constraints of the particular situation, either in nature or duration. They cannot be used as engines of
oppression, persecution and harassment or the like. The sanctity of the person and of privacy has to
be maintained at all costs and cannot be allowed to be violated in the name of maintenance of law and
order.91
In the majority judgment in N.B. Khare (Dr.) v. State of Delhi ,92 an order of externment for three
months was held as valid, eventhough, there is no provision under the Punjab Public Safety Act, 1949,
to furnish the grounds of externment. The Act also enabled the Government to extend the period of
externment beyond three months, without fixing any time limit. The person was however, given the
right to representation to the Tribunal, which means that the grounds of detention should be furnished.
It was held that the Act is valid. In that case, the court unanimously upheld the validity of s. 4(1)(c) on
the ground that vesting of authority in a particular officer to take prompt act ion on their personal
satisfaction was not unreasonable. As regards the validity of s. 4(3), the majority held that in view of
Art. 22(4) to (7) provided for detention for three months without any remedy, the externment order
 538

could not be held unreasonable. As regards the validity of s. 4(6), it was urged that it imposed an
unreasonable restriction because it left the requirement of the communication of the grounds to the
discretion of the externing authority. Rejecting this argument, CHIEF JUSTICE KANIA held that it was
obligatory to communicate the grounds. According to him, the right to make representations given to
the externee when the externment order was to be in force for more than three months would be of no
use unless he was furnished with the grounds of the order. Since, there was no explicit obligation in
the provision to communicate the grounds, he read it by implication into the word "may" by interpreting
it as "shall". So interpreted, as the word "may" cannot have a different meaning when the order was to
be in force for less than three months, according to him, it should have the meaning "shall" even when
the order is to be in force for less than three months.
In A.K. Gopalan v. State of Madras ,93 the majority held that preventive or punitive detention did not
violate Art. 19(1)(d) which was not a right simpliciter to move about freely, but, a right to move about
freely throughout India.
In an early Calcutta case,94 it was held that the non-communication of grounds of externment, absence
of any opportunity to the person to be heard or make a representation, would make the law
unconstitutional.
An order of externment must always be restricted to the area of illegal activities of the externee. The
executive order must demonstrate due application of mind on the part of the statutory authority. The
satisfaction of the authority, although, primarily subjective, should be based on subjectivity. 95
The question of duration, however, must be considered alongwith the attendant circumstances, 96 such
as, the object of the legislation and the nature of the persons dealt with.

50i)  The City of Bombay Police Act , 1902, provided for the externment for a
mixmum period of two years of 'dangerous characters', whose presence in a particular
locality may jeopardize the peace and safety of the citizens. The Supreme Court upheld
the validity of the Act and held that the fact that the law provided a maximum duration of
externment up to two years was not unreasonable in view of the following
considerations--(a) the nature of the menace which the externment was intended to
avent; (b) the Commissioner of Police was empowered by the Act to cancel the order at
any moment if, in his opinion, the return of the extrenee to the area from which he was
removed ceased to be attended with any danger to the community. 97
47ii)  A law which authorises a local authority to declare a 'market area' and to
expel any trader in agricultural produce from that area who does not hold a licence, is in
the interest of the general public, namely, the regulation of the trade in agricultural
produce and is also a reasonable restriction, because it is restricted to a particular area,
i.e., the market and its precincts.98
A law which provides for externment, for an indefinite period would, prima facie, be an unreasonable
restriction, but not so, if the Act itself is temporary. 99 Similarly, a provision for externment for an
indefinite period has been held100not to be unreasonable, where, the law enabled the externee to apply
for a review of the order and for permission to return, at any time and as often as the externee liked.
1 See the Article - "Operation of Special Laws relating to Externment of Bad Characters", Journal of Indian Law
Institute, Vol. II, p. 1.

2 State of M.P. v. Bharat Singh, AIR 1967 SC 1170 (1172) C.B.

3 Prem Chand v. UOI, AIR 1981 SC 613 : (1981) 1 SCC 639.

4 State of U.P. v. Kaushailya, AIR 1964 SC 416 : (1964) 4 SCR 1002.

5 Kamla China v. State, AIR 1963 Punjab 36.

6 Seetharamamma v. Sambasiva Rao, AIR 1964 A.P. 400.

7 Shama Bai v. U.P., AIR 1959 Allahabad 57.

 539

8 Rupinder Singh Sodhi v. Union of India, AIR 1983 SC 65 : (1983) 1 SCC 140.

9 Jogibhai Mangal Bhai Tandel v. Mamlatdoor & Agricultural Law Tribunal, 1995 (Supp-1) SCC 748.

10 State of West Bengal v. Ashok Dey, AIR 1972 SC 1660 : (1972) 1 SCC 199.

11 Ajay Canu v. Union of India, AIR 1988 SC 2027 : (1988) 4 SCC 156. See alsoK. Veeresh Babu v. Union of India,
AIR 1994 Kar 56.

12 Hari Khemu Gawali v. Dy. Commr. of Police, AIR 1956 SC 559 : (1956) SCR 506.

13 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.

14 Madhu Limaye v. Sub Divisional Magistrate, Monghyr (1970) 3 SCC 746: AIR 1971 SC 2486 : (1971) 2 SCR 711.

15 Jan Mohammad Noor Mohamad Bagban v. State of Gujarat, AIR 1966 SC 385: (1966) 1 SCR 505.

16 AIR 1956 SC 585 : (1956) SCR 533.

17 AIR 1974 SC 1471 : (1974) 2 SCC 121.

18 AIR 1964 MP 175.

19 AIR 1967 SC 1170.

20 State of Kerala v. Joseph Antony, (1994) 1 SCC 301 ; Kerala Swathanthra Malayala Thozhilali Federation v. Kerala
Trawlnet Boat Operators' Association, (1994) 5 SCC 28: JT (1994) 7 SCC 33.

21 Bharat Singh v. State of M.P., AIR 1964 175, affd. by State of M.P. v. Bharat, AIR 1967 SC 1170.

22 Rajendran Chingaravelu v. R.K. Mishra, (2010) 1 SCC 457 : (2009) 15 JT 251.

23 Bankey v. Jhingan, AIR 1952 Pat 166.

24 Jeshinghbhai v. Emp., AIR 1950 Bom 363 (357)(FB) .

25 Krishnamurthy v. Venkateswaran, AIR 1952 Mad 11; In this context, see Author's Shorter Constitution of India , 10th
Edn., p. 239, footnote 67.

26 London Artists Limited v. Littler, (1969) 2 All ER 193.

27 See alsoReynolds v. Times Newspaper, (1999) 4 All ER 609.

28 SeeAshok Kumar Pandey v. State of WB, AIR 2004 SC 280 : (2004) 3 SCC 349; see alsoB. Singh v. UOI, AIR 2004
SC 1923 : (2004) 3 SCC 363.

29 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 : (1951) SCR 1056.

30 Day-Brite Lighting Inc. v. Missouri, (1952) 342 US 421.

31 State of Maharashtra v. Salem Hasan Khan, AIR 1989 SC 1304 : (1989) 2 SCC 316.

32 Lt. Governor of NCT v. Ved Prakash, (2006) 5 SCC 228.

33 Action Committee on Issue of Caste Certificate v. UOI, (1994) 5 SCC 244 : (1994) 3 SCALE 358.

34 AIR 1997 SC 152 : (1997) 11 SCC 121.

35 Ebrahim Vazir Mavat v. State of Bombay, AIR 1954 SC 229.

36 P. Arumugham v. Madras, AIR 1953 Mad 664.

37 Ananth Reddy v. Hyderabad, AIR 1954 Hyd 221. See also Shiv Nandan v. State of West Bengal, AIR 1954 Cal 60.

38 Abdul Rahim v. State of Bombay, AIR 1959 SC 1315: (1960) 1 SCR 285. See also Choithram Vehromal Jethwani v.
A.G., Kazi, AIR 1966 Bom 54; Assan Ullah v. State, AIR 1964 Tripura 5.

39 Gopalan v. State of Madras, (1950) SCR 88 (259, 302) : AIR 1950 SC 27. See alsoLucy D' Souza v. State of Goa,
AIR 1990 Bom 355 (supra).
 540

40 See also the Epidemic Diseases Act (III of 1897); the Lepers Act (III of 1898).

41 See also the Epidemic Diseases Act (III of 1897); the Lepers Act (III of 1898).

42 Gopalan v. State of Madras, (1950) SCR 88 (259, 302) : AIR 1950 SC 27. See alsoLucy D' Souza v. State of Goa,
AIR 1990 Bom 355 (supra).

43 State of U.P. v. Kausaliya, AIR 1964 SC 416 (422) : (1964) 4 SCR 1002 [overruling Begum v. State, AIR 1964 SC
416].

44 Dr. Joseph Manadan v. Transport Commissioner, Govt. of Kerala, AIR 2000 Ker 20. See alsoAjay Canu v. UOI, AIR
1988 SC 2027 : (1988) 4 SCC 156.

45 Railroad Company v. Husen, (1877) 95 US 465.

46 California v. Edwards, (1941) 314 US 160.

47 T.M. Cooley, A Treatise of Constitutional Limitation, 1st Indian Reprint 2005, Chapter XVI titled "The Police Power of
the States" at p. 588.

48 T.M. Cooley, A Treatise of Constitutional Limitation, 1st Indian Reprint 2005 at p. 594.

49 (1999) AC 240.

50 SeeHirst v. Chief Constable of West Yorkshire, (1987) 85 Cr APP R 143. See A.W. Bradley & K.D. Ewing,
Constitutional & Administrative Law, 13th Edn. at pp. 566-567.

51 Gopalan v. State of Madras, (1950) SCR 88 (259, 302) : AIR 1950 SC 27.

52 Gopalan v. State of Madras, (1950) SCR 88 (259, 302) : AIR 1950 SC 27.

53 Kishori Lal v. State, AIR 1957 Punj 244.

54 R. v. Chandler, (1962) 2 All ER 314 (320).

55 The Zamora, (1916) 2 AC 77 (107).

56 R. v. Chandler, (1962) 2 All ER 314 (320).

57 R. v. Chandler, (1962) 2 All ER 314 (320).

58 Gurbachan v. State of Bombay, (1952) SCR 737 : AIR 1952 SC 221. [Cf. Sections 27 of the City of Bombay Police
Act , 1902; Sections 238 of the Cantonments Act , 1924]: Casebook (I), 343.

59 Gurbachan v. State of Bombay, (1952) SCR 737 : AIR 1952 SC 221.

60 Hari Khemu v. Deputy Commr., (1956) SCR 506 [s. 56, Bombay Police Act, 1953] : AIR 1956 SC 559.

61 Khare v. State of Delhi, (1950) SCR 519 (528) : AIR 1950 SC 211; State of Karnatka v. Dr. Praveen Bhai Thogadia,
AIR 2004 SC 2081 : (2004) 4 SCC 684.

62 Cf. Kent v. Dulles, (1958) 357 US 116; Cf. Israil v. State, AIR 1951 Assam 106 [prevention of opium smuggling];
State of M.P. v. Baldeo, AIR 1961 SC 293 (298) : (1961) 1 SCR 970.

63 In re Chockalingam, AIR 1960 Mad 548 (564).

64 Hari Khemu v. Deputy Commr., (1956) SCR 506 [s. 56, Bombay Police Act, 1953] : AIR 1956 SC 559.

65 The Zamora, (1916) 2 AC 77 (107).

66 Superintendent v. Ram Manohar, AIR 1960 SC 633 : (1960) 2 SCR 821. SeeRamlila Maidan Incident, In re., (2012)
5 SCC 1 : (2012) 2 SCALE 682.

67 Rupinder v. Union of India, AIR 1983 SC 65 : (1983) 1 SCC 140 (paras. 2-3). SeeState of Karnataka v. Dr. Praveen
Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.

68 Rupinder v. Union of India, AIR 1983 SC 65 : (1983) 1 SCC 140 (paras. 2-3). SeeState of Karnataka v. Dr. Praveen
Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.
 541

69 Jan Mohd. Baghan v. State of Gujarat, AIR 1966 SC 385 : (1966) 1 SCR 505.

70 State of U.P. v. Kausaliya, AIR 1964 SC 416 (422) : (1964) 4 SCR 1002 [overrulingBegum v. State, AIR 1964 SC
416 (413)].

71 Kausalya v. State, AIR 1963 All. 71; Begum v. State, AIR 1963 Bom 17.

72 Kamala Chira v. State, AIR 1963 Punjab 36; Sitaramamma v. Sambasiva Rao, AIR 1964 AP 400.

73 AIR 1964 SC 416 : (1964) 4 SCR 1002 (supra).

74 Now Immoral Traffic (Prevention) Act, 1956.

75 Bharat Singh v. State of M.P., AIR 1964 175, affirmed byState of M.P. v. Bharat, AIR 1967 SC 1170 : (1967) 2 SCR
454.

76 Gopalan v. State of Madras, (1950) SCR 88 (259, 302) : AIR 1950 SC 27.

77 Manchegowda v. State of Karnataka, (1984) 3 SCC 301 : AIR 1984 SC 1151. SeeChinde Gowda v. Pttamma, (2007)
12 SCC 618 : [2007] 13 SCR 932; Guntaiah v. Humbamma, (2005) 6 SCC 228 : AIR 2005 SC 4013.

78 Amrendra Pratap Singh v. Tej Bahadur Prajapathi, AIR 2004 SC 3782 : (2004) 10 SCC 65.

79 Amrendra Pratap Singh v. Tej Bahadur Prajapathi, AIR 2004 SC 3782 : (2004) 10 SCC 65 (supra).

80 Pandey Oraon v. Ramchander Sahu, 1992 (Supp-2) SCC 77.

81 See alsoLingappa Pochanna Appealwar v. State of Maharashtra, AIR 1985 SC 389 : (1985) 1 SCC 479; Gamini
Krishnayya v. Guraza Seshachalam, AIR 1965 SC 639 : (1965) 1 SCR 195.

82 Ganga Ram v. State, AIR 1956 HP 43.

83 State of Maharashtra v. Prabhakar, AIR 1966 SC 424 (426) : (1960) 1 SCR 702; Kharak Singh v. State of U.P., AIR
1963 SC 1295 (1300) : (1964) 1 SCR 332.

84 Rupinder Singh v. UOI, AIR 1983 SC 65: (1983) 1 SCC 140.

85 In re Chockalingam, AIR 1960 Mad 548 (564).

86 Chowderapu Raghunandan v. State of Tamil Nadu, (2002) 3 SCC 754.

87 Superintendent v. Ram Manohar, AIR 1960 SC 633 : (1960) 2 SCR 821.

88 Damodar v. State, AIR 1951 Bom 459 (464).

89 Now Immoral Traffic (Prevention) Act, 1956.

90 State of U.P. v. Kaushailya, AIR 1964 SC 416 : (1964) 4 SCR 1002.

91 Rupinder Singh Sodhi v. Union of India, AIR 1983 SC 65 : (1983) 1 SCC 140.

92 N.B. Khare (Dr.) v. State of Delhi, AIR 1950 SC 211 : (1950) SCR 519.

93 AIR 1950 SC 27 : (1950) SCR 88.

94 Tazammal v. State of W.B., AIR 1951 Cal 322.

95 Lt. Governor, NCT Delhi. v. Ved Prakash, (2006) 5 SCC 228.

96 Gurbachan v. State of Bombay, (1952) SCR 737 : AIR 1952 SC 221. [Cf. Sections 27 of the City of Bombay Police
Act , 1902; Sections 238 of the Cantonments Act , 1924]: Casebook (i), 343; Hari Khemu v. Deputy Commr., (1956)
SCR 506 [s. 56, Bombay Police Act, 1953] : AIR 1956 SC 559; Khare v. State of Delhi, (1950) SCR 519 (528) : AIR
1950 SC 211.

97 Gurbachan v. State of Bombay, (1952) SCR 737 : AIR 1952 SC 221. [Cf. Sections 27 of the City of Bombay Police
Act , 1902; Sections 238 of the Cantonments Act , 1924]: Casebook (I), 343.

98 Jan Mahd. v. State of Gujarat, AIR 1966 SC 385 : (1966) 1 SCR 505 (para. 14).
 542

99 Khare v. State of Delhi, (1950) SCR 519 (528) : AIR 1950 SC 211.

100 State of U.P. v. Kaushaliya, AIR 1964 SC 416 (423) : (1964) 4 SCR 1002, overrulingBegum v. State, AIR 1963
Bom 17 (20).

It would seem from the decision of the Supreme Court in the State of U.P. v. Kaushaliya 1 that, if the
procedure prescribed is quasi-judicial, then, the Court would uphold restrictions, even though they are
unlimited in that point of time. In this case, a provision for the removal of particular prostitutes from
particular areas, with a ban against their reentering in such areas, after following a quasi-judicial
procedure, has been justified as, a reasonable restriction in view of the magnitude of the problem of
prostitution and its dangers to society.2
An externment proceeding having regard to the purport and object thereof, cannot be equated with a
matter of preventive detention. Further, a proceeding under Sections 47 of the Delhi Police Act ,
1978 stands on a different footing than the ordinary proceeding in the sense that whereas, in the latter,
the details of the evidence are to be disclosed, and thus, giving an opportunity to the procedure to
deal with them, in the former, a general allegation itself would serve the purpose. 3
In Ebrahim Vazir Mavit v. State of Bombay ,4 the question raised was whether, a law authorising
deportation of an Indian citizen for committing a breach of permit or passport regulation was valid,
having regard to Art. 19(1)(d) and (e). The matter arose out of an order passed under s. 7 of the Influx
from Pakistan (Control) Act, 1949 which provided: "Without prejudice to the provisions contained in s.
5, the Central Government may, by general or special order, direct the removal from India, of any
person who has committed or against whom a reasonable suspicion exists that he has committed an
offence under the Act, and thereupon, any officer of Government shall have all reasonable powers
necessary to enforce such direction". The above provision was upheld by the Bombay High Court. The
Allahabad High Court held that the provision was void and violated Art. 19(1)(d) and (e). In appeal
from the judgment of the Bombay High Court, the Supreme Court held the provision of s.7 as void as
far as citizens were concerned. A law, which virtually denied citizenship to a citizen upon a mere
breach of permit regulation, could not be justified as imposing a reasonable restriction since, the
punishment was utterly disproportionate to the gravity of the offence.
The imprisonment of a criminal or a person arrested and detained according to law, for an alleged
crime, did not cover any fundamental right and hence, the surrender under the Indian Extradition Act
of a person who had committed an offence to which the Act applied, did not violate Art. 19(1)(d). The
Court said that extradition is a specific subject of legislative power. It followed that the rendition of an
offender for an extradible offence was not in derogation of fundamental rights. 5
In State of Punjab v. Ajaib Singh ,6 the Supreme Court held that the Abducted Person (Recovery and
Restoration) Act, 1949 is not violative of Art. 19(1)(d) and (e& and the matter was concluded by the
judgment in A.K. Gopalan v. State of Madras .7 In Smt. Bimla Devi v. Chaturvedi ,8 the Allahabad High
Court held that the effect of the above statute was not to deport a citizen, but to restore an abducted
person.
Internment involves the confinement of an individual within the limits of a particular district or a town.
Internment of any individual amounts to his virtual detention though it is not so treated by courts. In a
sense, internment is a more drastic restriction on an individual's right to freedom of movement than
externment, since the former cripples the scope of the exercise of the right by confirming it to a small
fraction of the space of the territory of India. For this reason, the test of reasonableness has been
made more exacting in its application to the laws providing for internment. This is perhaps the reason,
why most of the laws providing for internment could not stand the test of reasonableness.
In Ismail v. State of Orissa ,9 dealing with the Orissa Maintenance of Public Order Act, 1950 which
authorises the issuance of an internment order without providing for basic procedural safeguards was
struck down. In State of MP v. Bharat Singh ,10which dealt with the Madhya Pradesh Public Security
Act, 1959, the court held the legislation as unreasonable, inspite of the fact that it provided for all basic
procedural safeguards. The Supreme Court, while approving the decision of the High Court, said that
 543

it was a serious matter to ask a person to leave his home and go and reside in some other place in the
State where he is an utter stranger and where the climate might be uncongenial to him and where he
had to experience difficulties in matters of accommodation, maintenance and means of livelihood. In
addition JUSTICE SHAH held that omission to provide in the Act for giving an opportunity of being
heard, prior to the selection of the place where the proposed the internee was to remain, was fatal to
the validity of the impugned provision under Art. 19(5).
Whether provision for externment from an entire State is reasonable
A law is not unreasonable merely because it enables the Executive to remove a person altogether
outside the limits of a State, by one or successive orders, for no such order could be made, unless,
the person makes himself so obnoxious as to render his presence in every part of the State, a menace
to the public interest.11 Whether a provision authorising externment of a person beyond the State or a
particular area can be said to be reasonable will depend upon the magnitude of the evil to be met by
the legislation. Thus, it would be quite reasonable in a law dealing with prostitutes. 12
However, when a person is externed from an entire State, the State Government cannot specify any
place outside that State where the externee must remain. 13 The reason is that the State Government,
not having any authority outside its territory, cannot possibly fix the residence of the externee at any
place outside its territory.14
Removal from India
Whether a restriction is excessive or not will depend on the circumstances of the case. Thus, even
when an Indian citizen wants to return from abroad, he must obtain a permit or passport for re-entry
into the Indian Territory and he may be punished for unlawful entry without such passport. This is a
reasonable restriction upon his right of movement and residence under Art. 19(1)(d) and (e). But the
removal from India for such unlawful entry would constitute an unreasonable restriction upon his right
under Art. 19(1)(e).15
It was held that the proposition, that, the order of removal from India imposes in the interest of the
general public, a reasonable restriction on the exercise of the right conferred upon an Indian citizen to
reside and settle in any part of the territory of India, is hardly statable. It is possible to conceive of an
Indian citizen being guilty of serious prejudicial act s such as espionage and disloyalty to his country in
which he may render himself liable to the gravest penalty which the Government may think fit by law
to impose upon him, but it would be repugnant to all notions of democracy and opposed to
fundamental rights guaranteed under Part III of the Constitution to order his expulsion from the
country, for, to hold otherwise would tantamount to destroying the right of citizenship conferred by Part
II of the Constitution.16
Police Surveillance

14.  Since this sub-clause guarantees only the right of physical movement, a
watch by the police over the movements of a suspect, would not be a violation of the
right guaranteed by Art. 19(1)(d); but domiciliary visits at causing night, disturbance to
his sleep, may constitute an infringement of his personal liberty under Art. 21. 17
There is no doubt that police surveillance of suspect is necessary for the detection and
prevention of crime and also, that the imposition of the requirement of natural justice into
this area will defeat the very object.18 Nevertheless, after some faltering steps the wedge
of judicial review under Art. 21 has been inserted.
Initially, the attempt was by a wrong assumption of the majority in Kharak Singh v. State
of UP ,19 namely, that what Art. 21 guaranteed was immunity from physical, but not
mental coercion. However, by 1981 this assumption was given up20 and it was suggested
that even in this sphere the court might interfere:
23. Where the intrusion is so excessive as to seriously encroach upon the
freedom of movement and dignity of individual concerned, in the guise of
surveillance;
 544

23. Where the person challenges the entry of his name in the surveillance
register, the court may call upon the authority to satisfy itself, that, there are
grounds to entertain a reasonable belief that a person was a habitual offender or
receiver of stolen property;21
14. The court might also interfere, if, the police tap the conversation of innocent
citizens, by coercion, or unlawful methods.22
It would not however, be unreasonable in case of restriction of a habitual
criminal.23
It was also held in the above case that domiciliary visits and picketing by the
police should be reduced to the clearest cases of danger to community security
and not routine follow-up at the end of a conviction or release from prison or at
the whim of a police officer. If any action is taken beyond the above boundaries,
the citizen will be entitled to attack such act ion as un-constitutional and void. It
was observed that depending on the character and the antecedents of the person
subjected to surveillance as also the objects and the limitation under which
surveillance is made, it cannot be said surveillance by domiciliary visits would
"always" be unreasonable restriction upon the right to privacy. Right to privacy,
though a fundamental right is subject to reasonable restriction under Art. 19(1)(d).
It was declared therein that the right to privacy can be denied only when an
"important counterveiling interest is shown to be superior" or "compelling State
interest was shown". In District Registrar and Collector v. Canara Bank ,24 it was
held that the right is not absolute and that any State intrusion can be a reasonable
restriction "only if it has a reasonable basis or reasonable material" to support it.

19.  Surveillance is needed for the legitimate purpose of prevention of crime and
its process must necessarily be confidential. Hence, it is not permissible to give a
hearing to a person before his name is entered in the surveillance register or to supply
him the grounds therefor.25 But the Court may interfere--
24. where it is sought to be used for a purpose other than the detection of
crime.26
24. where the surveillance is so excessive as to squeeze out the fundamental
freedom of all citizens or to offend the dignity of the individual. 27
Hence, when an entry in the register is challenged as malafide, it would be the
duty of the Police to satisfy the Court that there are reasonable grounds for the
belief that the person in question is a habitual offender or the like. 28
Interference in accordance with law and for prevention of disorder and crime is an
exception recognised even by European Convention of Human Rights. Article 8
reads thus:-- (1) Everyone's right to respect for his private and family life, his
home and his correspondence shall be recognised. (2) There shall be no
interference by a public authority with the exercise of their right, except such as is
in accordance with law and is necessary in a democratic society in the interests of
national security, public safety, for the prevention of disorder and crime and for
the protection of health or morals.
From Malak's case (supra), it is now settled that, the Court will interfere-
(1)"Where the intrusion is so "excessive" as to seriously encroach upon the
freedom of movement of dignity of the individual concerned, in the guise of
surveillance. (2) When a person challenges the entry of his name in the
'Surveillance Register', the Court may call upon the Police to satisfy itself that
there are grounds to entertain a reasonable belief that a person was a habitual
offender or receiver of stolen property. (3) The Court might also interfere if the
Police tap the conversation of innocent citizens, by coercion or unlawful
methods.29
 545

12.  Thus, though there is some controversy as to whether surveillance would

violative of Art. 19(1)(d) or 21 the condition of reasonableness has been deduced by
reading the two provisions together.30
II. Procedural Reasonableness
A restriction upon the freedom of movement would be procedurally unreasonable if it offends against
the principles of natural justice, e.g., if the person against whom an order of externment is made has
no right to be heard in this defence,: or to be told the charges or grounds upon which the order is
being made against him,31 or to show that he is not a person coming within the mischief of the law. 32
Under the Bombay Police Act , the Commissioner of Police could direct a person to remove himself
from Greater Bombay for a period upto two years if-

11)  the Commissioner was satisfied that his act s were calculated to cause
alarm or danger to person or property, or that he was about to commit an offence
involving violence or force; (2) in his opinion witnesses were not forthcoming to testify
against him in public.
The person concerned, had some procedural safeguards; he was to have in writing the main
allegation against him; he was to have an opportunity to explain the allegation; he could appear
through a lawyer and produce witnesses to clear his character. He could appeal to the State
Government against the externment order and could also resort to court on certain grounds. The court
held that law was valid under Art. 19(5) as restriction had been imposed to protect the public from
dangerous and bad characters; there were many safeguards and the maximum time-limit of an
externment order could only be for two years.
An argument was taken that no Advisory Board was constituted like the Advisory Board constituted
under the Preventive Detention Laws, the law was invalid. Court rejected this argument pointing out
the difference between Art. 19 and Art. 22(4). The Court said that, "the very fact that Constitution in
Art. 22(4) has made provision for an advisory board, but has not made such a provision in Art. 19
would answer this question. The constitution of an advisory board is not a sine qua non of
constitutionality of legislation".33
Where quick decisions and swift as well as effective action are necessitated, such cases may not
justify or permit the authorities to give prior opportunity or consideration at length of the pros and cons.
The imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous
consequences it may result in if not prevented forthwith should not be lost sight of.
While invoking the powers under s. 144 CrPC , it was contended that there must be transparent
guidelines and the ipse dixit of the executive official is not sufficient. It was held that since, different
fact situations warrant different approaches, no hard and fast guidelines which can have universal
application, can be laid down or envisaged. The situation peculiar to a particular place or locality vis--
vis a particular individual or group behaving or expecting to behave in a particular manner at a
particular point of time, may not be the same in all such or other eventualities in another part of the
country or locality or place even in the same State. The scheme underlying the very provisions carries
sufficient in-built safeguards and the avenue of remedies available under the Code itself, as well as by
judicial review are sufficient safeguards to control and check any unwarranted exercise or abuse in
any given case and courts should, ordinarily, give utmost importance and primacy to the view of the
competent authority.34
The incidents of this general proposition are--

15.  Right to be informed of the grounds.

16.  --A law which imposes a restriction upon the freedom of movement shall be
void if there is no provision for communicating the grounds to the person against whom
the order is to be made.35
 546

An externment order cannot be challenged on the ground that it is not a reasoned

order. The court pointed out that there is a certain brand of lawless element in the
society, in whom it is impossible to bring to book by established methods of judicial trial
because the legal evidence essential for conviction is impossible to obtain. For fear of
reprisals, witnesses are unwilling to depose in public against such characters. So, in the
externment order against such a person and in the disposal of appeal against that order,
the concerned authority is not bound to give reasons or to write a reasoned order. The
externee is only entitled to be informed of the general nature of the material allegation. 36
The law authorising preventive detention must provide that the order of detention
shall be accompanied by written grounds justifying the order, so that the detenu might
exercise his right to make a representation to the detaining authority against the order.
This right is in lieu of the right of an accused to consult a lawyer and to defend himself in
a court of law. In the case of punitive detention, the accused must be informed of the
allegations made against him, and he must be given an opportunity of consulting a
lawyer, so that he might meet those allegations in a court of law. In the case of
preventive detention, though the detenu has to be told the grounds in which the order of
detention has been made against him, he has no right to consult a lawyer or to defend
himself before a court of law. The only object of communicating to him the grounds of
detention is to enable him to make a 'representation' to the specified authority against
the order.37
It must be borne in mind that where an Act authorises the District Magistrate to
deprive a citizen of his fundamental rights under Art. 19(1)(d) and (e) and though the
object of the Act and its purpose would undoubtedly attract the provisions of Art. 19(5),
care must always be taken in passing such Act s that they provide sufficient safeguards
against casual capricious or even malicious exercise of powers conferred on them.
Where a statute empowers the specified authorities to take preventive action against
citizens, it is essential that it should expressly make it a part of the duty of the said
authorities to satisfy themselves about the existence of what the statute regards as
condition precedent to the exercise of the said authority. If the statute is silent in respect
of one such condition precedent, it undoubtedly constitutes a serious infirmity which
would inevitably take it out of the provision of Art. 19(5). 38
20.  The grounds communicated should not be 'vague, insufficient or
incomplete.'39A man served with an order of externment should be told enough so that he
could make some, "representation" and that, accordingly, merely to state that he was
committing a subversive act without mentioning, the particulars thereof was not
sufficient.
1. The externment order passed upon Dr. Khare, the President of the Hindu
Mahasabha by the District Magistrate of Delhi, gave the following grounds--
25. 'Your activities generally and particularly since the recent trouble in East and
West Bengal have been of a communal nature tending to excite hatred between
communities and whereas in the present composition of population of Delhi and
the recent communal disturbances of Delhi feelings are roused between the
majority and minority communities, your presence and act ivities in Delhi are likely
to prove prejudicial to the maintenance of law and order, it is considered
necessary to order you to leave Delhi".
26. Held, that having regard to the 'recent communal disturbances in Delhi' and
the position of the petitioner as the head of a communal organisation, the grounds
supplied were sufficiently reasonable, clear and specific.40
2. But where the communication stated that the person "is likely to do a
subversive act, viz., an act likely to endanger communal harmony, e.g., instigating
local Muslim to boTcott the Hindus", held, that the ground stated was not vague or
indefinite.41
2. Similarly, in respect of a law which provided for the externment of a previous
convict, when the specified authority was satisfied that he was likely, again, to
engage himself in the commission of an offence similar to that for which he had
 547

previously been convicted, the Supreme Court held that it was sufficient that the
"general nature of the material allegations" against him were communicated. 42
Such a law could not be impeached as unreasonable because it did not require
further particulars to be supplied to the person dealt with, for, in the very nature of
things, particulars such as could be established in a court of law could not be
furnished in such a case and the externment must be based largely on suspiction,
having regard to the previous conviction.43

II. The right to be heard

17.  A law of externment or internment would be void if it does not offer a right of
representation44 or an opportunity to be heard to the person against whom the order is
made.45
21.  He must have an opportunity not only of controverting the grounds
communicated to him or the allegations made against him, 46 but also of showing that he
is not a person coming within the mischief of the law sought to be applied against him. 47
13.  The hearing need not, however, be of the judicial type. 48 But the externee is
entitled "only" to know the material allegations against him and the general nature of
those allegations. He is not entitled to be informed of specific particulars relating to the
material allegations.49 It was further held in that case that a reasoned order of externment
containing a discussion of the evidence led against him would probably spark off another
round of tyranny and harassment. The order of externing authority or the appellate
authority need not write an order as if it were a judgment. 50After discussing earlier
decision, it was held, (1) In a proceeding under the Act (Bombay Police Act, Delhi Police
Act ) all statutory and constitutional requirements must be fulfilled. (2) An externment
proceeding having regard to the purport and object thereof, cannot be equated with a
preventive detention matter. (3) Before an order of externment is passed, the proceedee
is entitled to an opportunity of hearing. (4) The list of procedural safeguards contained in
the Act must be scrupulously complied with. (5) The satisfaction of the authority must be
based on objective criteria. (6) A proceeding under Sections 47 of Delhi Police Act
stands on a different footing than the ordinary proceeding in the sense that whereas in
the latter the details of evidence are required to be disclosed, thus, giving an opportunity
to the proceedee to deal with them, in the former, general allegations would serve the
purpose.51The Court further held that an order of externment must always be restricted to
the area of illegal act ivities of the externee. The executive order must demonstrate due
application of mind on the part of the statutory authority. When the validity of an order is
questioned, what would be seen is the material on which the satisfaction of authority is
based. The satisfaction of the authority, although primarily subjective, should be based
on objectivity. In a proceeding under the Act, all statutory and constitutional requirements
must be fulfilled. The High Court and the Supreme Court would undoubtedly zealously
guard the fundamental rights of the citizens. While exercising the jurisdiction vested in
them, invariably, the courts would make an attempt to uphold the human rights of the
procedure. The fundamental right under Art. 21 of the Constitution, undoubtedly, must be
safeguarded. The test of procedural safeguards contained in the Act must be
scrupulously complied with. Before an order of externment is passed, the proceedee is
entitled to an opportunity to be heard.
If the 'grounds' communicated to the detenu are elaborate and contain 'basic facts', but are not
comprehensive enough to cover all the details and particulars of the 'basic facts', such particulars
must also be supplied, if asked for by the detenu, within a reasonable time. 52 A person's personal
liberty cannot be curtailed by arrest without informing him, as soon as possible, as to why he was
arrested. For the purpose of this rule, it is not necessary to furnish him with full details of the offence,
but the information should be sufficient to enable him to understand why he has been arrested, and to
give him an idea of the offence which he is alleged to have committed. The grounds given to the
 548

arrested person should be intelligible.53 Failure to inform the person arrested of the reasons for his
arrest would entitle him to be released.54
Thus, in particular circumstances, it may be that in the interests of public welfare it would not be
possible or obligatory to give the person, who is sought to be removed, a public hearing with a
confrontation of witnesses, inasmuch as peaceful citizens would not come forward to give evidence in
the public against dangerous characters and habitual offenders. In such a case, the reasonableness
of the restriction imposed by the law was sustained in view of other safeguards, e.g.,--
"The power to initiate proceedings has been given to a high and responsible officer, the suspect is
given a reasonable opportunity of explaining the allegations made against him, and is permitted to
appear through a lawyer and to examine witnesses on his behalf for the purpose of clearing his
character."55
Sections 27 of the City of Bombay (4) of the City of Bombay Police Act , 1902, was impugned as
imposing un-reasonable restrictions upon the right guaranteed by Art. 19 (1)(d) on the ground that the
suspected person was not allowed to cross-examine those witnesses on whose evidence the
proceedings started against him. Held, the provision was not unreasonable because the law was of an
extraordinary nature and had been made to meet those exceptional cases where no witnesses for fear
of violence to their person or property are willing to depose publicly against certain bad characters
whose presence in certain areas constitute a menace to the safety of the public residing there. Thus
object would be wholly defeated if a right to confront these witnesses were given to the suspect. But
the power to initiate proceedings has been given to a high and responsible officer, the suspect is given
a reasonable opportunity of explaining the allegations made against him, and is permitted to appear
through a lawyer and to examine witnesses on his behalf for the purpose of clearing his character. 56
III. Whether it is reasonable to vest power in the Executive to be exercised on its subjective
satisfaction

18.  The object and nature of the legislation must be taken into account in
determining whether the restrictions imposed by it are reasonable. Thus, in a law of an
extraordinary nature, viz., the removal of persons who have become a menace to the
safety of the Public residing in a locality and against whom witnesses may not be willing
to depose publicly, the very objects of the law would be defeated if the suspect were
allowed to cross-examine the witnesses deposing against him.
Having regard to the extraordinary nature of such legislation therefore, it cannot be
struck down as imposing an 'unreasonable' restriction upon the freedom of, movement
guaranteed by Art. 19(1)(d), merely because it denies to the suspect the right to cross-
examine the witnesses examined against him, or because it enables the Executive
Officer to extern a person whenever he is subjectively satisfied that witnesses are not
willing to come forward to give evidence against the suspect; 57 or that a previously
convicted person is likely to engage himself again in the commission of an offence
similar to that for which he had previously been convicted. 58
If the show cause notice to furnish to the proposed externee concrete data like specific
dates of incidents or the names of persons involved in those incidents, it would be easy
enough to fix the identity of those who out of fear of injury to their person or property are
unwilling to depose in public. There is a brand of lawless element in society which is
impossible to bring to book by established methods of judicial trial because in such trials
there can be conviction without legal evidence. And legal evidence is impossible to
obtain, because out of fear of reprisals, witnesses are unwilling to depose in public. That
explains why, but a limited obligation on the authorities to inform the proposed externee
"of the general nature of the material allegations against him". 59 That obligation fixes the
limits of the co-relative right of the proposed externee. He is entitled to, before an order
of externment is passed under Sections 56 of the Bombay Police Act , 1951 to know
the material allegations against him and the general nature of those allegations. He is
not entitled to be informed of specific particulars relating to material allegation. 60
 549

While considering the validity of a rule which imposes restraints as movement, Courts
are entitled to and are bound to take judicial notice of historical events, which
necessitated the passing of the rule or Act . Where lawlessness and sabotage are
rampant to an extent hitherto unknown, restrictions on the citizen's freedom of
movement must be held to be eminently in the interest of general public. 61
Under the Delhi Police Act , 1978 the Commissioner of Police has three options - (1) to
direct the externee to so conduct himself as deemed necessary in order to prevent
violence and alarm, or (2) to direct the externee to remove himself outside any part of
Delhi, or (3) to remove the externee outside the whole of Delhi. If on materials justifying
externment can throw light on options to be exercised, the order of externment cannot
be set aside on the ground that there is no specific reference to each and every option
available. It was held that it is a matter of legitimate inference that when considering
materials to adjudicate on the question of desirability of externment, options are also
considered and one of the three options can be adopted. There cannot be any hair-
splitting in such matters.
The satisfaction of the authority can be interfered with if the satisfaction recorded is
demonstratively perverse based on no evidence, misreading of evidence or which a
reasonable man could not form or that the person concerned "was not given due
opportunity resulting in prejudice". To that extent, the objectivity is in-built in the
subjective satisfaction of the authority.62 It was held that satisfaction to be recorded by
the authority is primarily subjective, somewhat, similar to one required to be arrived at by
the detaining authority under the preventive detention laws.
If the satisfaction recorded by the authority is objective and is based on materials on
record, the same cannot be set aside on the ground that another view is possible. 63
While exercising discretion, i.e., the subjective satisfaction, there must be a clear and
present danger based upon credible material which makes the movement and acts of
the person in question alarming or dangerous or fraught with violence. Likewise, there
must be sufficient reason to believe that the person proceeded against is so desperate
and dangerous that his presence in the town or locality or any part thereof is hazardous
to the community and its safety. In such cases, natural justice must be fairly complied
with and vague allegations and secret hearings are gross violations of Art s. 14, 19 and
21 of the Constitution.64 The power to make an order of externment may be based on the
subjective satisfaction of an administrative official, subject to some substantial and
procedural safeguards. The grounds served on the externee should not be vague,
indefinite or incomplete and should have a direct bearing on the purpose for which an
externment order can be made under the relevant law. The externee should be given an
opportunity to make a representation or of being heard against the order of externment.
This appears to be minimal procedural safeguard which should be given to the
externee.65
22.  In Khare's case,66it had been laid down that a law of externment is not
unconstitutional merely because it leaves the necessity of making the order of
externment to the subjective satisfaction of a particular officer. In the impugned Act in
that case this authority was conferred upon some specified officers of superior rank. 67
In a later case,68 the Court has observed that where there is a likelihood of the law being
put in motion by an officer of inferior rank, the law will be held to constitute an
unreasonable restriction if it does not lay down the conditions precedent to the subjective
satisfaction specifically and clearly so as to safeguard against a casual or capricious
exercise of the power against innocent citizens.69
14.  Some procedural safeguards have been laid down as necessary in order to
reconcile the freedom of the individual and the collective interests e.g., a right to
represent against the order of removal, and administrative, appeal or the like. It cannot,
of course, be laid down as a universal rule that unless there is a provision for an
 550

Advisory Board to scrutinise the materials on which action is taken, the legislation
providing for externment must necessarily be condemned as unreasonable. 70
Reasonableness may rest on other safeguards, such as an appeal to the State
Government, right to challenge the order in Court on certain grounds. 71
Though judicial review is not an essential condition for reasonableness in every case, a
provision barring judicial review on a purely legal ground e.g., that the impugned order is
ultra vires the very statute under which it has been made, has been held to be an
unreasonable restriction.72
The question of reasonableness of empowering the Executive to impose restrictions
upon the freedom of movement of a citizen on subjective consideration has also to be
determined with reference to the circumstances calling for such restriction. Thus, it has
been held that--

It would not be reasonable to empower the Executive to expel a citizen from India on mere
suspicion. Section 7 of the Influx from Pakistan (Control) Act empowered the Government to
expel a citizen "upon a reasonable suspicion" that he had committed a beach of Permit
Regulations. The majority of the Supreme Court held that a law which subjects a citizen of
India to the extreme penalty of a virtual forfeiture of his citizenship upon a reasonable
suspicion of having committed a breach of Permit Regulations could not be justified as a
'reasonable restriction'". The view of the minority that there may be a situation of such grave
emergency to the national security that even such a measure should be upheld as reasonable
was not controverted as such by the majority and the majority appears to have proceeded on
the assumption that no such emergency had arisen in the facts of the case.73

Articles 19(1)(d) and 21: 'Freedom of Movement' and 'Personal Liberty'

21.  In early cases74 it was observed that it is the words 'throughout the territory
of India' which explain the meaning of the words 'freedom of movement, in sub-cl. (d) of
Art. 19(1). It does not refer to personal liberty, which is dealt with separately, in Art. 21.
The free movement guaranteed by the present sub-clause relates not to general rights of
locomotion, but to the particular right of shifting or moving from one part of Indian
Territory to another, without any sort of discriminatory barriers between one State and
another, or between different parts of the same State. 75 If restrictions are sought to be put
upon movement of a citizen from State to State or even within a State, such restrictions
will have to be tested by the permissive limits prescribed in Cl. (5) of Art. 19. 76 What is
sought to be protected by sub-cl. (d) of Art. 19(1) is only a specific and limited aspect of
the right of free movement, viz., the right of free movement throughout the Indian
territory, regarded as an independent and additional right apart from the general right of
locomotion emanating from the freedom of the person, which is dealt with in Art. 21. 77
In Gopalan's case,78 three of the majority judges in their attempt to distinguish the right conferred by
Art. 19(1)(d) from the one envisaged under Art. 21, divided the right to freedom of movement into a
special right limited to movement across the State barriers without impediment and a general right of
movement or locomotion, and held that, the former was guaranteed by Art. 19(1)(d) and the latter
emanated from the concept of "personal liberty". JUSTICE PATANJALI SASTRI observed: "The power
of locomotion is no doubt an essential element of personal liberty which means freedom from bodily
restraint. Sub-clause (d) of clause (1) does not refer to movement simpliciter, but similarly JUSTICE
MUKHERJEE said: "The reference to the interest of Scheduled Tribes makes it quite clear the free
movement spoken in the clause relates not to general right of locomotion, but the particular right of
shifting or moving one part of the Indian territory to another without any sort of discriminatory barriers".
In the same way, JUSTICE DAS said, "There are indications in the very language of Art. 19(1)(d) itself,
that, its purpose is to protect not the general right of free movement which emanates from the freedom
of the person, but only a specific and limited aspect of it, namely, the special right of free citizens of
India to move freely throughout the Indian territory".
 551

Although, PATANJALI SASTRI, MUKHERJEE AND DAS JJ held that the general right of locomotion
was part of "personal liberty", all the majority judges with the exception of JUSTICE MAHAJAN AND
DAS, confined the scope of the latter to its negative aspect which was synonymous with freedom of
person. JUSTICE DAS was the sole judge who sought to give to "personal liberty" a positive content.
In Kharak Singh v. State of UP ,79 JUSTICE RAJAGOPALA AYYANGAR agreed with the 'Gopalan'
thesis that the rights guaranteed under Arts. 19(1) and 21 are mutually exclusive of one another. But
he, however, disapproved the view held in Gopalan's case (supra) that "personal liberty" was only a
negative concept. Agreeing with the view expressed by JUSTICE DAS in Gopalan's case (supra),
learned judge observed: "We consider the personal liberty is used in Art. 21 as a compendious term to
include within itself all the varieties of rights which go to make up the personal liberties of man, other
than those dealt with, within the several clauses of Art. 19(1). In other words, while Art. 19(1) deals
with particular species or attributes of that freedom "personal liberty" in Art. 21 taken in and comprises
the residue. As regards Art. 19(1)(d), it appears that the learned judge did not make any distinction
between the 'particular right' and the 'general right' of locomotion, for, he observed: "We agree that the
right to 'move' denotes nothing more than a right of locomotion and that in the context of the adverb
"freely" would also connote that the freedom to move without restriction is absolute, i.e., to move
wherever one likes, whenever one likes and however one likes subject to any valid law enacted or
made under clause (5). Learned Judge was of the view that freedom of movement as expounded by
him was not comprehended by the expression "personal liberty". Learned judge observed: "It is true
that in Art. 21, the word "liberty" is qualified by the word "personal" and, therefore, its content is
narrower. But the qualifying objection has been employed in order to avoid overlapping between those
elements or incidents of "liberty" like freedom of speech or freedom of movement, etc. already dealt
with in Art. 19(1)(d). Having regard to the terms of Art. 19(1)(d), we must take it that, that expression is
used so as not to include the right to move about or rather of locomotion."
In Satwant Singh Sawhney v. APO ,80 it was held by the majority that, the right to go abroad and return
to India was a necessary incident of "personal liberty", guaranteed under Art. 21 of the Constitution. It
was held that, "The decision (i.e., in Kharak Singh's case81 is a clear authority for the position that
liberty in our Constitution bears the same comprehensive meaning as given to the expression "liberty"
by the Fifth and Fourteenth Amendment in the US Constitution and 'personal liberty' enshrined in Art.
21 only exclude the ingredients of 'liberty' enshrined in Art. 19 of the Constitution. In other words, the
expression, "personal liberty" in Art. 21 takes in the right of locomotion and to travel abroad, but the
right to move throughout the territory of India is not covered by it, in as much as it is specifically
provided in Art. 19. In Kharak Singh's case,82 it was observed: "Having regard to the term of Art. 19(1)
(d), we must take it that, that expression (personal liberty) is used as not to include the right to move
or rather locomotion". This statement was relied on by JUSTICE HIDAYATULLAH in Satwant Singh's
case to hold that the right to move was excluded from Art. 21 and that Art. 21 represented other
residuary personal liberties, not the subject of Art. 19(1). Learned judge concluded that the majority
view in Kharak Singh's case implies that the right to locomotion possessed by citizen is all contained
in Art. 19(1)(d) and is guaranteed only with respect to the territories of India".
In Gopalan's case83 it was held that the object of Art. 19(1)(d) is to guarantee to a citizen the right to
move freely 'throughout the territory of India' without any discriminatory barriers and that Art. 19 has
no application to a legislation dealing with preventive (Art. 22) or punitive (Art. 21) detention as its
direct object. If there is a legislation directly attempting to control a citizen's freedom of speech or his
right to assemble peacefully etc., the question whether that legislation is saved by the relevant saving
clause of Art. 19 will arise. If, however, the legislation is not directly in respect of any of these subjects,
but as a result of the operation of other legislation, for instance, for punitive or preventive detention,
his right under any of these sub-clauses is abridged, the question of the application of Art. 19 will not
arise.84

23I.  The Supreme Court decisions, subsequent to the foregoing observation,

show that the majority view in Gopalan's case, that, Arts. 19 and Arts. 21-22 form two
water-tight compartments, no longer holds the field, 85 and that, accordingly the
reasonableness of a penal law can be tested with reference to Art. 19, as has been
assumed in some cases86 subsequent to the observation in Cooper' case.87
 552

In Cooper's case, it was held that it is not the object of the authority making the law impairing the right
of a citizen, nor the form of action taken that determines the protection he can claim; it is the effect of
the law and of the act ion upon the right which attracts the jurisdiction of the Court to grant relief. If this
be the true view, in determining the impact of State action upon constitutional guarantees which are
fundamental, it follows that the extent of protection against impairment of a fundamental right is
determined not by the object of the Legislature, nor by the form of act ion, but by its direct operation
upon the individual's right. In another major development from the above point of view, in Bennett
Coleman & Co. v. UOI ,88 the court overruled the argument that Art. 19(1)(a) could not apply to a law
affecting the freedom of speech, but not enacted "directly" with respect to Art. 19(1)(a). Court declared
that if a law affected freedom of speech, its reasonability became answerable with reference to Art.
19(2) even though it was not enacted 'directly' to control the freedom of speech. This view completely
knocked out the court's earlier argument in Gopalan that Art. 19 applied only when a law was passed
directly in respect of a matter falling under it and not where when a law was not directly in respect of a
right under Art. 19, though it abridged a right. The court emphasised in Gopalan, that the question was
only to consider the directness of the legislation and not what would be the result of the law on a right
under Art. 19. Therefore, even though preventive detention deprived a person of the several rights
under Art. 19, the validity thereof, could not be adjudged under Art. 19. This view is no longer tenable
after the decision in Bennett Coleman & Co. v. UOI (supra) .89
In Delhi Transport Corporation v. DTC Mazdoor Congress ,90 the interplay of Art s. 14, 16(1), 19(1)(g)
and 21 as guarantors of public employment was considered. It was held, that it is well settled
constitutional law, that different articles in the Chapter of Fundamental Rights and Directive Principles
in Part IV of the Constitution must be read as an integral and incorporeal whole with possible
overlapping with the subject matter of what is to be protected by its various provisions particularly the
Fundamental Rights. ... The nature and content of the protection of the fundamental rights are
measured not by its operation of the State action upon the rights of the individual but by its objects.
The validity of the State act ion must be adjudged in the light of its operation upon the rights of the
individuals or groups of the individual in all their dimensions. It is not the object of the authority making
the law impairing the right of the citizen nor the form of action taken that determines the protection he
can claim; it is the effect of the law and of the act ion upon the right which attracts the jurisdiction of
the Court to grant relief.
Explaining the above decision, it was declared in Ashok Kumar Gupta v. State of U.P .,91 that view
taken in A.K. Gopalan's case that the operation of each article of the Constitution and its effect on the
protection of fundamental rights is required to be measured independently and not in conjoint
consideration of all relevant provisions is no longer good law and it is so held in Cooper's case. In P.L.
Lakhenpal v. UOI ,92 the Supreme Court again departed from the rule declared in Gopalan's case. This
was a case of preventive detention under Defence of India Rules during the emergency when the
normal safeguards provided by Art. 22 were not available. There was however, a provision for review
of detention cases every six months.
The court ruled that although the making of the initial detention order was an exercise of
administrative power, the view was a quasi-judicial function and, therefore, the detenu should have
been given a right of representation at that stage. Failure to give such a right vitiated the detention.
Such a judicial review meant that lack of natural justice in the law would not make it invalid;
nevertheless, the court could still impose natural justice by its interpretative process. If a law did not
lay down satisfactory procedure, the court could bring in natural justice and assess the validity of
administrative action infringing personal liberty on that basis. This decision did tone down somewhat
the rigorous statutory approach to Art. 21 as depicted in Gopalan's case.
In Khudiram Das v. State of WB ,93 it was asserted that it is not open to any one now to contend that
the law of preventive detention, which falls under Art. 22 does not have to meet the requirements of
Art. 14 or Art. 19.

15II.  On the other hand, the Gopalan doctrine,94 still lingered in the view that the
requirements of natural justice cannot be imported into Art. 22 because such
requirements, if any, are embodied in Art. 22 itself. 95
 553

Elaborate rules of natural justice are excluded either expressly or by necessary implication where
procedural provisions are made in the statute or where disclosure of relevant information to an
interested party would be contrary to the public interest. If a statutory provision excludes the
application of any or all the principles of natural justice, then the Court does not completely ignore the
mandate of Legislature... The principles of natural justice insofar as they are compatible with detention
laws find place in Art. 22 itself and also in the Act . Even if Art. 19 be examined in regard to preventive
detention, it does not increase the content of reasonableness required to be observed in respect of
orders of preventive detention. The procedure in the Act provides for fair consideration to the
representation. Whether in a particular case, the detenu has not been afforded an opportunity of
making a representation or whether the detaining authority is abusing his powers of detention can be
brought before the court of law. As long as there is an opportunity to make a representation against
the order of detention and as long as a representation is to be considered by the Advisory Board,
there is no unreasonableness in regard to procedure. 96

9V.  At length came the seven judge decision in Maneka v. Union of India ,97 in
1978.
In this Case,98 the minority view of FAZAL ALI J., in Gopalan's case99 was upheld and the following
proposition were laid down--
"The expression, 'personal liberty' in Art. 21 is of the widest amplitude and it covers a variety of rights
which go to constitute the personal liberty of man and some of them have been raised to the status of
distinct fundamental rights and given additional protection under Art. 19 (para. 54)." 100 In that case,
JUSTICE KRISHNA IYER said: "....no article in the Constitution pertaining to a fundamental right is an
island in itself. Just as a man is not dissectible into separate limbs, cardinal rights in an organic
Constitution have a synthesis". The expression, "personal liberty" in Art. 21, was given an expansive
interpretation. The court emphasised that the expression "personal liberty" is of widest amplitude,
covering a variety of rights "which go to constitute the personal liberty of man". Some of the attributes
have been raised to the status of distinct fundamental rights and given additional protection under Art.
19. Court reiterated the proposition that Art s. 14, 19 and 21 are not mutually exclusive. A nexus has
been established between these three articles. The law that prescribes a procedure has to meet the
requirements of Art s. 14, 19 and 21, and a procedure established under Art. 21 must answer the
requirement of Art. 14 as well.
The decision in Maneka Gandhi v. UOI ,101 completely overrides Gopalan's view. The Supreme Court
has reiterated the view that Arts.14, 19 and 21 are not mutually exclusive, but they sustain, strengthen
and nourish each other.102 In A.R. Antulay v. R.S. Naik ,103 the court said: "Once Gopalan was overruled
in R.C. Cooper's case104
1 Kishorilal v. State, AIR 1957 Punj 244 (253). But see Lt. Governor NCT Delhi v. Ved Prakash , where it was held that
an order of externment must always be restricted to the area of illegal act ivity of the externee (para 21).

2 Kishorilal v. State, AIR 1957 Punj 244 (253). But see Lt. Governor NCT Delhi v. Ved Prakash , where it was held that
an order of externment must always be restricted to the area of illegal activity of the externee (para 21).

3 Lt. Governor v. Ved Prakash, (2006) 5 SCC 228 : (2006) 5 SCALE 250 (supra).

4 AIR 1954 SC 229 : (1954) SCR 933.

5 In re. Sockalingam, AIR 1959 Mad 548(FB) .

6 AIR 1953 SC 10 : (1953) SCR 254.

7 AIR 1950 SC 27 : (1950) SCR 88. See alsoRam Singh v. UOI, AIR 1954 Pun 145.

8 AIR 1953 All 613.

9 AIR 1951 Ori 86.

10 AIR 1967 SC 1170 : (1967) 2 SCR 454.

 554

11 Kishorilal v. State, AIR 1957 Punj 244 (253). But see Lt. Governor NCT Delhi v. Ved Prakash , where it was held that
an order of externment must always be restricted to the area of illegal act ivity of the externee (para 21).

12 Kishorilal v. State, AIR 1957 Punj 244 (253). But see Lt. Governor NCT Delhi v. Ved Prakash , where it was held that
an order of externment must always be restricted to the area of illegal activity of the externee (para 21).

13 State of U.P. v. Kausaliya, AIR 1964 SC 416 (422) [overrulingBegum v. State, AIR 1964 SC 416 (413)].

14 Gurbachan v. State of Bombay, (1952) SCR 737 (741) : AIR 1952 SC 221.

15 Abdul Rahim Ismail c. Rahimtoola v. State of Bombay, AIR 1959 SC 1315 : (1960) 1 SCR 285.

16 Ebrahim Vazir Ahmed v. State of Bombay, AIR 1954 SC 229 : (1954) SCR 933.

17 Kharak Singh v. State of M.P., (1964) 1 SCR 352 (359-60).

18 Malak Singh v. State of Punjab, AIR 1981 SC 760 : (1981) 1 SCC 420.

19 AIR 1963 SC 1295 : (1964) 1 SCR 332 (supra).

20 SeeMalak Singh v. State of Punjab, AIR 1981 SC 760 : (1981) 1 SCC 420 (supra).

21 Malak Singh v. State of Punjab , (supra).

22 Malkhani v. State of Maharashtra, AIR 1973 SC 157 : (1973) 1 SCC 471 : (1973) 2 SCR 417.

23 Govind v. State of M.P., AIR 1975 SC 1378 : (1975) 3 SCR 946 : (1975) 2 SCC 148 (para. 31).

24 District Registrar and Collector v. Canara Bank, AIR 2005 SC 186 : (2005) 1 SCC 496.

25 Malak v. State of Punjab, AIR 1981 SC 760 : (1981) 1 SCC 420 (paras 7, 9, 10).

26 Malak v. State of Punjab, AIR 1981 SC 760 : (1981) 1 SCC 420 (paras 7, 9, 10).

27 Malak v. State of Punjab, AIR 1981 SC 760 : (1981) 1 SCC 420 (paras 7, 9, 10).

28 Malak v. State of Punjab, AIR 1981 SC 760 : (1981) 1 SCC 420 (paras 7, 9, 10).

29 R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157: (1973) 1 SCC 471.

30 Malak v. State of Punjab, AIR 1981 SC 760 : (1981) 1 SCC 420 (paras 7, 9, 10).

31 Jesinghbhai v. Emp., AIR 1950 Bom 363 [S. 2(1) of the Bombay Public Security Measures Act, 1947]; In re
Shantabal, AIR 1950 Bom 337]s. 9(1) of the Bombay Prevention of Prostitution Act, 1923]; Brajnandan v. State of Bihar,
AIR 1950 Pat 322 [s. 2 (1) of the Bihar Maintenance of Public Order Act, 1950].

32 State of M.P. v. Baldeo, AIR 1961 SC 293 (296) : (1961) 1 SCR 970.

33 SeeHari v. Dy. Commissioner, AIR 1959 SC 559 : 1959 (Supp-1) SCR 769 (supra); Bhagubhai v. Dt. Magistrate, AIR
1956 SC 585 : (1956) SCR 533.

34 State of Karnataka v. Dr. Praveen Bhai Togadia, AIR 2004 SC 2081 : (2004) 4 SCC 684. See alsoRamlila Maidan
Incident In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

35 Khagendra v. D.M., (1950) 55 C.W.N. 53 (56); Jatish v. B.K. Sinha, (1950) 55 C.W.N. 104.

36 State of Maharashtra v. Saleem Hasan Khan, AIR 1989 SC 1304 : (1989) 2 SCC 316.

37 State of Maharashtra v. Santosh Shanker Acharya, AIR 2000 SC 2504; Rajan Worlikar v. State of Karnataka, AIR
2001 SC 2303 : (2001) 5 SCC 295; District Collector v. Shaik Hasmath Beebi, (2001) 5 SCC 401 : AIR 2001 SC 1681.
See alsoLt. Governor v. Ved Prakash, (2006) 5 SCC 228 : (2006) 5 SCALE 250.

38 State of MP v. Baldeo Prasad, AIR 1961 SC 293 : (1961) 1 SCR 970.

39 Khare v. State of Delhi, (1950) SCR 519 (528) : AIR 1950 SC 211.

40 Khare v. State of Delhi, (1950) SCR 519 (528) : AIR 1950 SC 211.
 555

41 Jesinghbhai v. Emp., AIR 1950 Bom 363 [S. 2(1) of the Bombay Public Security Measures Act, 1947]; In re
Shantabal, AIR 1950 Bom 337] s. 9(1) of the Bombay Prevention of Prostitution Act, 1923]; Brajnandan v. State of
Bihar, AIR 1950 Pat 322 [s. 2 (1) of the Bihar Maintenance of Public Order Act, 1950].

42 Atar Ali v. Joint Secy., (1950) 5 C.W.N. 94.

43 Hari v. D. C. of Police, (1956) SCR 506 : AIR 1956 SC 559.

44 Jesinghbhai v. Emp., AIR 1950 Born. 363. [S. 2(1) of the Bombay Public Security Measures Act, 1947]; In re
Shantabal, AIR 1950 Bom 337]s. 9(1) of the Bombay Prevention of Prostitution Act, 1923]; Brajnandan v. State of Bihar,
AIR 1950 Pat 322 [s. 2 (1) of the Bihar Maintenance of Public Order Act, 1950].

45 State of Bihar v. Misra, AIR 1971 SC 1667 : (1969) 3 SCC 337; Khare v. State of Delhi, (1950) SCR 519 : AIR 1950
SC 211; Ebrahim v. State of Bombay, AIR 1954 SC 229 (231) : 1954 SCR 933.

46 Gurbachan v. State of Bombay, (1952) SCR 737 : AIR 1952 SC 221.

47 State of M.P. v. Baldeo, AIR 1961 SC 293 (296) : (1961) 1 SCR 970.

48 Gurbachan v. State of Bombay, (1952) SCR 737 : AIR 1952 SC 221.

49 Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, AIR 1973 SC 630: (1973) 1 SCC 372.

50 See alsoHari Khemu Gawali v. Dy. Commr. of Police, AIR 1956 SC 559 : (1956) SCR 506; State of Maharashtra v.
Salem Hasan Khan, AIR 1989 SC 1304 : (1989) 2 SCC 316.

51 Lt. Governor NCT v. Ved Prakash, (2006) 5 SCC 228.

52 Hansmukh v. State of Gujarat, AIR 1981 SC 28 : (1981) 2 SCC 175. See alsoState of MP v. Shobharam, AIR 1966
SC 1910 : 1966 (Supp) SCC 239.

53 Vimal v. State of UP, AIR 1956 All 56; Madhu Limaye v. State of Punjab, AIR 1959 Pun 506.

54 In re. Madhu Limaye, AIR 1969 SC 1014 : (1969) 1 SCC 292; see alsoSheik Haneef v. State of WB, AIR 1974 SC
679 : (1974) 1 SCC 637; Krishna Lal Dutta v. State of WB, AIR 1974 SC 955 : (1974) 3 SCC 783.

55 Gurbachan v. State of Bombay, (1952) SCR 737 : AIR 1952 SC 221.

56 Gurbachan v. State of Bombay, (1952) SCR 737 : AIR 1952 SC 221.

57 Bhagubhai v. D.M., (1956) SCR 533 : AIR 1956 SC 585. See alsoGurbhachan v. State of Bombay, AIR 1952 SC
221 : (1952) SCR 737.

58 Hari v. D. C. of Police, (1956) SCR 506 : AIR 1956 SC 559.

59 Sections 59 of the Bombay Police Act .

60 Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, (1973) 1 SCC 372: AIR 1973 SC 630. See alsoState of
Maharashtra v. Salem Hasan Khan, (1989) 2 SCC 316: AIR 1989 SC 1304; Lt. Governor of NCT v. Ved Prakash,
(2006) 5 SCC 228.

61 State of West Bengal v. Ashok Dey, (1972) 1 SCC 199 : AIR 1972 SC 1660.

62 State of N.C.T. of Delhi v. Sanjeev, AIR 2005 SC 2080 : (2005) 5 SCC 181.

63 Gazi Saduddin v. State of Maharashtra, AIR 2003 SC 3116 : (2003) 7 SCC 330.

64 Prem Chand (Paniwala) v. Union of India, AIR 1981 SC 613: (1981) 1 SCC 639.

65 Raja Sukhanandan v. State of UP, AIR 1972 All 498.

66 Khare v. State of Delhi, (1950) SCR 519 : AIR 1950 SC 211; Ebrahim v. State of Bombay, AIR 1954 SC 229 (231) :
1954 SCR 933.

67 Khare v. State of Delhi, (1950) SCR 519 : AIR 1950 SC 211; Ebrahim v. State of Bombay, AIR 1954 SC 229 (231) :
1954 SCR 933.

68 State of M.P. v. Baldeo, AIR 1961 SC 293 (296) : (1961) 1 SCR 970.
 556

69 State of M.P. v. Baldeo, AIR 1961 SC 293 (296) : (1961) 1 SCR 970.

70 Hari v. D. C. of Police, (1956) SCR 506 : AIR 1956 SC 559.

71 Khare v. State of Delhi, (1950) SCR 519 : AIR 1950 SC 211; Ebrahim v. State of Bombay, AIR 1954 SC 229 (231) :
1954 SCR 933.

72 Hasanalli v. State of Bombay, AIR 1951 Bom 432, [S. 27 (7) of the City of Bombay Police Act , 1902)].

73 Ebrahim Vazir v. State of Bombay, AIR 1954 SC 229 : 1954 SCR 933.

74 Gopalan v. State of Madras, AIR 1954 Mad 240; Khare v. State of Delhi, (1950) SCR 519 (523, 530 ff.) : AIR 1950
SC 211; Gopalan v. State of Madras, (1950) SCR 88 (105-07); Kharak Singh v. State of U.P., AIR 1963 SC 1295 :
(1964) 1 SCR 332.

75 Gopalan v. State of Madras, AIR 1954 Mad 240.

76 Khare v. State of Delhi, (1950) SCR 519 (523, 530 ff.) : AIR 1950 SC 211.

77 Gopalan v. State of Madras, (1950) SCR 88 (105-07) : AIR 1950 SC 27; Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1964) 1 SCR 332.

78 Gopalan v. State of Madras, (1950) SCR 88 : AIR 1950 SC 27.

79 AIR 1963 SC 1295 : (1964) 1 SCR 332.

80 AIR 1967 SC 1836 : (1967) 3 SCR 525.

81 Kharak Singh v. State of U.P., AIR 1963 SC 1295 (supra).

82 Kharak Singh v. State of U.P., AIR 1963 SC 1295 (supra).

83 Gopalan v. State of Madras, (1950) SCR 88 (105-07) : AIR 1950 SC 27; Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1964) 1 SCR 332.

84 Gopalan v. State of Madras, (1950) SCR 88 (106-07) : AIR 1950 SC 27; Kharak Singh v. State of U.P., AIR 1963 SC
1295; Ram Singh v. State of Delhi, (1951) SCR 451 : AIR 1951 SC 270.

85 Cooper v. Union of India, AIR 1970 SC 564 (596) : (1970) 1 SCC 248.

86 Sambhu v. State of. W.B., AIR 1973 SC 1425 : (1973) 1 SCC 856; Khudiram v. State of W.B., AIR 1975 SC 550 :
(1975) 2 SCC 81; State of Bihar v. Misra, AIR 1971 SC 1667 : (1969) 3 SCC 337 (para. 28).

87 Cooper v. Union of India, AIR 1970 SC 564 (596) : (1970) 1 SCC 248.

88 AIR 1973 SC 106 : (1972) 2 SCC 788.

89 See M.P. Jain, Indian Constitutional Law, LexisNexis, 2014 Edn. at p. 1119.

90 Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101: 1991 (Supp-1) SCC 600 : (1991) 1 LLJ
395.

91 Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201

92 AIR 1967 SC 1507 : (1967) 3 SCR 114.

93 AIR 1975 SC 550 : (1975) 2 SCC 81.

94 Gopalan v. State of Madras, (1950) SCR 88 (105-07) : AIR 1950 SC 27; Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1964) 1 SCR 332.

95 Haradhon Saha v. State of W.B., AIR 1974, SC 2154 : (1975) 3 SCC 198 (paras 20, 31) (CB).

96 Haradhan Saha v. State of West Bengal, AIR 1974 SC 2154 : (1975) 3 SCC 198 : (1975) 1 SCR 778 (supra).

97 Maneka v. Union of India, AIR 1978 SC 597. (7-Judges) : (1978) 1 SCC 248.

98 Maneka v. Union of India, AIR 1978 SC 597. (7-Judges) : (1978) 1 SCC 248.
 557

99 Gopalan v. State of Madras, (1950) SCR 88 (105-07) : AIR 1950 SC 27; Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1964) 1 SCR 332.

100 Maneka v. Union of India, AIR 1978 SC 597. (7-Judges) : (1978) 1 SCC 248.

101 AIR 1978 SC 597 : (1978) 1 SCC 248.

102 T.V. Vaitheeswaran v. State of Tamil Nadu, AIR 1983 SC 361 (2) : (1983) 2 SCC 68.

103 AIR 1992 SC 1701 : (1992) 1 SCC 225.

104 R.C. Cooper v. UOI, AIR 1970 SC 564 : (1970) 1 SCC 248.

and its principle extended to Art. 21 in Maneka Gandhi v. UOI ,1 Art. 21 got unshackled from the
restrictive meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto
unimagined. A burst of creative decisions of this Court fast on the heels of Maneka Gandhi gave a new
meaning to the article and expanded its contents and connotation.
Once it is held that Art. 21, read with Art. 19, guarantees a fair procedure, a law of penal2 or preventive
detention3 must be struck down if its provisions deny fairness.4
"The constitutional significance of these pronouncements should not be minimised. Although the
constitutionality of Maintenance of Internal Security Act 1971 (MISA) was upheld in various cases
(e.g., Haradhan Saha v. State of WB ;5Joh Martin v. State of WB 6 ) with reference to Art. 19, both on
substantive as well as procedural grounds, yet the position in essence was now very different from
Gopalan. It is one thing to say as was said in Goplan that Art. 19 did not apply to a law restricting
personal liberty, but quite another to apply Art. 19 to such a law and find it to be reasonable. In the
latter situation, the final word regarding reasonableness of a law affecting personal liberty rests with
the court and not with the Legislature".7
It was held that Constitution itself has provided a yardstick for the application of that standard (i.e.,
standard of fairness) through the medium of the provision contained in Art. 22(3)(b). It was held that
denial of the right to legal representation before the Advisory Board cannot be termed as unfair, unjust
or unreasonable. When the provisions in Art. 22(3)(b) considers fair, just and reasonable, cannot be
for the purpose of Art. 21 be regarded as unfair, unjust or unreasonable, eventhough the requirement
of Art. 21 is to be satisfied when a case of preventive detention is dealt with in Art. 22. 8
Thus, speedy trial being an ingredient of such fairness, where a trial denies the right to a speedy trial,
the prosecution and conviction are liable to be quashed, 9 and, logically, any provision of law which
authorises such delay is liable to be annulled.
The same view should be taken as regards a trial held without offering free legal assistance to an
indigent accused person.10
V. The present position is thus unsatisfactory and somewhat paradoxical:

51i)  While it is settled that the doctrines of natural justice or 'due process' cannot
be invoked11 to test the constitutionality of laws coming under Art. 21 or 22, the test of
reasonableness or fairness are nevertheless applicable. 12
48ii)  While it is settled that Art. 21 does not exclude Art. 19, 13 so long as the
majority view in Gopalan's case14 is not expressly overruled by a larger Bench it is
difficult to prefer the interpretation given by FAZL ALI, J. in the minority, that Art. 19(1)(d)
can be attracted to strike down a penal law on the ground that it constitutes an
unreasonable restriction upon the right guaranteed by Art. 19(1)(d).
But the fact remains that though the majority view15 has been subjected to repeated criticism, it has not
been overruled up to the end of 1990.16
Freedom to leave the country
 558

As has been stated at the outset, since Art. 19(1)(d) is concerned with the freedom of movement
within India, any right to travel out of India to foreign countries cannot possibly be drawn from it. But in
view of the fact that Art. 13(2) of the Universal Declaration of Human Rights lays down a right to leave
one's country, it would be useful to discuss in the present context how far any such right exists in
India.17
The International Covenant on Civil and Political Rights, 1966 (article 12) states-

12)  Everyone lawfully within the territory of a State shall within that territory,
have the right to liberty of movement and freedom to choose his residence.
14)  Everyone shall be free to leave any country including his own.
8)  The abovementioned rights shall not be subject to any restriction except
those which are provided by law that are necessary to protect national security, public
order, public health or morals or the rights and freedom of others and are consistent with
the other rights recognised in present Covenant.
4)  No one shall be arbitrarily deprived of the right to enter his own country.
U.K.
In England, though during feudal times, a subject could not leave the Kingdom without leave of the
Crown, no such restriction now exists.18 This right, however, would be hollow because a passport may
be refused, in the exercise of the royal prerogative, without giving any reasons and there is no appeal
from such refusal.19
LORD DENNING in his book Freedom under the Law, under the heading "Personal Freedom",
observed: "By personal freedom, I mean the freedom of every law abiding citizen to think what he will,
to say what he will and to go where he will on his lawfully occasions without let or hindrance from any
other persons".
The British Constitution, unlike the Indian Constitution, being unwritten, the liberties of British citizens
are mainly the product of Common law. It has been observed, "the socalled liberties of British subject
are really implications drawn from two principles, that the subject may say or do what he pleases
provided he does not transgress the substantive law or infringe the legal rights of others." To this
proposition, the right to freedom of movement is no exception in England. The preponderance of
opinion is that the right to freedom of movement, like all other rights are emanations of the "right to
personal liberty" or personal freedom, which has been considered as the genus of all rights. SIR IVOR
JENNINGS observes: "The right to personal freedom is a liberty to so much personal freedom as is
not taken away by law. It asserts the principle of legality, that everything is legal that is not illegal. It
includes therefore, the right to free speech, of association, and of assembly. The right of personal
freedom asserts that a man may not be deprived of his freedom for doing any act unless in so doing
he offends against the law. The last is the genus of which the others are species". 20
UK law has traditionally presumed that the UK citizens would be free to travel abroad, but this freedom
is in practice dependent on possession of a valid passport although in law it is possible to enter or
leave Britain without one. A passport is defined in R v. Brailsford ,21 approved in Joycee v. DPP 22 as a
document issued in the name of individual intended to be presented to the Government of foreign
nations and to be used for their individual protection as a British subject in foreign countries. It
contains a request in the name of Her Majesty to allow the bearer pass freely and to afford him such
assistance and protection as may be necessary. A passport is not legally necessary at Common law in
order to go abroad, but it is universally used as a certificate to identify and nationality. 23 The above
definition suggests that passports grew up not as a restriction on freedom of movement, but the
position today hardly reflects such an affirmation.
An order refusing to issue a passport is subject to judicial review. 24
If a person travels abroad from the UK in possession of a British Visitors Passport, but is challenged
by Immigration officials on return, the passport will not be regarded as prima facie proof of British
citizenship.25 In such cases, the burden of proof lay on the applicant to demonstrate that he is a British
citizen.26
 559

U.S.A.
In the American Constitution, though there is no specific guarantee of a right to travel out of the
country, it has, since 1957, been deduced from the omnibus word 'liberty' and held to be entitled to the
protection of the 'Due Process' Clause. In Kent v. Dulles 27 the Supreme Court observed--
"The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due
process of law of the Fifth Amendment...Freedom of movement across frontiers in either
direction...was a part of our heritage. Travel abroad may be necessary for a livelihood. It may be as
close to the heart of the individual as the choice of what he eats, or wears or reads". 28
The Supreme Court in Harbert Apthekar v. Secretary of State 29 reaffirmed the view expressed in Kent
v. Dulles (supra). It was held, "Freedom of movement, at home and abroad, is important for job and
business opportunities - for cultural, political and social activities - for all the commingly which
agregarious the man enjoys". It was further held, "America is of course sovereign, but her sovereignty
is woven in an international web that makes her one of the families of nations. The ties with all the
continents are close commercially as well as culturally. Our concerns are planetary, beyond sunrise
and sunsets. Citizenship implicates us in those problems and perplexities, as well as in domestic
ones. We cannot exercise and enjoy citizenship in world perspective without the right to travel abroad;
and I see no constitutional way to curb it unless, as I said, the power to detain".
Apthekar v. Secretary of State 30dealt with s. 6 of the Subversive Act ivities Control Act, 1950 which
made it a criminal offence for a member of Communist Party to apply for a passport. The court
recognised that freedom of international travel is protected by Fifth Amendment. In Zemel v. Rusk ,31
the court upheld the Secretary's decision not to validate passports to travel to Cuba. The court pointed
out that the fact that a liberty cannot be inhibited without due process of law does not mean that it can
under no circumstances be inhibited.
In California v. Aznavorian ,32 the Court observed: "The constitutional right to inter-state travel is
virtually unqualified. By contrast, the right to international travel has been considered to be no more
than an aspect of 'liberty' protected by "Due process" clause of the Fifth Amendment. As such, this
right, the court held, can be regulated within the bounds of due process. At the same time, court said
that a legislation which is said to infringe the freedom of travel abroad is not to be judged by the same
standard applied to laws that paralise the right of inter-state travel such as durational residency
requirements imposed on the States.33
Freedom to leave one's country temporarily for travel abroad was considered to be important to an
individual, national and international well being. 34
Of course, this liberty to travel out of the country is not absolute but must be subject to restrictions
which may legitimately be imposed in the interests of national security, 35e.g., it may be restricted in the
case of travel to Communist countries.36 The Court, however, would not tolerate any restriction
indiscriminately imposed, regardless of the 'security- sensitivity' test of the areas in respect of which it
is sought to be denied.37
Japan
Article 22(2) of the Japanese Constitution says--
"Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall
be inviolate".
In Pakistan, every citizen has the liberty to go abroad and re-enter Pakistan unless he is precluded
from doing so under some law made in public interest. It was held that the right to enter the country
cannot be denied, but a citizen can be restrained from going out of the country. 38 His right to enter the
country if he is leaving it or has gone abroad and his right to step out and step in the country are
subject to reasonable restrictions imposed by law in public interest. In Pakistan v. Dada Amir Haider
Khan ,39 while upholding Passports Act , it was held that a passport cannot be denied to a citizen
merely because he is a communist or communist sympathiser. It was held, "The world, however, is
filled with 'communist thought' and communist regimes are existing on more than one continent. They
 560

are part of the world spectrum and if we are to know them and understand them, we must mingle with
them. Keeping alive intellectual intercourse between opposing groups is important and this should not
be curbed unless in so doing some interest of State is imperilled. It was further held that before finally
refusing the grant of passport, he must be given an opportunity of being heard. In cases where
reasons could not be disclosed for refusal, it should be stated that in view of the sensitivity of the
matter, the disclosure of detailed reasons for refusal of the passport was not in the public interest." 40
Wajid Shamsul Hassan v. Federation of Pakistan 41 and Mushtaq Awan v. Government of Pakistan are
cases dealt with under the Exit from Pakistan (Control) Ordinance of 1981, which is another law
placing restriction on travelling abroad.
India
Influenced by the American decisions just discussed, the majority of the Supreme Court, in Satwant's
case,42 held that the right to travel abroad was included in the 'guarantee of personal liberty' in Art. 21,
and that unless there is any valid legislation barring such right, a passport could not be refused for
leaving the country, on any ground.
The practical effect of this decision43 was, however, short-lived. Prior to 1967, there was no law
authorising the Executive to refuse passports to any person. The decision in Satwant's case44led to the
enactment of the Passport Act, 1967, which has (s. 6) laid down the grounds on which a passport may
be refused for visiting any foreign country, e.g.,--

52i)  sovereignty, integrity and security of India;

49ii)  friendly relations of India with a foreign country to travel to which the
passport has been applied for;
30iii)  the applicant not being a citizen of India;
22iv)  that the applicant has during the proceeding 5 years been convicted of any
offence involving moral turpitude and convicted for not less than 2 years;
18v)  that a criminal proceeding for an offence is pending against the applicant in
an Indian Court;
13vi)  that an order prohibiting the departure of the applicant from India has been
issued by any such Court;
8vii)  that a summons or warrant has been issued for the arrest of applicant;
4viii)  that the applicant has been repatriated and has no reimbursed the
expenditure in connection therewith;
2ix)  that in the opinion of the Central Government the issue of the passport to
the applicant will not be in the public interest.
In Maneka Gandhi v. Union of India ,45 it was declared that the right to go abroad cannot be regarded
or treated as part of the right to carry on trade or business, profession, calling guaranteed under Art.
19(1)(g) nor it is included in the freedom of speech and expression under Art. 19(1)(a).... The right to
go abroad is not a right guaranteed under any of the clauses under Art. 19(1) and the right of passport
authority to impound the passport under s. 10(3)(c) of the Passport Act, 1967 is not violative of Arts.
19(1)(a) or (g) as its direct and inevitable impact is on the right to go abroad and not on the right of
free speech and expression or the right to carry on any trade, business, profession or calling. The right
to impound the passport can only be "in the interests of the general public" which expression is not
vague nor does it give the authority unguided or indiscriminate power for impounding. But, before
impounding the passport, the affected person should be given an opportunity to explain his case.
1 Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 (supra).

2 Sitaram v. State of U.P., AIR 1979 SC 745 : (1979) 2 SCC 656 (para. 29); Jolly v. Bank of Cochin, AIR 1980 SC 470 :
(1980) 2 SCC 360 (para. 10).

3 A.K. Roy v. Union of India, AIR 1982 SC 710 : (1982) 1 SCC 271 (para s. 71, 73) (CB); Peer v. State, (1988) J&K
1500 (para. 11).
 561

4 A.K. Roy v. Union of India, AIR 1982 SC 710 : (1982) 1 SCC 271 (para s. 71, 73) (CB); Peer v. State, (1988) J&K
1500 (para. 11).

5 Haradhan Saha v. State of West Bengal, AIR 1974 SC 2154 : (1975) 3 SCC 198 (supra).

6 AIR 1975 SC 775 : (1975) 3 SCC 836.

7 See M.P. Jain, Indian Constitutional Law, 2014 Edn. at p. 1120.

8 SeeA.K. Roy v. UOI, AIR 1982 SC 710 : (1982) 1 SCC 271.

9 Sheela Barse v. Union of India, AIR 1986 SC 1773 : (1986) 3 SCC 596; Raghubir Singh v. State of Bihar, (1986) 4
SCC 481 : AIR 1987 SC 149.

10 Suk Das v. Union Territory, AIR 1986 SC 991 : (1986) 2 SCC 401 (para. 5).

11 Vide Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980) 2 SCC 684 (para s. 6l, 132).

12 Maneka v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 (7-Judges); A.K. Roy v. Union of India, AIR 1982
SC 710 : (1982) 1 SCC 271 (para s. 71, 73) (CB); Peer v. State, (1988) J&K 1500 (para. 11).

13 Maneka v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 (7-Judges); A.K. Roy v. Union of India, AIR 1982
SC 710 : (1982) 1 SCC 271 (para s. 71, 73) (CB); Peer v. State, (1988) J&K 1500 (para. 11).

14 Gopalan v. State of Madras, (1950) SCR 88 (105-07) : AIR 1950 SC 27; Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1964) 1 SCR 332.

15 Gopalan v. State of Madras, (1950) SCR 88 (105-07) : AIR 1950 SC 27; Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1964) 1 SCR 332.

16 Vide Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980) 2 SCC 684 (para s. 6l, 132).

17 See also Art. 12.2 of the International Covenant on Civil and Political Rights. It is subject to public morals, public
order, public health, national security and the rights and freedoms of others. [SCW. (3rd.) P. 54].

18 Street, Freedom, the Individual and the Law, 1967 Edn., p. 285 (288).

19 Street, Freedom, the Individual and the Law, 1967 Edn., p. 285 (288).

20 Ivor Jennings, The Law and the Constitution, 5th Edn. at p.263; see also Dicey, Introduction to the Study of the Law
of the Constitution, 10th Edn. at pp. 207-208.

21 (1905) 2 KB 730.

22 (1946) AC 347.

23 See Hood Phillips & Jackson, Constitutional & Administrative Law, 8th Edn., Chapter XV at p. 326 (para 27).

24 Council for Civil Service Unions v. Minister for Civil Service, (1985) AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR
1174; see alsoSecretary of State for Foreign and Commonwealth Affairs exparte Everett, (1989) 1 All ER 655 : (1989)
QB 891.

25 SeeMinta v. Secretary of State for the Home Department, (1992) Imm Ar. 380.

26 See Helen Fenwick, Civil Liberties, 1998 Edn. at pp. 450-451.

27 Kent v. Dulles, (1957) 357 US 116. See alsoCalifornia v. Aznavonian, 439 US 170.

28 Kent v. Dulles, (1957) 357 US 116. See alsoCalifornia v. Aznavonian, 439 US 170.

29 Harbert Apthekar v. Secretary of State, 12 Law Ed. 992.

30 (1964) 378 US 500.

31 (1965) 381 US 1.

32 (1978) 439 US 170.

33 SeeCalifornia v. Jobst, (1977) 434 US 47.

 562

34 61 Yale Law Journal 171.

35 Zemel v. Rusk, (1965) 381 US 1.

36 U.S. v. Land, (1967) 385 US 475; Apthekar v. Secy. of State, (1964) 378 US 500.

37 Apthekar v. Secy. of State, (1964) 378 US 500 (supra).

38 Mohammed Shahbaz Sharif v. Federation of Pakistan, PLD 2004 SC 583.

39 Pakistan v. Dada Amir Haider Khan, PLD 2004 SC 583.

40 See Judicial Review of Public Action by Justice (R) Fazal Karim, Retd. Judge, Pakistan Supreme Court, 2006 Edn.,
Vol. I at p. 681.

41 PLD 1997 Lahore 617.

42 Satwant v. Asstt. Passport Officer, AIR 1967 SC 1836 : (1967) 3 SCCR 525 (paras. 17, 18, 28).

43 Satwant v. Asstt. Passport Officer, AIR 1967 SC 1836 : (1967) 3 SCCR 525 (paras. 17, 18, 28).

44 Satwant v. Asstt. Passport Officer, AIR 1967 SC 1836 : (1967) 3 SCCR 525 (paras. 17, 18, 28).

45 Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248.

CLAUSE (1)(E) : FREEDOM OF RESIDENCE

OTHER CONSTITUTIONS
U.S.A.
(A) U.S.A.--Like freedom of movement, the right to freedom of residence does not find an express
mention in the American Constitution. Consequently, like the freedom of movement, this right has also
been read into privileges and immunities clauses of Fourth Amendment. In Corefield v. Coryall ,46 it
was declared that privileges and immunities protected by Article IV include all rights that are
"fundamental which belong as right to the citizens of all free Government. What these fundamental
principles are, it would be more tedious than difficult to enumerate. They may all, however, be
comprehended under the following general heads protected by Government, with the right to acquire
and possess property of every kind and to pursue and obtain happiness and safety, subject
nevertheless to such restraints as the Government may prescribe for the general good of the whole.
The privileges and immunities clause prevents a State from treating citizens of other States differently
from the way it treats its own citizens unless there are some very strong reasons for doing so. 47
Switzerland.
(B) Switzerland.--Article 45 says--
"Every Swiss citizen has the right to settle in any part of Switzerland, subject to the production of a
certificate of origin or similar document. The right of settlement may, by way of exception, be refused
to or withdrawn from persons who have been deprived of their civic rights as a result of a penal
conviction. The right of settlement may also be withdrawn from persons who have been repeatedly
sentenced for grave misdemeanours, and from persons who become permanent burden upon public
charity, and whose Commune or Canton of origin refuses to provide adequate assistance for them
after having been officially requested to provide it. In Cantons in which domiciliary relief is provided,
permission for settlement may be made conditional, in the case of citizens of the Canton, upon the
person being capable of work and not having been a permanent charge upon public charity in their
former domicile in the Canton or origin. The Canton in which a Swiss citizen settles may not require
from him any security or impose any special charge upon him in respect of each settlement. Similarly,
 563

Communes may not impose on Swiss citizens domiciled within their area any charges other than
those imposed upon their own citizens."48
The object of this article is the removal of inter-cantonal barriers, but in practice the provisions of this
Article have rather been used to regulate movements, by requiring a certificate from the home
commune and permission from the commune where the person seeks to go, as conditions precedent
to change of residence from one commune to another.
Japan
(C) Japan.--Article 22(1) of the Japanese Constitution, 1946, says--
"Every person shall have freedom to choose and change his residence...to the extent that it does not
interfere with the public welfare."
Sri Lanka
(D) Sri Lanka.--Article 18 (i) of the Constitution of Sri Lanka, 1972 guarantees 49 --
"Every citizen shall have the right to freedom of movement and of choosing his residence within Sri
Lanka."
Pakistan
(E) Pakistan.--Article 15.--Every citizen shall have the right to remain in, and subject to any reasonable
restriction imposed by law in the public interest, enter and move freely throughout, Pakistan and to
reside and settle in any part thereof. Though, the above Article treats the right to remain in Pakistan as
an absolute right, in Nasrullah Khan Henjra v. Government of Pakistan ,50 it was held that the Article
was never intended to afford protection against extradition to citizens who are accused of serious
crimes in other countries.51
The International Covenant on Civil & Political Rights, 1966 provides: "Every one lawful within the
territory of a State shall, within that territory have the right to freedom to choose his residence".
Article 13(1) of the Universal Declaration of Human Rights, 1948 states: "Everyone has the right to
freedom of ...residence within the borders of each State".
INDIA
The fundamental right of a foreigner is confined to Art. 21 for life and liberty and does not include the
right to reside and stay in this country and the Art. 19(1)(e) applies only to citizens. Persons who
reside in the territories of countries, of which they are not nationals, possess a special status under
international law. States reserve the right to expel them from their territory and refuse to grant them
certain rights which are enjoyed by nationals, like right to vote, hold public office, or to engage in
political act ivities. Article 13 of the International Covenant of 1966 on Civil and Public Rights would
apply provided an alien is "lawfully in India" namely with valid passport, visa, etc. and not on those
who entered illegally or unlawfully.
It was held that right of Government to expel foreigners is absolute and unlimited. So far as the right to
be heard is concerned, there cannot be any hard and fast rule about the manner in which a person
concerned has to be given an opportunity to place his case. The principle as applied to criminal law is
not applicable in the case of identification of a foreigner and his deportation since he is not being
deprived of his life and liberty. The deportation proceedings are not proceedings for prosecution where
a man may be convicted or sentenced. The procedure as provided in Foreigners Act and Foreigners
(Tribunal) Order, 1964 was held to be fair and reasonable and does not offend any constitutional
provision. Foreigners (in this case, Bangladeshi Nationals) have no right to live in India and are liable
to be deported.52 In Gilles Pfciffer v. Union of India ,53 a French citizen holding French passport came to
reside in India since 1974 who was involved with the Aurobindo Ashram at Auro Ville. He applied for
permit to extend his stay in India which was refused. It was held that the Central Government has
unfettered discretion to expel a foreigner.
 564

As to differentiate between the terms "extradition", "deportation" and "exclusion", the Supreme Court
said: "In deportation a person is ordered to leave a country and is not allowed to return to that country.
In exclusion, a person is prohibited from staying in a particular part of a sovereign State. Deportation
and exclusion are nonconsensual orders whereas extradition depends on existence of treaty or some
other arrangements between the two States".54
Freedom of residence

19.  The object of this clause is the same as that of Cl. (1)(d), viz., to remove
internal barriers within India or between any of its parts, and the freedom guaranteed by
Cl. (1)(e) has to be construed similarly, viz., with reference to the words 'territory of
India'.
23.  But since the rights under Art. 19 are available only to a citizen, a person
cannot complain of the infringement of his right under the present sub-clause if his
citizenship has been terminated by a law made by Parliament, under Art. 11. 55
15.  What is guaranteed by Art. 19(1)(d), (e) is the right of a citizen to move and
to settle in any State; but this does not further guarantee that a person who comes to
settle in a State from outside shall be entitled to enjoy all the privileges available to
persons 'domiciled' in the latter State, unless such discrimination is hit by any other
Constitutional provision.56 Thus, though discrimination against a person in the matter of
civic amenities is57 made on the ground that he is not domiciled therein shall be hit by Art.
14, such discrimination in the matter of admission to educational institutions shall not be
necessarily bad inasmuch as discrimination on the ground of 'domicile' is not prohibited
by Art. 15(1) or 29(2).58
7.  Discrimination in favour of permanent residents of the State of Jammu &
Kashmir in matters of employment under the State Government and the like has been
expressly made in Art. 35A, (post), inserted in the Constitution of India , by the
Constitution (Application to J&K) Order.59
5.  In this connection, we should also note the provision in Art. 16(3), which
empowers Parliament to lay down residence as a qualification for employment in a
particular State, in pursuance of which was enacted the Public Employment
(Requirement as to Residence) Act, 1957, which has since expired. It has been replaced
by the provision in Art. 371D(2), limited to the State of Andhra Pradesh, which has been
inserted by the Constitution (32nd Amendment) Act, 1973. [see Art. 371(D) post].60
The right to residence and settlement is a fundamental right under Art. 19(1)(e) and is a facet
meaningful right to life under Art. 21. Food, shelter and clothing are minimal human rights. Right to
shelter is a fundamental right, which springs from the right to residence assured in Art. 19(1)(e) and
right to life under Art. 21 of the Constitution.61 When the State has undertaken as its economic policy
planned development of this country and has taken massive housing schemes, allotment of houses to
weaker sections of society, the same has to be recognised as its part. The Preamble and Art. 19(1)(e),
read alongwith Art s. 38, 39 and 46 of the Constitution, make the life' meaningful and liveable in equal
status with dignity of person. It is, therefore, imperative on the part of the State to provide permanent
housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities
within their economic means, so that they could make payment of the price in easy instalments and
have permanent settlement and residence assured under Arts. 19(1)(e) and 21 of the Constitution. 62
To have a house for shelter is a basic requirement of every citizen of our country. To make the right
meaningful to the poor, the State has to provide facilities and opportunities to build houses. Acquisition
of land to provide housing sites to the poor homeless is a public purpose as it is a constitutional duty
of the State to provide house sites to the poor. 63
In P.G. Gupta v. State of Gujarat ,64 the Supreme Court while considering the mandate of human
rights, read into Art. 19(1)(e) and Art. 21 of the Constitution, to guarantee the right to residence and
settlement. The protection of life guaranteed under Art. 21, encompasses within its ambit the right to
shelter, to enjoy the meaningful right to life.
 565

The ultimate object of making a man equipped with a right to dignity of person and equality of status is
to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates
the very object of the constitutional animation of right to equality, economic justice, fundamental right
to residence, dignity of the person and the right to live itself. 65 Acquisition of land to provide houses for
poor is a public purpose, since right to shelter is a fundamental right. 66 Where the Government grants
a lease with the object of the policy to effectuate the mandate of the Constitution, i.e., social justice
and dignity of the person and to provide residence, the same is protected by Art. 19(1)(e) read with
Art. 39(b).67 Life, livelihood and shelter are so mixed, mingled and fused that it is difficult to separate
them. To take away life, it would be enough to take away livelihood; and to earn livelihood, which in
urban areas is ordinarily at places away from one's own house and hearth, shelter would be
necessary, be it a house or even a pavement.68 The Constitution aims at ensuring fuller development
of every child. That would be possible only if the child is in a proper home. It is not necessary that
every citizen must be ensured of living in a well-built comfortable house, but a reasonable home
particularly for people in India can even be mud-built thatched house or mud-built fire proof
accommodation.69
It could not be said that the right to shelter is a guarantee under Art. 21 of the Constitution of India
and so the abridgement or limitation placed on the rights of the legal heirs in the case of a statutory
tenancy of residential premises makes an inroad into the right of tenant. The statutory tenancies
regarding residential premises are distinct and different from statutory tenancies regarding commercial
premises and the limitation or the restrictions placed under s. 2(l) (iii) of the Delhi Rent Control Act ,
1958 on the right of heirs of statutory tenants of residential premises are reasonable, fair and just.
There is no violation of Art. 14 or 21 of the Constitution. 70
Though, no one has a right to encroach upon public footpaths, pavement or roads, State or the local
authorities have a statutory duty to provide residential accommodation to the poor and indigent
weaker sections of the society. The State has an obligation or constitutional duty to provide adequate
facilities and opportunities by distributing its wealth and resources for settlement of life and creation of
shelter over the heads to make the right to life meaningful, effective and fruitful. 71
At the same time, the court was also of the view that encroachers have no right to claim alternative
site of their choice. They have no right to dictate to the Government or other authorities with rgard to
alternate site. In case such encroachers refused to move to the alternate site as offered by the
authorities, they are liable to removed from the encroached area after following the procedure. 72
Grounds of restrictions
Since, the same Cl. (5) governs both the freedoms of movement and residence, the grounds of
restriction in both the cases shall be similar, e.g.,--

53i)  Public health.--On this ground, the State may compel prostitutes and like
persons to reside in or to remove from73 a particular area or locality.
50ii)  Public order.--Similarly, disorderly persons may be prohibited from residing
in a Cantonment area.74
31iii)  Interests of Scheduled Tribes.-- Reasonable restrictions are also permitted
in the interests of the Scheduled Tribes. Thus, in Dhan Bahadur Ghosti v. State of
Assam,75 a custom prevailing in a tribal area that no Nepali or foreigner would be allowed
to stay in the area without the permission of the Deputy Commissioner was held valid
under Art. 19(5) as being a restriction in the interest of the protection of the Scheduled
Tribes.
The fundamental right to life and liberty of a foreigner is confined to Art. 21 and does not include the
right to reside and stay in India as mentioned in Art. 19(1)(c) which is applicable only to citizens of
India. Aliens have no legal right of any kind in India and are liable to be deported. It is only when they
are lawfully admitted that they become entitled to certain rights which are necessary for the enjoyment
of ordinary private life.76 This, however, does not imply that an alien who has lawfully entered the
country and whose application for citizenship is pending can be deported without any reason being
afforded.77
 566

Reasonableness of restrictions
The following are instances of reasonable restrictions:

75a)  The prohibition of prostitutes78 to live in certain specified areas and their
removal from such areas.79
78b)  Passport regulations for entry from abroad can be reasonably imposed even
upon citizens of India.80
Right to shelter being a fundamental right, the authorities cannot refuse permission when the persons
who want to put up construction. But the authorities can insist that the construction should be
according to Rules and layout plan.81
How far restrictions may be imposed upon the re-entry of citizens from abroad
The right of re-entry of a citizen should be distinguished from the right of entry of aliens. The right to
restrict or regulate the immigration of aliens is the inherent right of every sovereign State, 82 and, in the
absence of any specific constitutional provision,83 it is a matter for municipal legislation of each
sovereign State.84
In Fong Yue Ting v. US ,85 the court upheld Congress's right to exclude or compel all aliens or any
class of aliens absolutely or upon certain conditions, in war or in peace as being an inherent and
inalienable right of every sovereign and independent nation, essential to its safety, its independence
and its welfare. In that case, Congress in 1892 had enacted legislation continuing its exclusion of
Chinese people from entry into the United States and requiring Chinese resident aliens to obtain
certificates of residence under penalty of law. In a pointed dissent, JUSTICE BREWAR objected to
that "this doctrine of powers inherent in sovereignty is both "indefinite and dangerous" and more fitted
to "despotism" than a nation with powers "fixed and bounded by a written Constitution". In Zadrydas v.
Davis ,86 however, the Court said that once an alien enters the country, the Due Process Clause
applies to all persons within the United States whether, their presence is lawful, unlawful, temporary or
permanent. Thus, the Constitution "does not permit indefinite detention" of aliens to be deported, but
limits to such 'civil detention' to a period reasonably necessary to bring about the alien's removal from
United States. The Court observed: "The distinction between an alien who has effected entry only into
United States and who has never entered runs throughout immigration law. It is well established that
certain constitutional protection available to persons inside the United States are unavailable to aliens
outside our geographical area".
However, constitutional questions arise when the State puts restrictions upon the re-entry from abroad
of its own citizens.
U.S.A.

4A)  U.S.A.--As has been already pointed out (see ante), in Kent v. Dulles ,87 the
Supreme Court has acknowledged that a citizen's liberty to move 'across frontiers in
either direction' is guaranteed by the Due Process Clause. It follows that restrictions may
be imposed on the re-entry of citizens from abroad, provided such restrictions are in
conformity with the 'due process'.
Article 5(1)(f) of the European Convention of Human Rights says: "No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure established by law: ...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom act ion is being taken with a view to deportation or extradition.
This provision under European Convention does not grant aliens a right of admission or residence in
contracting States, but paragraph 5(1)(f) ensures that an alien who is detained pending deportation or
admission has certain guarantees there must be review of the detention by a court and the arrest must
be in accordance with national law. Also because the lawfulness of the detention may depend on the
lawfulness of the deportation itself, the lawfulness of deportation may often be in issue".
 567

India

6B)  India.--Reasonable restrictions may be imposed under Cl. (5) upon a

citizen's right to reside and settle in any part of the territory of India. A citizen of India
returning to India from a foreign country may, accordingly, be reasonably required to
produce a permit or passport88 (under the Passport Act) before he can be allowed to
enter the country and may also be convicted for breach of the provisions of the Passport
Act or the Rules made thereunder. 89
The view expressed in the case V.G. Row v. State of Madras ,90 that a citizen does not require a
passport for re-entering this country no more holds good law in view of the decision of the Supreme
Court in Abdul Rahim Ismail C. Rahimtoola v. State of Bombay ,91 wherein it was held, "On a
reasonable interpretation of Section 3 of the Act and Rules 3 and 4 (Passport Act of 1920) which say
"person" entering India shall be in possession of a valid passport, there can be no manner of doubt
that the provisions apply to all persons entering India including Indian citizens.
However, a removal of a citizen from India amounts to a virtual forfeiture of his citizenship; hence, a
law which provides that on conviction for an offence for breach of the passport regulations a citizen
can be removed from India virtually takes away the fundamental right conferred by Art. 19(1)(e) upon
a citizen and cannot, accordingly, be justified as imposing a reasonable restriction under Cl. (5) of that
Article.92
Such restriction must also be procedurally reasonable:
The removal of a citizen from India or to another part of India, 93 on the subjective satisfaction of the
Executive and without giving him an opportunity of showing cause is an unreasonable restriction upon
the right guaranteed by Art. 19(1)(e).94
CLAUSE (1)(f): FREEDOM OF PROPERTY
Amendment.--The right to property has ceased to be a fundamental right under the Indian
Constitution, since the omission of Arts. 19(1)(f) and 31, by the Constitution (44th Amendment) Act,
1978, w.e.f. 20-6-7995. The only vestige of the right to property is now contained in Art. 300A, which
was inserted by the same Amendment Act, outside Part III.

20.  This amendment, thus, has brought about a revolutionary change in the right
to property, so that all the case-law under Art. 19(1)(f) have now to be read in the context
of Art. 300A.

24.  The amendment is, however, not retrospective. Hence, any law enacted
prior to 20-6-1979 (the date on which the 44th Amendment Act, 1978 came into force)
shall be open to challenge on the ground of contravention of the fundamental right under
Art. 19(1)(f),96 and the case-law97 thereunder shall be applicable.
The right to property, though, no longer a fundamental right, remains a constitutional
right. In Railway Board v. C.R. Rangadhamaih ,98 two notifications which reduced
pension retrospectively including for the period when Art. 19(1)(f) and Art. 31(1) were in
the Constitution were held violative of these articles.
Both under the Transfer of Property Act , 1882 and the Rent Control Laws, a tenant has
an interest in the demised premises and hence, the "property" entitled to protection
under Art. 19(1)(f). But that does not prohibit the Legislature from enacting laws for
evicting tenants where tenancy has been terminated by efflux of time or by notice, by a
summary procedure. It was therefore, held that, the provisions of the Public Premises
(Eviction of Unauthorized Occupations) Act, 1971 to evict such tenant by a summary
procedure is not violative of Art. 19(1)(f).99
16.  But the only effect of the deletion of Art. 19(1)(f) is that the right to property
has lost its protection as a 'fundamental right'; it does not abolish the rights of property
 568

as they exist under the ordinary law, e.g., the right of a landlord to evict a tenant under
the Rent Control Acts.100
8.  It is also to be noted that Art. 19(1)(f) has not been repealed in the State of
J&K, and that the old law is still applicable in that State, excepting judicial review as to
reasonableness of restrictions.101
CLAUSE (1)(g) : FREEDOM OF PROFESSIONOTHER CONSTITUTIONS102
U.K.
(A) England.--The attitude of English common law towards trade and business faithfully represents the
doctrine of laissez faire, which would not favour any restraint upon the individual freedom of
agreement. Even injurious competition resulting from a combination, of traders has been supported by
the courts, provided only unlawful means are not used in injuring the trade rivals. 103
At common law, every member of the community is entitled to carry on any trade or business he
chooses and in such manner as he thinks most desirable in his own interest; and in as much as, every
right connotes an obligation, no one can lawfully interfere with another in the free exercise of his trade
or business, unless there exists some just cause or excuse for such interference. Generally speaking,
it is in the interest of every individual member of the community that he should be free to earn his
livelihood in any lawful manner and in the interest of the community that every individual should have
this freedom.104It is the general principle of common law, that, a man is entitled to exercise any lawful
trade and calling as and when he wills and the law has always regarded zealously any interference
with trade, even at the risk of interference with freedom of contract, as it is public policy to oppose all
restraints upon liberty of individuals' act ion which are injurious in the interest of State. 105
There was no attempt at legislation to control monopolistic and restrictive trade agreements and
practices until the enactment of the Monopolies and Restrictive Practices (Inquiry and Control) Act,
1948, followed by the Restrictive Trade Practices Act, 1956, which provide for the control of
monopolies and restrictive and other objectionable trade agreement which are against the public
interest.106
46 (1823) Fed Case 546 (No : 3230).

47 Paul v. Virginia, (1869) 75 US (8 Wall) 168; see alsoHague v. CID, (1939) 307 US 496.

48 Author's Select Constitutions of the World.

49 Author's Select Constitutions of the World.

50 Nasrullah Khan Henjra v. Govt. of Pakistan, PLD 1994 SC 23.

51 See Judicial Review of Public Action by Justice (R) Fazal Karim, Retired Judge, Supreme Court of Pakistan, Vol. I,
2006 Edn. at pp. 562-567.

52 Sarbananda Sonowal v. Union of India, AIR 2005 SC 2920 : (2005) 5 SCC 665. See alsoHans Muller v. Supt.,
Presidency Jail, Calcutta, AIR 1955 SC 367 : (1955) 1 SCR 1284; Anwar v. State of J.&K., AIR 1971 SC 337 : (1971) 3
SCC 104.

53 Gilles Pfciffer v. Union of India, AIR 1996 Madras 322.

54 Abu Saleem Abdul Qayoom Ansari v. State of Maharashtra, (2011) 11 SCC 214 : (2010) 9 SCALE 460.

55 Abdul Rahim Ismail C. Rahimtoola v. State of Bombay, AIR 1959 SC 1315 (1316) : (1960) 1 SCR 285; Izhar Ahmed
v. Union of India, AIR 1962 SC 1052 (1067) : (1962) Supp (3) SCR 235; State of M.P. v. Bharat, AIR 1967 SC 1170
(1172) : (1967) 2 SCR 454.

56 Cf. Pandurangarao v. APSC, AIR 1963 SC 268 (272) : (1963) 1 SCR 707; Rajendra v. State of Madras, AIR 1968
SC 1012 (1015) : (1968) 2 SCR 786.

57 Arun v. State, AIR 1976 Kant 174 (para. 52).

58 Joshi v. State of Bombay, (1955) 1 SCR 1215 (1220) : AIR 1955 SC 334; Vasundara v. State of Mysore, AIR 1971
SC 1439 : (1971) 2 SCC 22; The Author submits that in India, there is only one 'domicile', viz,, that of India [Art. 5 of the
 569

Constitution], and that the concept of domicile in a State shall be unconstitutional, unless sanctioned by some provision
of the Constitution itself e.g., Art s. 35A, 371D.

59 Vide Art. 370 post.

60 L'Hote v. New Orleans, (1900) 177 US 587.

61 UP Avas Evam Vikas Parishad v. RaviKumar Anand, AIR 1995 SC 2076 : 1995 (Supp-3) SCC 182; UP Avas Evam
Vikas Parishad v. Friends Co-operative Housing Society Ltd., AIR 1996 SC 114 : (1995) (Supp-3) SCC 456; Olga Tellis
v. Bombay Municipal Corpn., AIR 1986 SC 180 : (1985) 3 SCC 545; Gauri Shanker v. UOI, AIR 1995 SC 55 : (1994) 6
SCC 349; Gian Devi Anand (Smt.) v. Jeevan Kumar, AIR 1985 SC 796 : 1985 (Supp-1) SCR 1.

62 P.G. Gupta v. State of Gujarat, 1995 (Supp-2) SCC 182 : JT 1995 (2) SC 373. See alsoU.P. Avas Evam Vikas
Parishad v. Friends Co-operative Housing Society Ltd., AIR 1996 SC 114 : 1995 (Supp-3) SCC 456.

63 State of Karnataka v. Narasimhamurthy, AIR 1996 SC 90 : (1995) 5 SCC 524; P.G. Gupta v. State of Gujarat, 1995
(Supp-2) SCC 182; UP Avas Evum Vikas Parishad v. Friends Co-operative Housing Society Ltd., AIR 1996 SC 114 :
1995 (Supp-3) SCC 456.

64 P.G. Gupta v. State of Gujarat, 1995 (Supp-2) SCC 182 : JT 1995 (2) SC 373 (supra).

65 Chameli Singh v. State of U.P., AIR 1996 SC 105 : (1996) 2 SCC 549.

66 State of Karnataka v. Narasimhamurthy, (1995) 5 SCC 524 : AIR 1996 SC 90.

67 State of W. B. v. Kailash Chandra Kapur, AIR 1997 SC 1348 : (1997) 2 SCC 387.

68 Shiv Sagar Tiwari v. Union of India, AIR 1997 SC 2725 : (1997) 1 SCC 444.

69 Shanti Star Builders v. Narayan Khimalal Totame, AIR 1990 SC 630 : (1990) 1 SCC 520.

70 Gowri Shanker v. UOI, AIR 1995 SC 55 : (1994) 6 SCC 349.

71 Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, AIR 1997 SC 152 : (1997) 11 SCC 121. See alsoLok
Adhikar Sangh v. State of Gujarat, AIR 2002 Guj 59; Almitra H. Patel v. UOI, AIR 2000 SC 1256 : (2000) 2 SCC 679.

72 P. Mohan v. State of Tamil Nadu, (1997) 2 CTC 157(Mad) ; See alsoDurga Prasad v. State of U.P., 1999 AIHC
4534(All)

73 State of U.P. v. Kaushailiya, AIR 1964 SC 416 : (1964) 4 SCR 1002.

74 Kishorilal v. State, AIR 1957 Punj 244.

75 AIR 1953 Assam 61.

76 Sarbananda Sonowal v. UOI, AIR 2005 SC 2920 : (2005) 5 SCC 665; Louis De Raedt v. UOI, AIR 1991 SC 1886 :
(1991) 3 SCC 554; State of Arunachal Pradesh v. Khudiram Chakma, AIR 1994 SC 1461 : 1994 (Supp-1) SCC 615.

77 Hasan Ali Rahany v. UOI, AIR 2006 SC 1714 : (2006) 3 SCC 705; National Human Rights Commission v. State of
Arunachal Pradesh, AIR 1996 SC 1234 : (1996) 1 SCC 742.

78 Seetharamma v. Sambasiva, AIR 1964 AP 400.

79 State of U.P. v. Kaushailiya, AIR 1964 SC 416 : (1971) 2 SCC 1002.

80 Ebrahim v. State of Bombay, (1954) SCR 933 (990) : AIR 1954 SC 229; Abdul Rahim Ismail C. Rahimtoola v. State
of Bombay, AIR 1959 SC 1315 (1316) : (1960) 1 SCR 285; Chinese Exclusion Case, (1889) 120 US 581; Nishimura v.
U.S., (1892) 142 US 651.

81 U.P. Avas Evam Vikas Parishad v. Friends Co-operative Housing Society Ltd., AIR 1996 SC 114.

82 Chinese Exclusion case, (1889) 120 US 581; Nishimura v. U.S., (1892) 142 US 651.

83 Such as 'procedural due process', which has been held applicable in the case of re-entry of an alien permanently
resident in the United States, who had been abroad temporarily [Kwong Hai v. Colding, (1953) 344 US 590].

84 U.S. v. Shaughnessy, (1950) 338 US 537.

85 (1893) 149 US 698.

 570

86 (2001) 533 US 678.

87 Kent v. Dulles, (1957) 357 US 116.

88 Kishorilal v. State, AIR 1957 Punj 244. See alsoAbdul Rahim v. State of Bombay, AIR 1959 SC 1315 : (1960) 1 SCR
285.

89 Kishorilal v. State, AIR 1957 Punj 244. See alsoAbdul Rahim v. State of Bombay, AIR 1959 SC 1315 : (1960) 1 SCR
285.

90 V.G. Row v. State of Madras, AIR 1954 Madras 240.

91 Abdul Rahim Ismail C. Rahimtoola v. State of Bombay, AIR 1959 SC 1315 (supra).

92 Author's Constitution Amendment Acts.

93 State of M.P. v. Bharat Singh Thakur, AIR 1967 SC 1170 : (1967) 2 SCR 454.

94 Ebrahim v. State of Bombay, (1954) SCR 933 (990) : AIR 1954 SC 229.

95 Author's Constitution Amendment Acts.

96 Waman v. Union of India, AIR 1981 SC 271 : (1981) 2 SCC 362 (para. 12); B.S.E. Bd. v. Bihar E.S.C, AIR 1982 Cal
74 (paras. 20-25); Salabuddin Mohamed Yunus v. State of A.P., AIR 1984 SC 1905 : 1984 Supp SCC 399 (para. 6).

97 State of Maharashtra v. Kamal, AIR 1985 SC 119 : (1985) 1 SCC 234 (para. 27); Manchegowda v. State of
Karnataka, AIR 1984 SC 1151 : (1984) 3 SCC 301 (para. 17).

98 AIR 1997 SC 3828 : (1997) 6 SCC 623.

99 Kaiser-I-Hind Pvt. Ltd. v. National Textiles Corporation, AIR 2002 SC 3404 : (2002) 8 SCC 182.

100 Patel v. State, AIR 1985 Mad 119 (para. 8).

101 C 6, Vol. P. p. 8, f.n. 12; Vij Resins v. State of J&K, AIR 1989 SC 1629 : (1989) 3 SCC 115 (paras. 11, 24); Madan
Mohan Pathak v. Union of India, AIR 1978 SC 803 : (1978) 2 SCC 50.

102 See also Constitution of Eire, 1937, Art. 43; Bangladesh, 1972, Art. 42 [SCW. (3rd), pp. 201, 387].

103 Cf. Moghul Steamship Co. v. McGregor, Gow & Co., (1892) AC 25; Sorrell v. Smith, (1925) AC 700.

104 LORD PARKER in Adelaide Steamship Co. case, (1913) AC 718(PC) .

105 Halsbury's Laws of England, Hailstorm Edn., Vol. 33.

106 MacDermott, Protection from Power, 1457, pp. 155 ff; Hood Phillips, 1987, p. 530; Wade & Bradley, 1985, pp. 497
ff.

However, as in the case of other individual rights, the right to carry on a trade or profession is, in
England, based on a negative concept, namely, that the individual is free unless he is restricted by
law. Apart from the common law restrictions a large number of restrictions have been imposed by
statute (see post), in the present century, inspired by the ideal of a welfare State. 1 Many of the private
enterprises are now regulated and some others have been altogether take over by the State, while
there are others which are prohibited, in the interests of the general public. There has thus been a
swing from laissez faire to the opposite pole of social control.2
U.S.A.
(B) U.S.A.--In the Constitution of the United States, there is no specified provision guaranteeing this
right;3 but freedom of trade, business and profession has been held, by judicial interpretation, to follow
from the rights of liberty and property (guaranteed by the Fourteenth Amendment) subject to
restrictions imposed by the State in the interests of the common good. 4 The 'liberty' which is
guaranteed by the 5th and the 14th Amendments is right to hold a specific private employment and to
 571

follow a chosen profession, free from unreasonable interference. 5 In the oft-quoted case of Allgeyer v.
Louisiana ,6 the Supreme Court observed--
"The 'liberty' mentioned in the 14th Amendment means not only the right of a citizen to be free from
mere physical restraint of his person as by incarceration, but the term is deemed to embrance the right
of the citizen to be free in the engagement of all his faculties...to earn his livelihood by any lawful
calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which
may be properly necessary and essential to his carrying out to a successful conclusion the purposes
above-mentioned".7
It was further held therein, "In the privilege of pursuing an ordinary calling or Trade and of acquiring,
holding and selling property must be ambraced the right to make all proper contracts in relation
thereto, and although it may be conceded that this right to contract or to do business within the
jurisdiction of the State may be regulated and some times prohibited when the contract or business
conflict with policy of the State as contained in its statutes, yet the power does not and cannot extend
to prohibiting a citizen from making contracts of the nature involved in the case outside the limits and
jurisdiction of the State and which are also to be performed outside such jurisdiction."
But, the constitutional right does not include any right to hold employment under the Government or to
carry on any business relations8 with the Government.
In Perkins v. Lukens ,9 the Supreme Court observed--
"Like private individuals and businesses the Government enjoys the unrestricted power to produce its
own suppliers, to determine those with whom it will deal, and to fix the terms and conditions upon
which it will make needed purchases."10
Switzerland
(C) Switzerland.--Article 31 of the Swiss Constitution, 1874 guarantees the freedom of trade and
industry. The Amendment of 1947, however, has added several Articles providing for regulation and
restriction of this freedom in the interests of the public. The more important provisions are--
"Article 31. Freedom of trade and industry is guaranteed throughout the Confederation, except in so
far as it is restricted by the Constitution itself or by laws made under it.
Exception is made for Cantonal regulations of trade and industry and taxation thereof.
Art. 31 bis... 'When the public interest justifies it, the Confederation has the power to make provisions
infringing, if necessary, the freedom of trade and industry.

76a)  to preserve important economic classes, or professions, whose survival is

threatened, and to encourage independent producers in such economic classes or
professions;
79b)  to preserve a strong peasantry, to encourage agriculture, and to strengthen
the position of rural property-owners;
51c)  to protect districts whose economic life is threatened;
19d)  to prevent harmful social or economic effects of cartels or similar
organization.
11e)  to take precautions against the event of, war..."
U.S.S.R.
(D) U.S.S.R.--Article 40 of the Soviet Constitution of 1977 provides 11 --
"ARTICLE 40.--Citizens of the USSR have the right to work (that is, to guaranteed employment and
pay in accordance with the quantity and quality of their work, and not below the state-established
minimum), including the right to choose their trade or profession, type of job and work in accordance
with their inclinations abilities, training and education, with due account of the needs of society.
 572

The right is ensured by the socialist economic system, steady growth of the productive forces, free
vocational and professional training, improvement of skills, training in new trades or professions, and
development of the systems of vocational guidance and job placement." 12
Japan
(E) Japan.--Article 22 says--
"Even person shall have freedom... to choose his occupation to the extent that it does not interfere
with the public welfare."
West Germany
(F) West Germany.--Article 12(1) of the West German Constitution (1948) says--
"1. All Germans shall be free to choose their occupation, place of work, and place of training. Practice
of an occupation may be regulated by legislation."
China
(G) China.--Article 42 of the Constitution of the Chinese Republic, 1982, says--
"ARTICLE 42. Citizens of the People's Republic of China have the right as well as the duty to work.
Using various channels the state creates conditions for employment, strengthens labour protection,
improves working conditions and, on the basis of expanded production, increases remuneration for
work and social benefits.
Work is the glorious duty of every able-bodied citizen. All working people in State enterprises and in
urban and rural economic collectives should perform their tasks with an attitude consonant with their
status as masters of the country. The State promotes socialist labour emulation, and commends and
rewards model and advanced workers. The State encourages citizens to take part in voluntary labour.
The State provides necessary vocational training to citizens before they are employed."
Namibia
(H) Namibia.--Article 21(1)(f) guarantees "all persons shall have the right to practise any profession, or
carry on any occupation, trade or business.
Art. 21(2) provides for reasonable restriction. "The fundamental freedoms referred to in paragraph (1)
shall be exercised subject to the law of Namibia in so far as such law imposes reasonable restrictions
on the exercise of the rights and freedoms conferred by the said paragraph, which are necessary in a
democratic society and are required in the interests of the sovereignty and integrity of Namibia,
national security, public order, decency or morality or in relation to contempt of court, defamation or
incitement to an offence."
Sri Lanka
(I) Sri Lanka--Article 20--(1) Every citizen is entitled to the freedom to engage himself or in association
with others in any lawful occupation, profession, trade, business or enterprise. (2) No restriction shall
be placed on the exercise of the rights declared and recognised by this article other than such
restrictions prescribed by law as are necessary in a democratic society in the interests of national
economy, national security, public order, protection of public health, or morality, the environment or for
securing due recognition and respect for the rights and freedoms of others or in relation to: (a) the
professional, technical, academic, financial and other qualifications necessary for practising any
profession or carrying on any occupation, trade, business or enterprise and the licensing and
disciplinary control of the person entitled to such fundamental right, and (b) the carrying on by the
State, a State agency or a public corporation of any trade, business, industry, service or enterprise
whether to the exclusion, complete or partial of citizens or otherwise".
Brazil
 573

(J) Brazil-- Article 5-- Equality - "All persons are equal before law, without any distinction whatsoever,
and Brazilians and foreigners, residents in Brazil are assured of inviolability of the right to life, liberty,
equality, security and property "on the following terms" (Clause XIII) - the practice of any work, trade
or profession is free, observing the professional qualifications which the law may establish".
Bangladesh
(K) Bangladesh--Article 40 -- "Subject to any restriction imposed by law, every citizen possessing such
qualifi cation, if any, as may be prescribed by law in relation to his profession, occupation, trade or
business shall have the right to enter upon any lawful profession or occupation and to conduct any
lawful trade or business".
Pakistan
(L) Pakistan--Article 18 -- "Subject to such qualifications, if any, as may be prescribed by law, every
citizen shall have the right to enter upon any lawful profession, or occupation and to conduct any
lawful trade or business.
Provided that nothing in this Article shall prevent - (a) the regulation of any trade or profession by
licensing system, (b) the regulation of any trade, commerce or industry in the interest of free
competition therein, (c) the carrying on, by the Federal Government or a Provincial Government, or by
a Corporation controlled by such Government, of any trade, business, industry or service to the
exclusion, completion, or partial of other persons".
INTERNATIONAL CHARTERS

22.  Universal Declaration of Human Rights13, 1948.--Article 23(1) says--

"Everyone has the right to work, to free choice of employment..." Article 29(2) provides--
"In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purposes of securing due recognition
and respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society."
24I.  International Covenant on Economic, Social and Cultural Rights, 1966.14
"Article 6.--

21.  The States Parties to the present Covenant recognize the right to work,
which includes the right of everyone to the opportunity to gain his living by work which he
freely chooses or accepts, and will take appropriate steps to safeguard this right.
25.  The steps to be taken by a State Party to the present Covenant to achieve
the full realization of this right shall include technical and vocational guidance and
training programmes, policies and techniques to achieve steady economic, social and
cultural development and full and productive employment under conditions safeguarding
fundamental political and economic freedoms to the individual."
INDIA
Freedom of profession, trade, business, meaning of
The guarantee under Art. 19(1)(g), extends to practisng any profession, or to carry on any occupation,
trade or business. "Profession" means an occupation carried on by a person by virtue of personal and
specialised qualification, training or skill. The labour and skill involved in a profession, is predominantly
mental or intellectual rather than being physical and manual. The term originally contemplated only
theology, law and medicine; but, as application of science and learning are extended to other
departments of affairs, other vocations also receive the name, which implies professed attainments in
special knowledge as distinguished from mere skill. Thus, one of the significations of "profession" is
occupation. 'Occupation' means that which principally takes up one's thought and energies especially
one's regular business and employment, also, whatever one follows as the means of making a
livelihood. Particular business, profession, trade or calling which engages individual's time and efforts,
 574

employment in which one regularly engages or vocation of his life. 15 The word 'occupation' has a wide
meaning such as any regular work, profession, job, principal activity, employment, business or a
calling in which the individual is engaged. "Trade" in its wider sense includes any bargain or sale, any
occupation or business carried on for subsistence or profit, it is an act of buying any business carried
on with a view to profit whether manual or mercantile.
The word 'trade' is the act or the business of buying and selling for money. It is not a technical word
and is ordinarily used in three senses: (a) in that of exchanging goods or commodities by barter or by
buying or selling for money; (b) in that of a business occupation generally; (c) in that of a mechanical
employment, in contradistinction to the learned profession, agriculture or liberal arts. In short, it is
one's calling, occupation, gainful employment, means of livelihood. 'Trade' means leading the
movement of goods, transactions linked with merchandise or flow of goods, the promotion of buying
and selling, advance borrowing, discounting bills and mercantile documents, banking and other forms
of supply of funds.16
The word "trade" bears the meaning which may be taken from Halsbury's Laws of England17 (a)
exchange of goods for goods for money. (b) any business carried on with a view to profit whether
manual or mercantile as distinguished from the liberal arts or learned profession and from
agriculture.18
The expression, "trade" should not be construed in its technical sense. The business of making plans
and estimates for profits as consulting sanitary engineers and contractors would be included within the
expression "trade".19
"Business" is a very wide term and would include anything which occupies the time, attention and
labour of a man for the purpose of profit. It may include in its form trade, profession, industrial and
commercial operations, purchase and sale of goods and would include anything which is an
occupation as distinguished from "pleasure". The object of using four analogous and overlapping
words in Art. 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the
avenues and modes through which a man may earn his livelihood. In a nutshell, the guarantee takes
into its fold, any act ivity carried on by a citizen of India to earn his living. The activity must be
legitimate and not anti-social like gambling, trafficking in women and the like. 20
The word "business" is more comprehensive than the word "trade", since, it will include manufacture
which the word "trade" may not ordinarily include. The primary meaning of this word "trade" is the
exchange of goods or goods for money. However, the word "trade" has also a secondary meaning,
viz., "business carried on with a view to profit". In fact the words "trade" and "industry" are also used
interchangeably many times. It all depends on the context in which the words occur. The word "trade"
may include all the connotations of the word "business". 21
Establishing and administering an educational institution for imparting knowledge to students is an
"occupation" protected by Art. 19(1)(g) and additionally by Art. 26(a), if there is no element of profit
generation. As of now, imparting education has come as a means of livelihood for some professionals
and a mission in life for some altruists. Education, accepted as a useful act ivity, whether for charity or
for profit, is an occupation. Nevertheless, it does not cease to be a service to society. And even though
it is an 'occupation', it cannot be equated with a "trade" or a "business". Profession has to be
distinguished from "business" or a mere occupation. It has, however, been held that a profession is
ordinarily an occupation requiring intellectual skill, often coupled with manual skill. 22 The court also
held that the word "business" is ordinarily more comprehensive than the word "trade" but, one is used
as synonymous with the other.23 In the Safdarjung Hospital case,24 the court held that the word
'business' is of wide import. In one sense it includes all occupation and profession. But in the
collocation of the terms and their definitions, these terms have a definite economic context of a
particular type and have been uniformly accepted as excluding professions and are only concerned
with the production, distribution and consumption of wealth and the production and availability of
material services. In an earlier case, the Supreme Court observed that "the word "business" connotes
some real, substantial and systematic or organised centre of activity or conduct with a set purpose,
but no general principle could be laid down which would be applicable to all cases and that each case
must be decided on its own cirucumstances according to ordinary commonsense principle as to what
 575

business is".25 While in business, and to a certain extent in occupation, there is a profit motive,
profession is primarily a service to a society where earning is secondary or incidental. 26
Whether politics is profession or occupation, it was held that it is either or both. Whether praised or
denounced, it remains a profession. Where a person has shown his interest in politics and is
Chairman of a political party, and it is clear that his interest in politics is neither casual nor sporadic,
but abiding and ambitious, he is engaged in occupation or profession. 27
Any act ivity not regarded as trade or business falls outside the purview of Art. 19(1)(g) and hence the
validity of law regulating any such activity need not be decided upon the reasonableness and public
interest as provided in Art. 19(6). Liquor trade, betting and gambling are such instances.
An act ivity caused by this interpretation does not necessarily qualify to be trade, business or
profession for the purpose of protection under Art. 19(1)(g). Certain activities are denied this protection
in the interests of the society. In Fatehchand Himmatlal v. State of Maharashtra ,28 referring to the
money lending act ivity, JUSTICE KRISHNA IYER said that, "every systematic profit oriented activity,
however sinister, suppressive or socially diabolic cannot ipso factoexalt into 'trade'. State act ion,
defending the weaker sections of the society from social injustice and all forms of exploitation and
raising standards of living of the people, necessarily imply that economic activities, attributed as trade
or business or commerce can be derecognised as trade or business. There are thus, certain act ivities
like activities in crime, immoral traffic, intoxicants, adulterated foodstuff, etc. which, it has been held,
can under no circumstances be regarded as trade or business and are thus, not protected by Art.
19(1)(g) of the Constitution.
Gambling act ivities from their very nature and in their essence, are 'extracommercium' although the
external forms, formalities and instruments of trade may be employed and they are not protected
either by Art. 19(1)(g) or Art. 301. Referring to Part IV of the Constitution also wherein, the ideal of a
'Welfare State' had been enshrined, it was observed: "It is difficult to accept the contention that those
activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which
lead to the loss of hard earned money of the undiscerning and improvident common man and thereby
lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt
the peace and happiness of his humble home could possibly have been intended by our Constitution
makers to be raised to the status trade, commerce or intercourse and made subject matter of a
fundamental right by Art. 19(1)(g).29
Prize chits serve no social purpose, but are prejudicial to public interest as they exploit the poor
people and so hese can be totally banned.30 Lotteries are also not protected under Art. 19(1)(g). 31
Commenting on Art. 18 of Pakistan Constitution, Justice (R) Fazal Karim, (Retd. judge, Pakistan
Supreme Court) in his book on Judicial Review of Public Action,32 has stated thus:--
Meaning of 'Business', 'Profession'etc.
In granting the right, Art. 18 uses the expressions, 'profession or occupation' and 'trade or business',
without defining those expressions. These are all general terms, applicable to many objects and as
will be seen they run into each other.
'Profession' means a vocation or occupation, requiring special, usually advanced, education,
knowledge and skill; e.g., law or medical professions. The labour and skill involved in a profession is
predominantly mental or intellectual, rather than physical or manual. The term originally contemplated
only theology, law and medicine, but as applications of science and learning are extended to other
departments of affairs, other vocations also receive the name, which implies professed attainments in
special knowledge as distinguished from mere skills.
Thus, one of the significance of 'profession' is occupation. 'Occupation' means that, which principally
takes up one's time, thought, and energies, especially one's regular business or employment; also,
whatever one follows as the means of making a livelihood; particular business, profession, trade, or
calling, which engages and individual's time and efforts, and employment in which one regularly
engages or a person's vocation.
 576

The word 'business' is a word of very wide signification; it means employment, occupation, profession,
or commercial act ivity engaged in for gain or livelihood.
The word 'trade' is the act or the business of buying and selling for money. It is not a technical word
and is ordinarily used in three senses: (i) in that of exchanging goods or commodities by barter or by
buying and selling for money; (ii) in that of a business occupation generally; (iii) in that of a mechanical
employment, in contradistinction to the learned professions, agriculture or the liberal arts. In short, it is
one's calling, occupation, gainful employment, means of "livelihood". [For the meanings of these
expressions, we are indebted to Black's Law Dictionary, 6th Edn., these expressions "trade",
"business" and "profession" are often used in tax laws. The expression "trade or business" prima facie
embraces a profession, where the profits of the latter are wholly or mainly dependent on the personal
qualifications of the individual who is carrying on the profession, from the cases, it can be deduced
that the essence of a profession is that it involves the idea of an occupation requiring purely
intellectual skill or, where manual skill is involved as in the case of painter or surgeon, what should be
controlled by the intellectual skill of the operator.
Thus, the word "trade" is capable of bearing a variety of meanings according to the context in which it
is used. In its most restricted sense, it means the buying and selling of goods, but in a slightly wider
sense, it includes the buying of and selling of goods, but in a slightly wider sense, it includes the
buying of and selling of land; there is no reason to exclude, in an appropriate context, the buying and
selling of chooses in act ion. It is commonly used to denote operations of a commercial character by
which the trade provides to customers for reward some kind of goods or service. 33
It will be noticed that while in the main body of Art. 18, four words, 'profession', 'occupation', 'trade' and
'business' have been used, in the Proviso, Clause (a), the words 'trade', and 'profession', in Clause (b)
the words 'trade', 'commerce' and 'industry', and in Clause (c) the words 'trade', 'business', 'industry' or
'service' have been used. The use of the additional words, 'commerce', 'industry' and 'service' in the
Proviso obviously does not mean that these are additional subjects to which the protection of Art. 18
extends, in addition to the four subjects named in the body of Art. 18; rather it means that the main
body and the Proviso must be read together and that the Proviso proceeds on the assumption that the
additional subjects of commerce, industry and service are included in the subjects of 'profession',
'occupation', 'trade' and 'business'.
The term, 'commerce' has been used in the American Constitution: "Congress shall have power to
regulate commerce with foreign nations, and among the several states, and with the Indian tribes" and
was in that precedent setting decision34, defined in expansive terms. It was held that it was a general
term applicable to many objects. 'Commerce', it was held, undoubtedly is traffic, but it is something
more; it is intercourse. However, it describes the commercial intercourse between nations, and parts
of nations, in all its branches and is regulated by prescribing rules for carrying on that intercourse. The
word used in the Constitution comprehends and has been always understood to comprehend
navigation within its meaning and a power to regulate navigation is as expressly granted as if that term
had been added to the word 'commerce'.
Thus, when in East and West Steamship Company case referred to above, the absence of the word
'business' in Clause (a) of the proviso to Art. 18 was used to argue that what the petitioners were
carrying on was the business of shipping and not a trade and therefore it was beyond the power of the
Legislature to regulate the business of shipping by a licensing system. It was observed that "there is a
host of precedents in American case law, including decisions of the Federal Supreme Court, to the
effect that the power to regulate commerce includes the power to regulate manufacture, agriculture
and transport. JOHNSON, J, in the celebrated case of Gibbons v. Ogden ,35 while referring to the
power of Congress to control navigation said: "I do not regard it as a power incidental to that of
regulating commerce; I consider it as the thing itself, inseparable from it as vital motion is from vital
existence". And as regards the carrying trade in general he remarked, "ship-building, the carrying
trade and propagation of seamen are such vital agents of commercial prosperity that the nation which
could not legislate over these subjects would not possess power to regulate commerce". As it is of the
very essence of trade that merchandise should move from one place to another, the carriage of goods
for purposes of commerce, by sea or by land, by rail, tramway or motor vehicles is essentially a trade
activity.
 577

Trade cannot be confined to the movement of goods but may also extend to transactions linked with
merchandise or the flow of goods or the promotion of buying and selling or advances, borrowings,
discounting bills and merchantile documents, banking and other forms of supply of funds. Business
undertaken by financial institutions, accepting deposits as a promise of wooing to pay a higher rate of
interest and circulate the money to third parties for higher rate of interest, amounts to trade. It is a
trade in finance and could be regulated.36
The word 'trade' is capable of carrying a variety of meanings according to the context in which it is
used. In its most restricted sense, it means the 'buying and selling of goods', but in a slightly wider
sense, it includes the buying of and selling of land; there is no reason to exclude, in an appropriate
context, the buying and selling of chooses-in-action. It is commonly used to denote operation of a
commercial character by which trade provides to customers for reward some kind of goods or
service.37

23.  This freedom means that every citizen has the right to choose his own
employment or to take up any trade or calling, subject only to the limits as may be
imposed by the State in the interests of the public welfare, and the other grounds
mentioned in Cl. (6).38
Our Constitution does not recognise 'franchises'39 or rights to business which are
dependent on grants made by the State, or 'business affected with public interest',
meaning, businesses which are particularly liable to control by the State. Under our
Constitution, any citizen has the right to engage in any business which is known to the
common law, as of right, and the State has the power to regulate or restrict any business
on the grounds specified in Cl. (6).40 Thus, every citizen has a right to sell vegetables in
the public market41 or to carry on the business of transport on the public streets, 42 subject
only to restrictions as are warranted by Cl. (6) of Art. 19.
25I.  The right guaranteed by Art. 19(1)(g) cannot be lost by waiver or even
express agreement with the State.43
16II.  On the other hand--

13)  The right guaranteed by this sub-clause is the natural right to enter into or
carry on trade, profession or calling which every person has, as the member of a
civilised society, anterior to and independent of any legislation or grant by the State 44,
e.g.,--
14. To carry on a business of transport on the highway; 45
14. To sell one's goods in the public market;46
11. To hold a market on one's own land;
27. (iv) To rum an educational institution.
28. The term 'occupation" occurring in Art. 19(1)(g), comprehends the
establishment of educational institution. Earlier, the Supreme Court had held that
education can never be a trade, business or profession, but refrained from
expressing an opinion as to whether, it could come within the meaning of Art.
19(1)(g).47 In another part of the same judgment, however, it was held that,
'education' could perhaps fall under the category of "occupation". In TMA Pai's
case, 'education' was held as a recognised head of "charity". 48 But where the
educational institution goes beyond "charity" and into commercialisation, it would
not be entitled to the protection of Art. 19(1)(g).
29. The word 'occupation' has a wider, meaning such as any regular work,
profession, job, principal act ivity, employment, business or a calling in which an
individual is engaged. The object of using four analogous and overlapping words
in Art. 19(1)(g) is to make the guaranteed right as comprehensive as possible to
 578

include all the avenues and modes through which a man may earn his livelihood.
In a nutshell, the guarantee takes into its fold any activity carried on by a citizen of
India to earn his living.49

15)  Where the right to carry on any profession is created by a statute, the
exercise of that right is subject to the terms and conditions imposed by the statute and
no fundamental right is infringed by such terms and conditions. 50
Hence,
15. There is no violation of the present clause, where a legal practitioner is
prohibited51 from appearing before a court52 or tribunal53 or his right to appear is
made subject to permission of the tribunal.54
15. On the same principle, it has been held that there being no fundamental
right to stand as a candidate for election to a municipal body, there is no
infringement of any fundamental right if the Legislature lays down that if a person
wants to stand as a candidate for election, he shall not either be employed as a
paid legal practitioner on behalf of the municipality or act as a legal practitioner
against the municipality.55 The right to contest an election being a statutory right, a
provision that a person shall be disqualified for being chosen as and for being a
member of a municipality, if he has more than two living children is neither
arbitrary, nor unreasonable nor unjust.56 It was held in Javed v. State of Haryana ,
57
that even though Part IX having been added to the Constitution, a right to
contest election for an office in the Panchayat may be said to be a constitutional
right,--a right originating in the Constitution and given shape by a statute, cannot
be equated with a fundamental right and hence, the disqualification for a person
having more than two living children to hold an office is valid.
12. There is no fundamental right of any assessee to be taxed in the area in
which he carries on the business or in any other locality of his choice. 58
7. There is no fundamental right to get an export or import licence. 59
30. Though, Art. 19(1)(g) guarantees the fundamental right to engage in any
profession, where a statute prescribes any standard, the same has to be
complied with. The Medical Council Act, 1956 was passed to ensure professional
standards for practising allopathic medicine. When law prescribes certain
professional or technical qualifications necessary for practising any profession or
carrying on any occupation or trade or business, the same is a reasonable
restriction under Art. 19(6) of the Constitution. The regulatory measures on the
exercise of this right, both, with regard to the standard of professional qualification
and the professional conduct, have been applied, keeping in view not only the
right of the medical practitioner, but also the right to life and proper health care of
persons who need medical care and treatment.60

9)  Nor is there any fundamental right to do a thing which can arise only out of a
grant or contract, e.g.,--
16. The right to enter into another's land to catch and carry away fish 61 or to
work a mine on another's land.62 The position is different where the contract
creates proprietary interest, e.g., the right to take away soil or to build upon the
land.63
16. Similarly, there is no common law right to be recognised by the Government
as the agent of a traveller for the purposes of application for passport 64 or as the
publisher of approved text-books.65 A denial of such a claim to a travel agency
cannot accordingly be held to constitute an infringement of its fundamental right to
carry on the business of travel agency.66

5)  Though, a citizen has the fundamental right to carry on any business of his
choice, there is no right to carry on any business which may be inherently dangerous 67 to
 579

the society, so that such business may be absolutely prohibited or permitted to be

carried on, only under the licence of the State, e.g., dealing in liquor,68 betting and
gambling.69
The Supreme Court laid down that 'prize competitions' which are opposed to the public
policy are not trade or business within the meaning of Art. 19(1)(g) or trade, commerce
or intercourse within the meaning of Art. 301 of the Constitution. Gambling act ivities
from their very nature and in essence are extra-commercium, although the external form,
formalities and instruments of trade may be employed. For the same reason, lotteries
are also not protected.70 The State can prohibit every form of dealing of intoxicants, for,
there is no fundamental right to trade or business in intoxicants. 71
There is also no fundamental right to deal either in dangerous drugs 72, or in the case of
adulterated food.73 The Calcutta High Court has ruled that Art. 19(1)(g) does not
guarantee the Fundamental right to carry on a trade or business which generates
pollution. No one has a fundamental right to manufacture, sell and deal in fireworks
which produces sound beyond the permissible limits or which generates pollution, which
would endanger health and public order. 74
Trading in liquor is not a fundamental right. It is a privilege of the State. The State parts
with the privilege for revenue consideration. The permissive privilege to deal in liquor is
not a right at all. Art s. 301-304 are, therefore, inapplicable at the threshold to the activity
of trade in liquor. The freedom guaranteed under Art. 301, is not available to liquor since,
it is a noxious substance and injurious to public health, order and morality. A regulation in
the interest of public health and order takes the case out of Art. 301. This was held in a
majority judgment in the case of State of Punjab v. Devan Modern Breweries Ltd .75
According to the minority view, dealing in a commodity which is governed by a statute
cannot be said as inherently noxious and pernicious. A society cannot condemn a
business nor there exists a presumption, whether, such business is permitted by a
Statute. The Legislature being a final arbiter as to the morality or otherwise of a civilised
society, has also to state as to business in which articles would be criminal in nature.
The society will have no say in the matter... Once the regulations restricting the right to
carry on business in potable liquor are attributed to the reasonable restriction and public
interest clause contained in Art. 19(6), the fundamental right to carry on trade under Art.
19 is conceded. Once such a right is conceded, it cannot be said that, although a person
has a fundamental right to carry on trade or business for the purpose of Art. 19(1)(g),
subject to imposition of reasonable restriction under Art. 19(6), he does not have a right
under Art. 301 or under Art. 14.76
Even though, a person may not have any fundamental right to trade or to do business in
liquor, his right to grant employment or seek employment, when a business is carried on
in terms of the provisions of licence cannot be regulated. The power to give employment
is in the realm of a contract. So long as a contract of employment in a particular trade is
not prohibited in terms of statutory or constitutional scheme, the State intervention in
such cases is not warranted.77
Tobacco has also been declared as deleterious liquor. In T.K. Abraham v. State of
Travancore, Cochin ,78 it was declared that there is no fundamental right to carry on trade
in a commodity like tobacco.
2)  Art. 19(1)(g) does not confer on any individual or association the monopoly
right to carry on any trade or business. Hence, if by reason of any State act ion, an
element of competition is introduced into a trade, the existing trader or traders who might
have been enjoining a monopoly in the trade cannot complain of the infringement of their
fundamental right conferred by this Article.79
By a notification of 1952, the Regional Transport Authority invited applications for permits
to ply small taxis of not exceeding 19 H.P., and not below 10 H.P., at a cheaper tariff than
bigger taxis with a higher H.P. The contention on behalf of the association of existing
 580

bigger taxis was that the notification interfered with their right under Art. 19(1)(g) to carry
on business by reason of the introduction of taxis at cheaper rates.
Negativing this contention, the Supreme Court observed--
"Nobody has denied to the appellants the right to carry on their own occupation and to
ply their taxis. If other persons are also allowed the right to carry on the same occupation
and an element of competition is introduced in the business, that does not, in the
absence of any bad faith on the part of the authorities, amount to a violation of the
fundamental right guaranteed under Art. 19(1)(g) of the Constitution. 80
At the same time, selection of one manufacturer through process of open competition is
not creation of any monopoly and the same is not violative of Art. 19(1)(g). Where notice
inviting tenders for supply of high security vehicle registration plates are open to
response by all, and even if one single manufacturer is ultimately chosen for a region or
State, it cannot be said that the State has created a monopoly of business in favour of a
private.81
The fundamental right of citizens to trade or business under Art. 19(1)(g) has been
interpreted to mean, as not to include, the right to carry on the business, whenever he
chooses, which is subject to reasonable restriction. In T.B. Ibrahim v. RTO ,82 the
petitioner challenged the order of RTA shifting a bus terminal from the place where he
has been carrying on the business of running the buses to another place, as violative of
Art. 19(1)(g). The court, upholding the order of shifting as a reasonable restriction,
imposed from the point of view of public convenience and that no one has a fundamental
right to carry on business wherever he chooses.83
Under the regulation framed under the Telecom Regulatory Authority of India Act , 1997
a broadcaster cannot create a monopoly. He may appoint an agent, but not an agent-
cum-distributor in which case, the operators had to depend on the agent cum-distributor,
which means that the arrangement creates a monopoly which is violative of Art. 19(1)
(g).84
The rights under Art. 19(1)(g) are very broad. The 'hawkers' and 'squatters' have a
fundamental right to carry on business on the public streets, but the same should be
regulated as they are subjected to reasonable restriction under Art. 19(6). The right of a
hawker to transact business, while going from place to place, is recognised in India for a
long period. The right of hawking for carrying on business on the streets cannot be
denied if they are properly regulated. The streets in India are vested in the municipalities
and they have to be used by the municipalities as trustees. The hawkers' and squatters'
or vendors' right to carry on hawking under Art. 19(1)(g), which conflicts with the rights of
commuters to move freely and use the roads without any impediment under Art. 19(1)(d)
must be harmonised and regulated by subjecting them to reasonable restriction only
under a law. Nothing short of a law can impose reasonable restriction on a citizen's
fundamental right to carry on hawking under Art. 19(1)(g). The fundamental right of
hawkers, just because they are poor and unorganised, cannot be left in a state of limbo,
nor can it be left to be decided by the varying standards of a scheme which changes
from time to time under the Order of the Courts. Considering that an alarming
percentage of population in our country lives below the poverty line, when citizens, by
gathering meager resources, try to employ themselves as hawkers and street traders,
they cannot be subjected to deprivation on the pretext that they have no right. Street
trading is recognised even in England, when there is complete social security and the
citizens are not driven to the streets to make out a living out of poverty and sheer
unemployment.85
Hawking or squatting in a non-hawking zone cannot be permitted. Police have a duty to
remove the violating person in such cases. Any disobedience by the police in not
implementing the court's order is liable for contempt of court. 86
 581

Hawking may not be permitted where, e.g., due to narrowness of the road, free flow of
traffic or movement of pedestrians is hindered or where for security reasons an area is
required to be kept free or near hospitals, places of worship, etc. 87 The earlier decision in
Olga Tellis v. Bombay Municipal Corpn .,88 that the right to hawking is a right under Art.
21, was overruled in Sodan Singh v. New Delhi Municipal Committee .89 It was also
declared in the later case, that hawking could be totally prohibited in certain areas. It was
held that since the individual cannot choose his place of choice, but at the same time
hawking is a fundamental right, it is for the State to designate the streets and earmark
the places from where street trading can be done. Inaction on the part of the State would
amount to negativing the fundamental right and if the State fails to do the needful, the
Court will have to protect the rights. Where a Scheme is prepared to provide space for
pavement hawking, the traders must restrict themselves to the exact area allotted. 90
The court has also said that no permission could be given to eligible squatters to stay in
non-squatting areas till a final allotment or alternative site is made. 91 The Supreme Court
gave various directions to the State and the local authority as to how a trade or business
by hawkers and squatters can be regulated.92
The problem of pavement hawkers has come before the Supreme Court in a number of
cases. A Constitution Bench of the Supreme Court explained the scope of Art. 19(1)(g)
with reference to pavement hawkers and laid down the following guidelines: (1)
Pavement hawkers have a right to carry on trade on pavement of roads but subject to
restriction under Art. 19(6); (2) This right is basically meant for poor hawkers and not for
sellers of luxury smuggled goods; (3) Hawkers or squatters have no right to occupy any
particular place or pavement nor can they assert their right to permanently occupy
specific places demarcated on pavement; (4) Hawking may be totally prohibited in
certain areas; (5) Right to carry on trade or business is not covered by Art. 21 and hence
they cannot claim right under Art. 21.93
The right to carry on trade or business mentioned in Art. 19(1)(g) on street pavements, if
properly regulated, cannot be denied on the ground that streets are made exclusively for
passing and re-passing and for no other use. Proper regulation is however, a necessary
condition, as otherwise, the very object of laying out roads to facilitate traffic will be
defeated.94 Hawker trade so long as it is properly regulated by the public authorities
could never be a public nuisance and it rather serves for the convenience of the public
and is found not only in India, but also in other countries. 95
In a matter relating to eviction of illegal squatters occupying railway property and also
areas around Rabindra Sarabar, the Calcutta High Court directed the railway
administration and the State of West Bengal to provide sanitary facilities to squatters as
an interim measure. The Union of India went to the Supreme Court contending that the
High Court ought to have directed police assistance for eviction and rather than
providing them with further benefit, as such occupation was causing danger to the
passengers and the goods carried by railway and also causing pollution. The Supreme
Court directed that the High Court should take necessary steps to give effect to the
orders of eviction passed by the competent authorities. 96
Even though, every citizen has a right guaranteed under Art. 19(1)(g) to trade or
business, no one can claim exclusive right to do business in any particular area. One
cable operator cannot claim that he alone will provide facility to customers, which would
amount to monopoly in favour of any single person. 97
In the exercise of the power conferred by Rule 62(2)(r) of the Motor Vehicles Rules, the
Transport Authority had made a resolution directing that a bus-stand should not be used
for certain specified journeys, by reason of which the Petitioner, who was a licensee of
that busstand, was affected.
Held, that though under Art. 19(1)(g), a citizen had the right to carry on any trade,
occupation or business, it was not an absolute right but was subject to reasonable
 582

restrictions imposed under Clause (6). Thus, the right guaranteed by Clause (1)(g) was
not an unrestricted right to carry on any business anywhere. The state might impose
reasonable restrictions as to the site where a business may be carried on, in the
interests of public convenience. The impugned rule (read with the section under which it
was made) authorised the regulation of the starting places of buses in the interests of
public convenience and was, accordingly, saved by Cl. (6). 98
1)  What is guaranteed by Art. 19(1)(g) is a broad and general right which is
available to every citizen to do work of any kind, according to his choice. But it does not
confer any right to hold a particular job or to hold a particular Post of one's, own choice. 99
Hence, this right is not infringed by the termination of one's employment owing to the abolition of the
post in which he was working or the closure of the factory where he was working. 100
Even though the workers may have an interest in the manner in which the company is conducting its
business, inasmuch as the policy of disinvestment may have an impact on workers' rights,
nevertheless it is an incidence of service for an employee to accept the decision of the employer
which has been honestly taken and which is not contrary to law. Even a Government servant who is
protected not only under Art s. 14 and 16, but is also covered under Art. 311, has no absolute right to
remain in service. Apart from disciplinary act ion, the services of a Government servant can be
terminated when the post is abolished. If such an employee cannot make a grievance based on Part
III of the Constitution, or under Art. 311, then it cannot stand to reason how a non-Government servant
can challenge a Government policy of disinvestment. In such cases, the principles of natural justice
also cannot apply and the workers need not be heard. 101
On the other hand, the right guaranteed by Art. 19(1)(g) may be violated--
By a law which prevents a certain category of workers in a particular factory. 102
In the USA, the right to trade, business, etc. is subject to restriction. The restrictions are imposed
under the due process clause. The Supreme Court of America has laid down that when a particular
trade or business becomes "affected with public interest", the State gets the right to restrict it in
exercise of the 'Police Power', a doctrine which is not acceptable to the Indian Constitution. 103
Right to close a business

22.  The right to carry on a business includes the right to close it at any time the
owner likes.104 It is an integral part of the fundamental right to do a business, though it
cannot be placed as high as the right not to start and carry on a business at all. 105
26.  But this right may be subjected to reasonable restrictions in the interests of
the general public,106e.g., when the business carried on is a public utility service or when
the closure assumes the form of a 'lock-out' and raises an industrial dispute which the
Legislature wants to prevent.107
The Legislature may also require the employers to pay compensation to the employees
in case of retrenchment or closure, under particular circumstances, in order to mitigate
the hardships of sudden unemployment.1
"In the interest of the general public" must be adjudged not in the background of any
theoretical standards or pre-determined patterns, but in the light of the nature and
incidents of the right, the interest of the general public sought to be secured by imposing
the restriction and reasonableness of the quality and extent of the fetter upon the right. 2
Reasonable restriction in the interest of the general public is dependent upon the nature
of the business, the place and time where it is intended to be carried on, its effect on
others, the stage of social development and many other factors which might change with
the passing of time and with the development of society. It was further observed that
judges, on whom the duty of deciding this question lies, will have to consider it divorced
as far as they can from their own personal, political or economic views. 3 To the same
effect are the observations made by the Kerala High Court, which said, "the words 'in the
interest of general public' are of wide import comprehending public order, public health,
 583

public security, public morals, economic welfare of the community and the object
mentioned in Part IV of the Constitution".4
In Excel Wear Mfg. Co. v. UOI ,5 the Supreme Court reiterated the view that the right to
close down the business was an integral part of the right to carry it on. The Court said
that if one does not start a business at all, then perhaps, under no circumstance can he
be compelled to start one, and if he had started a business, he had also the right to
close it down. It is wrong to say that the employer has no right to close a business once
he starts it. However, as no right is absolute in its scope, so is the nature of this right.
The court also said that while no one can be compelled to start a business, the same
cannot be equated with the right to close it down. It can be restricted, regulated or
controlled by law in the interest of the general public. The law may provide to deter the
reckless, unfair, unjust or mala fide closure, but not to permit the employer to close
down, for, essentially, it amounts to an interference with his fundamental right to carry on
business.
The validity of s. 25-O after its amendment pursuant to Excel Wear case (supra) was
challenged before the Supreme Court in Orissa Textile & Steel Ltd. v. State of Orissa .6
Court said that the Government order granting or refusing permission must be in writing
and be a reasoned order. The Government order was to be passed only after giving
reasonable opportunity both to employer and workmen and any one else interested in
the closure. A review tribunal had also been established. The Government must pass an
order in sixty days failing which the permission should be deemed to have been granted.
The amended provision was held to be valid.
A similar provision under Sections 25-M of the Industrial Disputes Act , 1947 requiring
Government's prior permission to lay off any worker, has been held to be valid. 7 Similar
view was held in relation to s. 25-N which deals with the employer's right to retrench
employees.8
It was held that law recognises that in the interests of general public it is possible to
restrict, for a limited period of time, the right to close down the business. Before passing
an order permitting to close down, regard must be had to the genuineness and
adequacy of the reasons stated by the employer. But merely because the reasons are
genuine and adequate cannot mean that permission to close must necessarily be
granted. Sections 25-O of the Industrial Disputes Act (as amended after the decision
in Excel Wear case (supra) lays down the guidelines which are to be followed by
appropriate Government in granting or refusing permission to close down the business.
It was held that where reasons are genuine and adequate, the interests of the general
public must be of compelling or overriding nature. It is clear from the amended s. 25-O
that if there are exceptional circumstances, then there could be no compulsion to
continue to run the business. There could be cases where the interest of the general
public may require that no closure takes place. When the employer shows that it is
impossible to continue the establishment, permission to close down could be granted.
But "some difficulty or financial hardship" in running the establishment by itself may not
be a sufficient cause.9 Where restrictions are imposed to close down an establishment
with due regard to the Directive Principles of State Policy, it will be presumed to be
reasonable.10
17.  Such restrictions have now been imposed by the Industrial Disputes
(Amendment) Act, 1976, introducing ss. 25-M to 25-S in the Industrial Disputes Act . 11
It is to be noted that a temporary closure of a business has been included in the definition of a 'lock-
out' in s. 2(l) of the Industrial Disputes Act , 1947 (as amended in 1982), so that it may be illegal in the
circumstances mentioned in s. 24 of that Act.
Right to enter into contract
1. The right to enter into a contract relating to property or business is a fundamental right guaranteed
by Art. 19(1)(g). The rights, however, arising under a contract, are not fundamental rights guaranteed
 584

by our Constitution.' It is, accordingly, competent for the State to supersede by legislation contractual
rights and obligations, including those arising under contracts made by the Government itself under
Arts. 298-99.12 Thus, a grant made by the state cannot deprive the Legislature of its power to vary the
terms of the grant or to derogate from it.13 Nor is the State debarred from controlling the prices by
legislation, on the ground that it would affect the incidents of Government contracts. 14
Contract with Government
1. While a citizen has a fundamental right to carry on a trade or business, he has no fundamental right
to insist upon the Government or any other individual for doing business with him. Any individual, as
well as the Government, has got a right to enter into a contract with a particular person 15 or to
determine the persons with whom he or it will deal;16 and no citizen has a fundamental right to insist
upon the Government doing business with him,17 or to obtain recognition from the Government in any
manner18 even though, he may have a right under the ordinary law to sue for specific performance or
damages for breach of contract, in proper cases. 19
The Government must have freedom of contract. In other words, fair play is a necessary concomitant
for an administrative body functioning in an administrative sphere or quasi-administrative sphere. But
such decision will be tested on the application of the 'Wednesbury principles of reasonableness', and
must be free from arbitrariness, nor affected by bias or act uated by mala fides. At the same time, the
right to choose the person with whom the contract is to be entered cannot be termed as an arbitrary
power.20
The Constitution prohibits the Government from arbitrarily choosing a contractorat its will and
pleasure. It has to act reasonably, fairly and in public interest in awarding contract.
While no person has a fundamental right to enter into a contract with the Government, he can insist
that he should not be unfairly treated and discriminated against, to the detriment of public interest. The
insistence of the State to search for an experienced manufacturer with sound financial and technical
capacity cannot be misunderstood. In such cases, greater latitude is required to be conceded to the
State authorities. Unless the terms incorporated are found to be malicious and a misuse of its
statutory powers, tender conditions are unassailable.21 In that case, preferential treatment given to
Small Scale Industrial Units was held valid. Likewise, if a policy decision is taken to purchase
medicines used in the Government Hospitals and dispensaries from Public Sector Undertakings,
without creating any monopoly, but only preference, the same is valid. 22 The Court said that,
'monopoly' as contemplated in Art. 19(6) of the Constitution, is something to the total exclusion of
others. Creation of a small captive market in favour of the State owned undertaking, out of a large
market, can hardly be termed as creating a monopoly. The Court further said that policy restriction can
be imposed by the exercise of executive power of State under Art. 162 of the Constitution. Preference
shown to public sector undertakings, being in the interest of the public cannot be construed as
arbitrary so as to give rise to a contention of violation of Art. 14 of the Constitution.
In order to place an industry owned by the Government as an enduring basis in national interest, it is
possible in appropriate cases that, some concession could be shown to it. The preference shown to
Government companies cannot be considered to be discriminatory as they stand in a different class
altogether and the classification made between the Government companies and others is valid. 23
In cases where the authority or Government, in view of the background of facts, feels that it would be
undesirable to accept the tender of a particular person or company, the same cannot be said to be
irrational or mala fide. Strained relationship between the authority and the contractor can have
implications in working out the contract.24
In Erusian Equipment and Chemicals Ltd. v. State of W.B .,25it was held that the freedom of contract by
the Government "is not and should not be free as an individual", and "whatever its act ivities, the
government is still a government". In Ramana Dayaram Shetty v. International Airport Authority of
India ,26 it was held that, the Government cannot discriminate between individuals in matters of
entering into contracts, and the Government action should be based on the standards which are not
arbitrary or unauthorised. In Food Corporation of India v. Kamadhenu Cattle feed Industries Ltd .,27 it
was held that there is no "unfettered discretion in public law and public authority possesses powers
 585

only to use them for public good. This imposes a duty to act fairly, and to adopt a procedure which is
fair play in action.28Every act ion or decision of the State or its agencies or instrumentalities to give
largesse or confer benefits must be founded on a sound, transparent, discernible and well-defined
policy which shall be made known to the public by publication in the Official Gazette and other
recognised mode of publicity and such policy must be implemented or executed by adopting a non-
discriminatory and non-arbitrary method irrespective of the class or categories of persons proposed to
be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit,
licences by the State and its agencies or instrumentalities should always be done in a fair and
equitable manner and the element of favouritism or nepotism shall not influence the exercise of
discretion, if any conferred upon the particular functionary or officer of the State. There cannot be any
policy, much less a rational policy of allotting land on the basis of application made by individuals,
bodies or organisations or institutions de hors an invitation or advertisement of the State or its
agencies. By entertaining application made by individuals, organisations or institutions for allotment of
land or for the grant of any other type of largesse, State cannot exclude other eligible person from
lodging competing claims. Any allotment of land or grant of other form of largesse by the State or its
agencies or instrumentalities by treating the exercise as a private venture is liable to be treated as
arbitrary, discriminatory or an act of favouritism and/or nepotism violating the soul of Art. 14. 29
While distributing State largesse or Government contracts, a policy decision to give the contract to the
person "First come-first served" is not valid. The principle of FCFS is based on sheer chance and is
per se illegal. It is also susceptible to manipulation, favouritism and misuse by unscrupulous persons.
Whenever a contract is to be awarded or a licence is to be given, public authorities must adopt
transparent and fair method for making selection, so that all eligible persons get a fair opportunity of
competition.30
The right to carry on business implies a right not to carry it on, and nobody can be compelled to carry
on a business against his will.31
The right guaranteed under Art. 19(1)(g) cannot be lost by waiver or even express agreement with the
State.32
2. In short, there is no fundamental right of any citizen to carry on business in the properties or rights
belonging to the Government.33

54i)  While an author or publisher has a fundamental right to print, publish and
sell any book, he has no fundamental right to obtain recognition or approval of the
Government that the books so printed or any of them should be prescribed as text-books
in Government recognised schools.34
51ii)  For the same reason, Government is free to refuse the highest bidder at a
public auction or tenderer and enter into a contract with a person making a lower offer. 35
32iii)  Nor has a citizen Any fundamental right to get and import or export licence. 36
No person can claim a right in the grant of import or export licence enforceable at law merely on the
basis of a policy decision.37 With a view to earn foreign exchange, if under the Import or Export Order,
the Government decides to canalise import or export of a commodity, through any specialised
channel, the import or export licence in that commodity could be refused to individuals. Such
canalisation is not per se an unreasonable restriction and it will be presumed to be in public interest,
unless, the contrary is shown clearly.38
3. On the other hand,--
Even though an individual has no legal right to carry on business with the Government Government
must deal with all persons fairly, reasonably, and in the public interest, 39 and where objective tests or
conditions for eligibility have been prescribed, they must be observed by the authority concerned. 40The
Government ought not to award the contract to someone not fulfilling the prescribed condition of
eligibility. If the authority does so, its act ion becomes discriminatory since it excludes other persons
similarly situate from tendering the contract and the same would be plainly arbitrary and without
 586

reason.41 Once the terms and conditions are prescribed and notified in the advertisement inviting
tenders, the same should not be altered to the advantage of a particular person. 42
Allotment of land earmarked for school pursuant to an advertisement. Therefore, the allottee
surrendering that land and applying for a bigger plot to set up school complex with ICSE norms for
affiliation, Government thereafter allotting a bigger plot in view of initial plot without fresh
advertisement or public offer was held bad. Once the Government has initiated process of
advertisement, it cannot jettison it and allot a new plot to allottee without fresh advertisement. The
latter allotment being in exercise of power on the basis of request by the allottee, it cannot be said that
the Government exercised the power which it has reserved in the advertisement. 43
The trade of tender leaves in the State of Orissa is regulated by the Orissa Kendu Leaves (Control of
Trade) Act, 1961 and this Act created monopoly in favour of the State so far as the purchase of tender
leaves from growers and pluckers was concerned. Section 10 of the Act authorised the Government to
sell or otherwise dispose of tender leaves purchased in such manner as the Government might direct.
The Government first evolved a scheme under which it offered to renew the licence to those traders,
who, in its view, had worked satisfactorily in the previous year and had regularly paid the amount due
from them. The Government withdrew the scheme and instead, decided to invite tenders for advance
purchase of tender leaves, but restricted the invitation to those individuals who had carried out
contracts in the previous year without default and to the satisfaction of Government. This method of
sale was challenged as violative of Arts.14 and 19(1)(g) of Constitution. Supreme Court accepted the
plea of petitioners. Court pointed out that original scheme of offering to entering into contracts with old
licences and renew their term was open to grave objection, since it sought arbitrarily to exclude many
persons interested in the trade and the new scheme under which the Government arbitrarily to
exclude many persons interested in the trade and the new scheme under which the Government
restricted the invitation to make efforts to those traders who had carried out their contracts in the
previous year without default and to the satisfaction of the Government, was also objectionable since,
the right to make tenders for the purchase of tender leaves being restricted to a limited class of
persons, it effectively shut out all other persons carrying on trade in tender leaves and also the new
entrants into that business and hence it was ex facie discriminatory and imposed unreasonable
restriction upon the right of persons other than the existing contractors to carry on the business. Both
the schemes were held as violative of Arts.14 and 19(1)(g) because they give rise to a monopoly in
the trade in tender leaves to certain traders and singled out other traders for discriminatory
treatment.44
While entering into a contract by inviting tenders, the principles under Art. 14 must also be kept in
mind.45 Ordinarily, a contract ought to be awarded after inviting tenders for the purpose.
For the same reason, there will be an infringement of Art. 19(1)(g), if a person is, blacklisted from
Government contracts on arbitrary grounds.46
4.

77a)  Though no person has a fundamental right to insist that the Government
must enter into a contract with him, Government may be liable for infringement of his
fundamental right on other grounds, while refusing to contract with him:
Even in the matter of Government contracts, every citizen is entitled to equal treatment and equal
opportunity others who offer tender or quotations for such contract. Hence, there may be violation of
Art. 14 if the Government puts a person on 'black list' and debars him from getting public contract,
without giving him an opportunity to represent his case before he is put on the blacklist. 47 Such
treatment by the Government constitutes discrimination. 48
See also (1) Police Uniforms Procedure Centre v. D.G. & I.G. of Police ,49 (2) J.K. Enterprises v. State
of M.P .50However, in case where a private contractor had been blacklisted for four years, there is no
question of giving a show-cause notice before not awarding contract to him. The concerned
Government authority can take note of the existing order and act accordingly. 51
 587

There is no requirement, however, that before blacklisting, the Government or the Government
Agency concerned should obtain adjudication as to genuineness of its claim against the person
sought to be blacklisted or de-listed.
The consequences of blacklisting are of great magnitude which warrant that before taking an action
there should be material on record prima facie to indicate that the person concerned deserved the
treatment of blacklisting.52

80b)  In carrying on the business of its own, Government may be liable for
violation of the Constitution, e.g., Art. 14, where the Government, in engaging its agents
for a monopoly business, makes discrimination between citizens irrespective of any
public interest.53
Right of a lawyer to practise
The legal profession is a professional act ivity, and not a commercial activity. 54
The right of a lawyer to practise is not a natural or absolute right, 55 but is subject to the terms and
conditions laid down in the statute which, enables him to, practise, e.g., the Bar Council Act. What Art.
19(1)(g) guarantees is that limited right to practise, subject to the terms imposed by the statute, which
gives him the statutory right to be enrolled and to practise. Hence, when that statutory right is
expressly subject to 'any other law for the time-being in force' and a law prescribes that a lawyer shall
have no authority to appear before a particular tribunal or authority, no fundamental right is infringed. 56
The right to practise is a statutory right which is a restricted right. It is not absolute and is not free from
restrictions and is not without limitation. Advocate's right to appear before an authority or a person can
be denied by a law that may be framed by competent Legislature. Therefore, a right to practise which
is not only a statutory right under Advocates Act , but also a fundamental right under Art. 19(1)(g) is
subject to reasonable restriction. Legislature is entitled to make a law relating to professional or
technical qualification necessary for carrying out that profession. Limited restrictions on appearance of
advocates before specialised or specific tribunals are neither violative of fundamental rights nor do
they amount to denial of equality under Art. 14. Rule 7 of Chapter III of the Bar Council of India Rules
read with Sections 129 of the (6) of the Customs Act , 1962 says: "An officer after his retirement or
otherwise ceasing to be in service for any reason, if enrolled as an advocate, shall not practise in any
of the judicial, administrative courts/tribunals/authorities which are presided over by an officer
equivalent to or lower to the post which such officer has held." Similarly, Rule 7 and 7A of the Bar
Council of India Rules which was introduced with effect from 14.10.2007 clearly mandates that upon
his retirement or when otherwise ceases to be in service for any reason, will not be entitled to practise
in the administrative tribunal, other tribunals, authorities, courts, etc. over which he has presided and
which were headed only by an officer in a post equivalent to or lower than the post which he had held.
Rule 7-A makes it mandatory that a person who has been dismissed, retrenched, compulsorily retired,
removed or otherwise retired from Government service or service of High Court or the Supreme Court
on charges of corruption, dishonesty, unbecoming of an employee, etc. shall not even be enrolled as
an advocate on the rolls of a State Bar Council. Such restrictions are valid. Court said that imposition
of reasonable restriction is a concept into the enjoyment of fundamental right, as no right can exist
without a corresponding reasonable restriction placed on it. When the restrictions are placed upon
carrying out on a profession or to ensure that the intent, object or purpose achieved thereby would be
enhancing the purity of public life, such object would certainly be throttled if there arose a situation of
conflict between private interest and public duty. The principle of private interest giving way to public
interest is settled cannon not only of administrative jurisprudence, but of statutory interpretation as
well. Court further said: "As difficult as it is to anticipate the right to any freedom or liberty without any
reasonable restriction, equally difficult it is to imagine the existence of a right not coupled with duty.
Although Part III of the Constitution confers rights, still the duties and restrictions are inherent
thereunder. These rights are basic in nature and are recognised and guaranteed as natural rights
inherent in the status of a citizen of a free country but are not absolute in nature and uncontrolled in
operation. Each one of these rights is to be controlled, curtailed and regulated to a certain extent, by
law made by Parliament or State Legislature."57
 588

The right to practise is also subject to the power of the High Courts to lay down rules relating to the
admission of lawyers to represent suitors before them. 58It is equally subject to license being obtained
from the Court before which the privilege to practise is sought, on payment of the stamp duty imposed
by the Stamp Act .59 But in refusing to admit a person to practise before it, in exercise of the powers
conferred upon it, the High Court should observe the rules of natural justice. 60
Persons who are engaged in any other profession, such as medical profession, can be disqualified to
practise before a court of law even though he is qualified to enrol himself as an advocate. It was held
that if simultaneous practices of professionals who want to carry on more than one profession at a
time are permitted, the unflinching devotion expected by the legal profession will be adversely
affected. Such a prohibition is reasonable.61
A rule debarring persons above forty-five years from enrolling as advocates was held arbitrary and
unreasonable. The provision prescribes only a minimum age for enrolment and Bar Council cannot
prescribe maximum age for enrolment.62 A Company Secretary in whole time practice can be
prevented from enrolling as an advocate. It was held, both professions, i.e., Company Secretary and
practice in law, assume certain responsibilities for the competence of its members, need whole time
devotion and observance of certain standards, intellectual and ethical. It is, therefore, reasonable that
a person eligible to practise in law and as a Company Secretary restricts himself to one profession. 63 A
full time law officer of State Electricity Board cannot enrol himself as an advocate. 64
The statutory right of the advocate to practise in any court can be exercised only subject to the terms
and conditions envisaged under the enabling provision. An advocate engaged for pleading a case of
the party on instructions of an 'advocate on record' can do so only with the permission of the court.
Such legal requirement cannot in any way be said to restrict or curtail the fundamental right to
practise.65
An advocate who is found guilty of contempt of court is not entitled to appear in court, nor is he
entitled to act or plead in any court till he got himself purged of the contempt. Rules framed by the
High Court of Kerala providing for such prohibition is not violative of Art. 19(1)(g) or Art. 14. 66 Under
Sections 34 of the Advocates Act ,1961 High Court is empowered to prohibit a legal practitioner from
practicing before the High Court and Subordinate Courts for a period of time in the absence of any
specific rule framed under the said provision.67
A provision that a person who has obtained law degree as a private candidate, i.e., without attending
any college recognised by University and moot courts is not entitled to practise, is valid and
reasonable.68 A Full Bench of the Patna High Court examined the issue of fixing qualification for
eligibility to practise the legal profession in Parameswar Prasad v. UOI .69The Court said that the
validity of a law made by a competent Legislature which laid down professional qualification could not
be challenged on the ground that it infringed the right in Art. 19(1)(g), as laying down of professional
qualification was not circumscribed by reasonable restriction. It further said that there was nothing in
Art. 19(1)(g) to justify the conclusion that the High Court or Supreme Court could not lay down rules
for admission of advocates who alone could be permitted to appear before them. The court finally held
that no law graduate was entitled to practise in any High Court as of right and Art. 19(1)(g) could be
invoked only if he was enrolled under the Bar Councils Act and not merely having academic law
degree or qualification.
In Surajmal v. Bar Council of India ,70 however, the Supreme Court held that the question of
infringement under Art. 19(1)(g) would arise if a person is actually qualified under law and was
wrongfully refused enrolment by the authorities.
Article 19(6)(i) provides that nothing in Art. 19(1)(g) shall prevent the State from laying down any
technical or professional qualifications necessary for practising any profession or carrying on any
occupation, trade or business. In other words, a law providing for such qualification is not subject to
the test of reasonableness and is saved by sub-clause (i) of Art. 19(6). Accordingly, enactments like
Bar Councils Act, Advocates Act , Medical Councils Act, Indian Medical Degree Act, etc. which lay
down necessary professional and technical qualification for practising respective profession are not
subject to the test of reasonableness at the hands of the courts.
 589

Corresponding to the right of a lawyer to practise is the right of a litigant or accused to be represented
by a lawyer. It has been held that under our Constitution, there is no fundamental right to be
represented by a lawyer apart from the provisions of Art. 22(1). 71 It follows that the exclusion of lawyers
from any Court or judicial authority would not violate any fundamental right belonging to the parties
before that Court or authority, in cases where Art. 22(1) is not attracted. 72
Right of a medical practitioner to practise privately:
Reasonable restriction may be imposed on doctors prohibiting them from private practice while in
service. In Sukumar Mukherjee v. State of WB ,73 State of West Bengal had prohibited private practice
of medical practitioners who were also teaching in medical institution. This was provided under s.9 of
West Bengal State Health Service Act, 1990. The challenge against prohibition was rejected and the
court held that the prohibition against members of the West Bengal Medical Educational Service from
practising privately was not unconstitutional or repugnant to any statutory provision. The Court held
that it only regulated a class of persons i.e., the persons who were members of that service and
secondly, this was intended to maintain standards of medical education which was the very object of
enacting the Indian Medical Council Act .
Service under the Government
The law on this subject has to be gathered from a combined reading of several apparently conflicting
propositions--

24.  Like a Private person, the Government has a right to enter into a contract 74
with or employ any person of its choice.
26I.  In other words, though a person has the fundamental right to enter into any
profession or occupation, nobody has got any fundamental right to be appointed to the
Government service or to continue in such employment. 75
This view in Balakotiah's case (supra) was dissented by the Supreme Court in M.H.
Devendrappa v. Karnataka State Small Industries Development Corpn .,76wherein, it was
declared that legitimate act ion, discretly and properly taken by a Government servant
with a sense of responsibility and at the proper level to remedy any malfunction in the
organisation, is not it barred. A person who legitimately seeks to exercise his rights
under Art. 19 cannot now be told that he is free to exercise the rights, but the
consequences will be so serious and so damaging that he would not in effect, be able to
exercise the freedom. The earlier approach, that a Government servant is free to
exercise his freedom under Art. 19(1)(a) or (b), but at the cost of his service, clearly
amounted to the deprivation of freedom of speech. In view of the law declared in
Devendrappa's case, what the Court has to consider, is the reasonableness of the
service rules which curtail certain kinds of activities amongst Government servants in the
interest of efficiency and discipline in order that they may discharge their public duties as
a Government servant in a proper manner without undermining the prestige or efficiency
of the organisation.
However, in Delhi Transport Corporation v. DTC Mazdoor Congress ,77 it was held, "It
would further be held that right to public employment which includes right to "continued
employment" till the employee is superannuated as per rules or compulsorily retired or
duly terminated in accordance with procedure established by law is an integral part of
right to livelihood which in turn is an integral facet of right to life assured by Art. 21 of the
Constitution.... An employee in a public employment also must not be arbitrarily, unjustly
and unreasonably deprived of his livelihood which is ensured in "continued employment"
till it is terminated in accordance with just, fair and reasonable procedures. Otherwise,
any law or rule in violation thereof is void".
17II.  Though a person has no fundamental right to employment under the
Government, he does not forfeit any of the fundamental rights which are guaranteed to
all citizens, by Art. 19, by reasons of such employment. 78
IV. But all fundamental rights are subject to reasonable restrictions that may be
imposed by the State under any of the relevant grounds under Cls. (2) to (6) of Art. 19.
 590

Nevertheless, some restraints may validly be made on their right by the Service Rules in
order to maintain discipline amongst them and to ensure proper and effective discharge
of duties and obligations by them. Thus, Service Rules can be framed to maintain
efficiency and discipline among the ranks of Government servants. As the Supreme
Court observed: "...joining Government service has, implicit in it, if not explicitly so laid
down, the observance of certain code of conduct, necessary for the purpose of proper
discharge of function as a Government servant. But the court has also insisted that there
is need to have "a proper balancing of interests of an individual as a citizen and the right
of State to frame a code of conduct for its employees in the interest of proper functioning
of the State".79 Government employees have no right to go on strike, even though strike
is a form of expression of their grievances. Strike affects the society. When State has
framed rules prohibiting strike by its servants, it is a reasonable restriction, as there is no
constitutional right to strike.80
It follows that on the ground of 'public order', the Government may make such Rules
[Art. 309] to regulate the conditions of service of Government servants as are reasonably
necessary to ensure efficiency, discipline and the like, in public service. 81
In Kameshwar Prasad's case (supra), the Supreme Court held that although the
membership of a public service did not deprive a Government servant of his fundamental
rights, restrictions may be put on his right to freedom of speech and expression in
matters arising from his official position, as for example, restrictions against disclosure of
information obtained in the course of his official duties. The reasonableness of any
restrictions has to be judged by reference to the fundamental right which is restricted
and restrictions on Government servants in the interest of discipline are germane to the
right conferred by Art. 19(1)(g).
In Banarsi Das v. State of U.P .,82 it was held, Article 16 is not violated when
Government exercised its right to exclude persons who had betrayed a lack of
discipline." It was held that it is open to the appointing authority ... to lay down such pre-
requisite condition of appointment as would be conducive to maintenance of proper
discipline amongst Government servants. If persons already under Government
employment "on part time basis" had shown themselves not to be amenable to proper
discipline in Government offices, it was open to Government not to appoint such
persons.... because such persons could not be said to be as efficient as those who have
shown greater sense of responsibility to their employers.
Once a person voluntarily joins Government service, which is an "occupation", he is
bound by the terms and conditions of service and cannot question them as restriction on
freedom of occupation.83
5.  Conversely, such Rules themselves will be struck down by the court if they
violate any of the Fundamental Rights in Part III or constitute unreasonable restrictions
under Art. 19.84
2I.  Upon a combined reading of Art s. 14, 19 and 21,85 the Supreme Court has
of late evolved (apart from the common law condition of absence of mala fides) a
condition of fairness, non-arbitrariness86 and reasonableness which will curb the
Government's power to appoint or terminate the employment of, any person, in regard to
public service. Thus, the Court will interfere--
25. Where any Rule relating to appointment, confirmation, seniority or promotion
is arbitrary87 or unjust.88
25. If the Government terminates the employment of any person by, any
procedure which is unfair, e.g., terminating the employment of a permanent
servant by a mere notice, without any opportunity of hearing, 89 except in cases
governed by the Provisos to Art. 311(2).90

In DTC's case (supra), it was observed by one of the learned judges that, "Reasons must be there,
reasons must be perceptible, reasons must be relevant and the reasons must be of authority
independently, fairly and objectively arrived at". A provision in the service rule that the services of a
 591

permanent employee could be terminated by giving three months' notice or pay in lieu thereof, on
confirmation of the service, on either side" was held to be invalid and termination on the basis of such
a provision was held to be illegal.91
The services of a permanent Government employee can be terminated only after complying with the
principles of natural justice, even in cases where there is no provision for such compliance. 92
On the other hand--
There is no infringement of Art. 19(1)(g) by a Service Rule which prohibits Government servants from
engaging in any trade or business without the sanction of the Government. 93
In Maneka Gandhi v. UOI ,94 the passport of the petitioner was impounded under s. 10(3)(c) of the
Passport Act, 1967 thereby, preventing her from going abroad. The petitioner being a journalist sought
protection under Art. 19(1)(g) by pleading that the order contravened her right to carry on trade or
business. The majority in this case addressed itself to the "direct and inevitable" consequences of the
order that it reached the conclusion that on the date when the impugned order was made, there was
nothing to show that the petitioner was intending to go abroad for the purpose of exercising her right to
carry on her profession as a journalist. It was held that direct and inevitable consequences of
impugned order was to impede the exercise of her right to go abroad and not to interfere with her right
to carry on her profession. It was also held that the protection of the invoked freedom could not be
secured to the petitioner on the theory of peripheral or concomitant right. The Court relied on the
decision of All India Bank Employees' Assn. v. National Industrial Tribunal .95 The Court said that the
right to go abroad which was not a fundamental right could not be treated as part of the right to carry
on the trade or business or profession under Art. 19(1)(g). The impugned order could not be held as
violative or as offending Art. 19(1)(g) as its direct and inevitable impact was on the right to go abroad
and not on the right to carry on trade, business or profession. The theory of peripheral or concomitant
rights was unequivocally rejected.
'Profession, Occupation, Trade, Business'
The object of using so many analogous words is to make the guarantee of the freedom of choice of
occupation as comprehensive as possible, including, all the avenues through which a man earns his
living. This will be seen if each of these terms is analysed, according to their literal meanings, as
below.
'It is to be noted, however, that the guarantee in this sub-clause does not include any guarantee of
employment by the State. The present sub-clause simply ensures that the State will not stand in the
way of a citizen choosing his occupation except to safeguard the social interests mentioned in Cl. (6)
of Art. 19. What is guaranteed by Art. 19(1)(g) is the right of a citizen to pursue a calling of his own
choice96, subject to such reasonable restrictions as may be imposed by the State under Cl. (6) of Art.
19.
It was held in Fertilizer Corpn. case,97 that the right to pursue a calling or to carry on an occupation, is
not the same thing as the right to work in a particular post under a contract of employment. The
closure of an establishment in which a workman is for the time being employed, does not by itself
infringe his fundamental right to carry on an occupation which is guaranteed under Art. 19(1)(g). Article
19(1)(g) of the Indian Constitution confers a broad and general right which is available to all persons
to do work of any particular kind and of their choice. It does not confer the right to hold a particular job
or to occupy a particular post of one's choice.
'Profession'
A profession is an occupation carried, on by a person, by virtue of his personal qualifications, 98 training
or skill. It may assume the character of a business if an element of profit arising from the investment of
capital is introduced. Thus, an author carries on a profession, but a publisher carries on a business,
and an author who is also a publisher, combines both profession and business. 99
 592

The word 'profession' is of a still wider scope than a 'business'. What may not amount to a 'business',
may amount to 'profession' instead; and what may not amount to 'profession', may amount to
'vocation' and what may not amount to 'vocation' may amount to an 'occupation'. 100
'Occupation'
The Dictionary meaning of 'occupation' is employment, business, profession or calling'. The
academical pursuit of a student cannot be said to be an occupation, 1 though a teacher is engaged in
an occupation. It is a 'trade or calling' by which a person 'ordinarily seeks to get his livelihood'. In a
wider sense, thus,2 it includes any vocation which engages one's time,--profession, trade or business. 3
The expression "occupation" has a wide meaning, such as, any regular work, profession, job, principal
activity, employment, business or calling in which an individual is engaged. 4
ESTABLISHMENT AND MANAGEMENT OFEDUCATIONAL INSTITUTIONS
The right to establish and administer educational institutions is guaranteed under the Constitution to
all citizens under Arts. 19(1)(g) and 26 and to minorities specifically under Art. 30. Though such a right
is guaranteed, the same is subject to provisions of Arts. 19(6) and 26(a). For this purpose, "education"
means and includes education at all levels from the primary school level to the post-graduate level. It
also includes professional education and the expression "educational institution" means institution
imparting education as stated above.5It was also held in that case, that an establishment and running
of an educational institution where a large number of persons are employed as teachers or
administrative staff and an act ivity is carried that results in the imparting of knowledge to the students,
must necessarily an "occupation", even though there is an element of profit generation. "Occupation"
would be an activity of a person undertaken as a means of livelihood or mission in life. 6
The word "education" under Schedule VII List III Entry 25 is of wide import. It would include in its fold,
the taught, the teacher, the textbook and also training, as practical training is required to be imparted
to students pursuing the course of postgraduate medical education. Curriculum is also covered by the
term "education".7 Education is the systematic instruction, schooling or training given to the young, in
preparation for the work of life. It also connotes the whole course of scholastic instruction which a
person has received. What education connotes is the process of training and development of
knowledge, skill, mind and character of students by formal schooling. 8 Education today, reminds
liberation - a tool for the betterment of our civil institution, the protection of our civil liberties and the
path to an informed and questioning citizenry. Then, as now, we recognise education's "transcendental
importance" in the lives of individuals and in the very survival of our Constitution and Republic. The
Constitution provides meaning to the word 'education' beyond dictionary meaning". 9
Education is generally a charitable object and imparting education is a kind of service to the
community which can be read within the wide meaning accorded to the expression "occupation" in Art.
19(1)(g) and is subject to reasonable restriction under Art. 19(6). Per QUADRI, J., VAIRAVA AND
BHAN, JJ., concurring.
Education is a recognised head of "charity" as held in T.M.A. Pai Foundation case. However, if the
institution goes beyond charity into "commercialisation", it will not get the protection of Art. 19(1)(g). 10
Even though there are deficiencies and failure to improve the general academic atmosphere and the
same is expressed by students and teachers, no administrator can be appointed to take over the
management for an indefinite period in view of Art. 19(1)(g) which guarantees autonomy in regard to
administration.11
Imparting education cannot be treated as a trade or business. Trade or business normally connotes an
act ivity carried on with profit motive. Education has never been nor can it be allowed to become a
commercial activity. A law, existing or future ensuring against it would be a valid measure within the
meaning of Art. 19(6). Education has been treated as a religious duty, a charitable act ivity. Making it
into commerce is opposed to ethos, tradition and sensibilities of the nation... Imparting education also,
cannot be called a profession within the meaning of Art. 19(1)(g). Establishing an educational
institution cannot be treated as 'practising any profession'. Teaching may be a profession, but
establishing an institution, employing teaching and non-teaching staff, procurring necessary
 593

infrastructure for running an educational institution is not practising a profession. 12 An educational

institution also cannot be treated as an "establishment" nor is it an industry. 13
In regard to the right of citizen who has established an educational institution (non-minority character),
they do not stand on the same footing as a minority institution. Even though both minority and non-
minority categories can claim guarantee under Art. 19(1)(g), minority institution has a preferential right
to admit students of their minority group and the right given to minority cannot be taken away by taking
over the management in view of Art. 30. Article 30 gives the minorities certain special rights in matters
of establishment and managing educational institutions. In case of nationalisation of education, a
minority institution cannot be taken away, whereas a non-minority institution will be bound by any such
step taken by the Government.14
The rights of un-aided (both minority and non-minority) educational institutions include the right to fill
up seats by their own candidates, and the State cannot, in enforcement of its reservation policy or
otherwise claim any right to direct the institution to admit students of its choice. Any such compulsion
would amount to nationalisation of seats which is unconstitutional. Un-aided institution can admit
candidates of their choice, subject to the condition that such admission is based on merits. It must be
fair, transparent and non-exploitation.
The Right of Children to Free and Compulsory Education Act , 2009 entitles the right of every child of
the age of 6 to 14 years to free and compulsory education in a neighbourhood school, till the
completion of elementary education (i.e., classes I to VIII). The Act provides for 25% reservation for all
children who are financially poor. The validity of the Act was challenged on the ground that it violates
Art. 19(1)(g). The court by a majority held that the Act is valid in so far as: (1) schools established by
the Government, or local authority; (2) an aided school including aided minority schools receiving aid
or grant to meet the whole or part of its expenses from appropriate Government or local authority; (3)
a school belonging to special category; (4) an unaided non-minority school not receiving any kind of
aid or grant to meet the expenses from the appropriate Government or local authority. In so far as
unaided minority school was concerned, the Act was held invalid, but applying the doctrine of
severability, the Act was held valid, but will not apply to minority unaided school. 15The Court also
upheld the provision of 25% reservation as applicable to minority aided institution. Court said that the
purpose of enacting the Act is to prevent educational institutions from charging capitation fees
resulting in the creation of a financial barrier which prevents a child from accessing or exercising its
right to education which is provided in Art. 21-A. Restriction imposed in compelling 25% reservation in
admission of financially poor children was held reasonable.
Though the un-aided institutions have a right guaranteed under Art. 19(1)(g) to admit students of their
choice, such admission should be based only on merit. On the question of selection by merit to
professional colleges, there is no difference between minority and non-minority institution, since merit
is of national interest. For the purpose of assessing merit, regulations could be framed and a common
entrance test also could be conducted for which a supervisory authority also could be appointed,
which is not interference to the right guaranteed both to minorities and non-minorities. While admitting
students, a non-minority institution has to follow the system of inter se merit; in regard to minority
institutions, they have to follow a system of admission by which inter se merit as among the minority
candidates should be the basis.
A private unaided non-minority institution has the right to establish and administer an educational
institution under Art. 19(1) of the Constitution. This right includes the right to admit students into the
institution. However, students seeking admission to a professional institution are required to be treated
fairly and preference cannot be shown to less meritorious but more influential student and greater
emphasis must be laid on merit of the student seeking admission. Non-minority unaided institution like
the minority unaided institutions have also the unfettered fundamental right to choose the students to
be allowed admission and the procedure therefore, but the admission procedure so chosen by the
institution must be fair, transparent and non-exploitative. Merit is to be determined for admission to
professional colleges, either by the marks that the student may obtain at the qualifying examination or
by a common entrance test. All institutions imparting the same or similar professional education can
join together for holding common entrance test satisfying the triple test of admission procedure being
fair, transparent and non-exploitative.16 It was also held therein, that so long as there is no restriction
 594

that unaided private college cannot be compelled to admit candidates from the merit list prepared
consequent to common entrance test conducted by Government, so long as there is no agreement in
that regard, private colleges are free to admit students from privately held competitive examination so
long as it satisfies mandatory norms being fair, transparent and non-exploitative. 17
The right of minority to administer educational institution is not infringed by making Tamil as
compulsory subject in schools syllabus. It does not restrict minority students from learning their mother
tongue as well.18
A direction or a provision for centralised counselling by following a single window system of admission
is also not an interference of the guaranteed right, since, such a system is only a regulation to assure
that merit is given predominance over the character of the institution.
The right guaranteed to establish and manage the educational institution, does not include the right to
realise 'capitation fee'. The institutions have no right to admit students on payment of capitation fee
and the payment of fee also could be regulated by law. Profiteering is also not permissible and the
occupation cannot be turned into commercialisation. Such rights are outside Arts. 19(1)(g) and 30 19 -
explaining the decision in T.M.A. Pai Foundation v. State of Karnataka ,20 and Islamic Academy of
Education v. State of Karnataka .21
Though a citizen has a fundamental right to establish and administer educational institution, they have
no fundamental right to get recognition or affiliation or to get grant-in-aid from the State. 22 Similarly the
Government has the power to prescribe the standard and textbooks based on guidelines and such
power is a regulatory power and reasonable.23
The right to administer, does not amount to maladministration and the right is not free from
regulations. Permissible regulations can always be framed and where there is maladministration or
even where a linguistic or religious minority school is being run against the public or national interest,
appropriate steps can be taken by the authorities including closure, but in accordance with law. The
right of minority to establish and manage educational institutions under Art. 30, is subject to Art. 19(6)
read with Art. 19(1)(g). Thus, (1) reasonable restrictions in public and national interest and (2)
Government regulation to achieve excellence in educational standards and to prevent
maladministration are permissible. At the same time, the power to regulate is not unlimited so as to
destroy the right conferred.24 The Court also said that there is a fine distinction between a restriction on
the right of administration and a regulation prescribing the manner of administration. What should be
prevented is maladministration. It is not an absolute right of the minority institution rather, it is a right
where certain conditions could be applied, and however, such condition should not, in any way,
destroy or completely diminish the status and constitutional direction available to that minority. The
State is empowered to frame regulations, with an object to ensure better organisation and
development of school education and the matters incidental thereto. Such power of State to frame
regulations must operate within its limitation, while ensuring that it does not, in any way, dilute or
impair the basic character of linguistic minority. Its right to establish and administer has to be
construed liberally to bring it in alignment with constitutional protection available to such communities.
The provision for reservation as provided under Art. 15(5), excludes minority educational institutions
from the power of State to make any provision by law for the advancement of any socially and
educationally backward classes of citizens or for SC/ST in relation to their admission to educational
institution including private educational institution, whether aided or unaided. In appointment of
teachers in minority educational institution, Government control is limited to defining only the eligibility
of such teachers and the institutions have full control in appointing teachers and of their internal
management. Merely because the Government is providing grant-in-aid, it cannot be construed as to
destroy, impair or even dilute the very character of the minority character. The Court said that
constitutional intent is to bring minorities on a par or equality with majority as well as give them right to
establish, administer and run minority educational institution. Court will have to strike a balance
between different facets relating to grant-in-aid, right to education being a fundamental right,
protection available to religion or linguistic minorities under the Constitution and primary object of
improving and providing efficiency and excellence in school education. 25
 595

In view of the guaranteed right, the un-aided institutions have a greater autonomy in management
including fixation of fees. But such fixation should not be able to commercialise education. While fixing
the fees, the institution can determine the same so as to generate a reasonable surplus for
development of education and expansion of the institution itself. What is prohibited is
commercialisation of education and diversion of surplus or profits for any other purpose or to use the
same for personal gain or for other business or enterprise. Regulations can be framed to strike a
balance between autonomy of the institution and measures to be taken to prevent commercialisation
of education. Where a provision is made requiring the institution to file a statement indicating the
estimated income of the institution realised from fees, expenses to be incurred towards salaries and
allowances payable to employees, etc. cannot make the provision illegal since it is intended only to
bring in transparency, accountability, expenditure management and utilisation of savings for capital
expenditure/investment without infringement of the autonomy of the institute in the matter of fee
fixation. Such a provision is also intended to prevent commercialisation of education. While fixing fees,
economic factors have a role to play and can also be permitted to make reasonable profits after
providing for investment and expenditure (development charge subject to a maximum of 15% of the
total amount of tuition fee). The infrastructure and facilities available, investment made, salaries paid
to teachers and staff, future plans for expansion, and/or betterment of institution are all matters that
could be taken into consideration for fixations of fees. But surplus profit shall be made use of only for
that institution.26
Both, minority and non-minority professional colleges which are unaided are required to realise the
fees as fixed by the Fee Fixation Committee.27
Merely because the State grants essentiality certificate and has also a duty to enforce the Directive
Principles of State Policy, it cannot impose its own duties on a private unaided institution. The principle
of reservation is only an enabling provision and the same cannot be imposed on a private institution
without a valid legislation.28
Merely because the management cannot terminate the services of a staff (whether teaching or non-
teaching) since, some protection is provided for their services and appeal, etc. is also provided for, to
higher authorities, and does not amount to an unreasonable restriction on the right of the
management.29
For further Commentary - See Arts. 26 and 30.
'Trade'
In its broadest significance, 'trade' includes any bargain or sale,--any occupation or business carried
on for subsistence or profit. The usual meaning of the word has reference to the business of selling or
exchanging some tangible substance or commodity. 30
The full bench of the Madras High Court held that trade cannot be confined to movement of goods
only but, may also extend to transaction linked with merchandise or the flow of goods or the promotion
of buying and selling, or advances, borrowings, discounting bills and mercantile documents. Business
undertaken by financial establishments and accepting deposits on a promise while wooing to pay a
higher rate of interest and then circulating the money to third parties at a higher rate of interest
amounts to "trade in finance".31
According to Halsbury, the word 'trade' is capable of two meanings: (a) Its primary meaning is "the
exchange of goods for goods or goods for money". (b) Its secondary meaning is "any business carried
on with a view to profit whether manual or mercantile, as distinguished from the liberal arts or learned
professions and from agriculture".32 Plying motor vehicles33 or rickshaws34 on public pathways have
been held to be trade and commerce. A doctor discharging his professional duties by treating patients
does not amount to trade.35
In some cases it has been held that it is not essential to a 'trade' that the persons carrying it on should
make, or desire to make, a profit.36 Thus, the Council of Law Reporting was held to be carrying on a
'trade'.37
 596

A professional activity must be an act ivity carried on by an individual by his personal skill and
intelligence. There is a fundamental distinction between a professional activity and an act ivity of a
commercial character. The word "commerce" is a derivative from the word "commercial". The word
"commercial" originates from the word "commerce". The expression "commerce or commercial"
necessarily has a concept of a trading activity. Trading act ivity may involve any kind of activity, be it a
transport or supply of goods. In 'legal profession', there is no such kind of buying or selling, nor any
trading of any kind whatsoever. Legal profession cannot be compared with a trade or business. 38
Article 19 (1)(g) employs four expressions - (1) Profession, occupation, trade or business. Their fields
may overlap, but each one does have a contact of its own. Education has so far not been regarded as
a trade or business, where profit is the motive. Even if there is any doubt about whether education is a
profession, or not, it does appear that education will fall within the meaning of the expression
"occupation". The establishment and running of one educational institution where large number of
persons are employed as teachers and administrative staff, and an act ivity is carried on that results in
the imparting of knowledge to the students, must necessarily be regarded as an "occupation", even if
there is no element of profit generation.39 JUSTICE QUADRI in the same case, who agreed with the
majority, further said, "Education is essentially a charitable object and imparting education is a kind of
service to the community which can be read within the wide meaning accorded to the expression
"occupation" in Art. 19(1)(g) and is subject to reasonable restriction imposable under Art. 19(6)".
Education whether for charity or for profit is an occupation and cannot be equated to trade or
business.40
'Business'
This word, used generally, means some adventure which has the object of earning profit or gain. 41 It is
not commonly used as descriptive of charitable, religious, educational or social agencies. 42 An
undertaking is a business.43
In Halsbury's Laws of England,44 it is stated as follows: "The word 'business' extends the covenant to
all cases where work, involving the recourse of numerous persons to the premises, is done for
payment or even without payment where the result is in effect the same as if a charge was made. The
making of profit is not essential to constitute a business nor on the other hand does payment
necessarily constitute one."
"Anything which occupies the time, attention and labour of a man, for the purpose of profits, is a
business."45
'Business' is thus a term wider than 'trade' and would include 'anything which is an occupation as
distinguished from a pleasure.46
Though, however, the word 'business' is ordinarily more comprehensive than the word 'trade', 47 in the
present clause it is used as synonymous with the other, 48 as meaning any substantial and systematic
or organised course of purpose.49
Ordinarily speaking, "business" is synonymous with trade. It is also defined as 'anything which
occupies time and attention and labour of a man for the purpose of profit.' 50 An activity incidental or
ancillary to the main business will also come within the definition of a 'business'. 51 The Supreme Court
did not agree with the decision in Dena Bank's case (supra) where it held that the expressions
'business' and 'trade' are synonymous. Business is a wider term than 'trade' and means almost
anything which is in the occupation as distinguished from a 'pleasure'. 52 The expression 'business' is
comprehensive enough to take in even formal contracts. 53 As the consideration of profit motive cannot
be regarded as an essential constituent of the term 'business', we have to consider whether the other
ingredients of the term 'business' viz., volume, frequency, continuity and regularity of transaction of
sale and purchase are satisfied.54
In short, there is some overlapping as to the meaning of the expressions 'profession', 'trade' and
'business'; and the precise meaning to be imputed to any of these expressions will depend on the
context of the statute in which it has been used.55 Broadly speaking, 'profession' is a generic term,
which becomes a 'trade' when it consists of buying and selling commodities. 56 Business is a much
wider term and at least covers a continuous57 occupation involving liability to others.58
 597

In Senairam Doongarmall v. Commissioner of Income Tax ,59 it was held, "An act ivity with the object of
earning profit".
An activity carried on continuously and systematically by a person by the application of his labour or
skill with a view to earning income.60
"Business, Trade, Profession, Art"
These words are synonymous in the sense of a calling for the purpose of a livelihood; business in
general, trade and profession are particular; all trade is business, but all business is not trade. Buying
and selling of merchandise is inseparable from trade, but the exercise of one's knowledge and
experience, for the purpose of gain, constitutes a business; when learning or particular skill is
required, it is a profession and when there is a peculiar exercise of 'art', it is "art". Every shopkeeper
and retail dealer carries on a trade, brokers, manufacturers, bankers and others carry on business;
clergymen, medical or military men follow profession; musicians and painters follow an art. 61
The word 'business' would thus include forward contracts'. 62
On the other hand--
Even though the words 'occupation', 'trade' and 'business' have been used in this sub-clause without
any qualification, our Supreme Court has held63 that these words will not extend to all activities which
may be carried on with a view to earning profit, but would exclude act ivities which are not considered
to be legitimate commercial activities by overwhelming social opinion, e.g., gambling, trafficking in
women and the like. The problems arising out of this view will be discussed separately.
CLAUSE (6): RESTRICTIONS ON THE FREEDOMOF TRADE, PROFESSION, ETC.
OTHER CONSTITUTIONS
U.S.A.
(A) U.S.A.--As has been already stated, the freedom of business or profession is not absolute but
subject to regulation by the State in the exercise of its police power.
"The constitution does not guarantee the unrestricted privilege to conduct it as one pleases. Certain
kinds of business may be prohibited: and the right to conduct a business or to pursue a calling may be
conditioned. Regulation of a business to prevent waste of the State's resources may be justified. And
statutes prescribing the terms upon which those conducting certainbusinesses may contract, or
imposing terms if they do enter into agreements, are within the State's competency." 64
In that case, New York created a Milk Control Board empowered to set the retail price of milk. New
York sought to stabilise milk price to preserve an adequate milk supply in the midst of ruinous
economic depression that threatened to drive many dairy farmers into extinction. The Board
established a price for retail sale of milk. Nebbia, a retail grocer was convicted for selling milk for less
than the price fixed by Board. The same was challenged, on the ground that the State could not
constitutionally fix milk prices. The Court upheld the restriction, stating that the same was not
unreasonable, arbitrary or capricious and the means selected had a real and substantial connection to
the object sought to be attained. A State, said the Court, is free to adopt whatever economic policy by
legislation adapted to its purpose. Court further said: "So far as the requirement of due process is
concerned, and in the absence of any other constitutional restriction, a State is free to adopt whatever
economic policy may reasonably be deemed to promote public welfare and to enforce that policy by
legislation adapted to its purpose. The courts are without authority to declare such policy or when it is
declared by the legislation to override it".
"The police of a State, in a comprehensive sense, embraces its system of internal regulation, by which
it is sought not only to preserve the public order and to prevent offences against the State, but also to
establish the intercourse of citizen with citizen those rules of good manners and good neighbourhood
which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment
of his own, so far as is reasonably consistent with a like enjoyment of right by others. The definition of
police-power as stated by T.M. Cooley in A Treatise on the Constitutional Limitation.65
 598

The restrictions imposed, however, must be reasonable, according to the requirement of 'Due
Process.'66
Thus, the State cannot impose arbitrary or discriminatory regulations, 67 or regulations having no
reasonable relation to some proper legislative purpose which the Legislature is competent to
undertake.68
However, on several occasions, the court has invalidated laws restricting entry into particular lines of
business. In New State Ice Co. v. Leibmann ,69 the court invalidated a law prohibiting any persons to
manufacture ice without first obtaining a certificate of convenience and necessity Court explained that
as in the context of price regulation, the critical issue whether the business is charged with a public
use for a regulation which has the effect of denying the common right to engage in a lawful business,
cannot be upheld.70
The grounds upon which the State is entitled to impose reasonable restrictions are, inter alia--

78a)  To impose regulations regarding the manufacture of foods and drugs, in the
interests of health, e.g., requiring that 'ice cream' shall contain a particular quantity of
butter fat;71 requiring ingredients to be stated on each package, 72 penalising adulteration
of foods and drugs;73 prohibiting the sale of oleomargarine as a substitute for butter, 74
excluding infected cattle,75 decayed fruit.76
81b)  To impose regulations for the protection from fraud of other traders, e.g.,
punishing the forging of trade marks, applying false trade descriptions; 77 or for the
protection of the public, e.g., penalising falsification of accounts, publishing false
statements or injurious advertisements; prohibiting the sale of particular articles except
in packages of prescribed sizes or under proper labels78 or in containers of a particular
specification,79 prescribing the character of permissible advertisement, 80 requiring
manufacturers of mixed fertilisers to disclose on the container the materials used in the
mixture, with their proportions.81
52c)  To provide for a reasonable time for inspection and test before completing
the sale of a complicated machinery.82
20d)  To prohibit the conduct of certain businesses within specified areas, e.g., the
maintenance of a dairy or stable within the limits of a city. 83
12e)  To restrict unfair competition, e.g., by prohibiting price discriminations and
other unfair trade practices84, such as blackmarketing,85 by regulating prices.86 Even
charges for personal service, e.g., by attorneys, may be controlled.87
8f)  To prevent the monopolistic control of a business by a trader. 88
6g)  To restrict the right to conduct business of certain kinds to specified classes
of persons or associations, in the interests of efficiency. Thus, the business of banking or
insurance may be limited to corporation.89 Similarly, monopolies may be granted in
respect of public utility services.90
4h)  To prohibit combinations in restraint of freedom of trade.91e.g., agreements
not to sell or to buy goods from particular persons, or to dictate terms under which
transportation would be supplied.92
55i)  To provide for the marketing of goods produced in order to enable producers
to get a fair price for their commodities.93
1j)  To undertake what is called 'labour legislation', e.g., to regulate the hours of
work, prescribing holidays, sick leave and the like, of the employees; 94 fixing minimum
wages; providing for workmen's compensation;95 or what is called 'social security
legislation"96 providing for unemployment, old age pension and the like; or providing for
settlement of industrial disputes;97 regulating the hours during which women and children
may be employed in factories.98 In Muller v. Oregon ,99 the court upheld a statute
prohibiting the employment of women in laundries for more than ten hours per day. The
court said that a woman's physical structure placed her at a disadvantage in the struggle
for subsistence and the legislation to protect women was thus, necessary to secure a
real equality right.100 In West Coast Hotel Co.'s case (supra), the court specifically
 599

overruled an earlier decision in Adkins v. Children's Hospital ,101 which invalidated a law
establishing minimum wages for women. The court further said: "The violation alleged by
those attacking minimum wages regulation for women is deprivation of freedom of
contract. What is this freedom of contract? The Constitution does not speak of freedom
of contract. It speaks of liberty and prohibits the deprivation of liberty without due
process of law. Regulation which is reasonable in relation to its subject and is adopted in
the interests of the community is due process."
Amongst the federal statutes regulating business (relating to inter-state trade or commerce) may be
mentioned--

79a)  The Sherman Act, 1890 (known as the anti-Trust law), which forbids
monopolies, combinations and agreements in restraint of inter-State of foreign trade or
commerce.
82b)  The Clayton Act, 1914, which specifically prohibits certain objectionable
trade practices, such as price discrimination, acquisition of the assets of rival companies
with a very to lessen competition or to create a monopoly.

1 MacDermott, Protection from Power, 1457, pp. 155 ff; Hood Phillips, 1987, p. 530; Wade & Bradley, 1985, pp. 497 ff.

2 Munn v. Illinois, (1876) 94 US 113; Allgeyer v. State of Lousiana, (1897) 165 US 578 (589).

3 Nebbia v. New York, (1934) 291 US 502.

4 Green v. McEiroy, (1958) 360 US 474 (492).

5 Schware v. Board of Bar Examiners, (1957) 353 US 232.

6 Allgeyer v. Lousiana, (1897) 165 US 578.

7 Allgeyer v. Lousiana, (1897) 165 US 578.

8 Adler v. Board of Education, (1952) 342 US 482 (492).

9 Perkins v. Lukens, (1940) 31p US 113 (127-8).

10 Perkins v. Lukens, (1940) 31p US 113 (127-8).

11 SCW (3rd), p. 331.

12 SCW (3rd), p. 331.

13 SCW (3rd), pp. 43.

14 SCW (3rd), pp. 43.

15 See Justice Fazal Karim of the Pakistan Supreme Court, Judicial Review of Public Action, 2006 Edn.,Vol. I, at
pp.719-720.

16 Fatehchand Himmatlal v. State of Maharashtra, AIR 1977 SC 1823 : (1977) 1 SCC 491.

17 11th Edn., Vol. 38 at p.8.

18 Secretary, Madras Gymkhana Club Employees Union v. Management of Gymkhana, AIR 1968 SC 554 : (1968) 1
SCR 742.

19 Mulshanker v. Govt. of Bombay, AIR 1951 Bom 233.

20 Sodan Singh v. New Delhi Municipal Corporation, AIR 1989 SC 1988 : (1989) 4 SCC 155.

21 Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574.

22 Safdarjung Hospital v. K.S. Sethi, AIR 1970 SC 1407: (1970) 1 SCC 735 : (1971) 1 SCR 177.
 600

23 Krishna Kumar Narula v. State of J & K, AIR 1967 SC 1368 : (1967) 3 SCR 50.

24 Safdarjung Hospital v. K.S. Sethi, AIR 1970 SC 1407: (1970) 1 SCC 735 : (1971) 1 SCR 177 (supra).

25 Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax, AIR 1955 SC 176 : (1955) 1 SCR 952.

26 P.N. Inamdar v. State of Maharashtra, AIR 2005 SC 3226 : (2005) 6 SCC 537; See alsoUnnikrishnan v. State of
A.P., AIR 1993 SC 2178 : (1993) 1 SCC 645; Ruth Soren v. Managing Committee ,, AIR 2001 SC 380 : (2001) 2 SCC
115; T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.

27 Commissioner of Expenditure Tax v. P.V.G. Raju, Rajah of Viziahnagaram, AIR 1976 SC 140 : (1976) 1 SCC 241.

28 AIR 1977 SC 1823 : (1977) 1 SCC 491 (supra).

29 State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699 : (1957) SCR 874; RMDC v. UOI, AIR 1957 SC 628
: (1957) SCR 930; but seeKrishna Chandra v. State of MP, AIR 1965 SC 307 : (1964) 1 SCR 765.

30 Srinivasa Enterprises v. UOI, AIR 1981 SC 504 : (1980) 4 SCC 507.

31 B.R. Enterprises v. State of UP, AIR 1999 SC 468 : (1999) 9 SCC 700.

32 2006 Edn,, Vol. I, at pp. 719-21.

33 Kowloon Stock Exchange v. IR Commissioner, (1985) 1 All ER 205, 210 PC.

34 Gibbons v. Ogden, 22 US 9 Wheat 1 : 6 L Ed.23.

35 Gibbons v. Ogden, 6 L ED 23, 78.

36 Ms. S. Bhagavathy v. State of Tamil Nadu, (2007) 2 MLJ 526(FB) : AIR 2007 (NOC) 1147(Mad) .

37 Kowloom Stock Exchange v. IR Commissioner, (1985) 1 All ER 205(PC) .

38 Saghir Ahmed v. State of U.P., (1955) 1 SCR 707 (707; 718-9) : AIR 1954 SC 728; Ramana v. IAA.I., AIR 1979 SC
1628 (paras. 10-12)--3 Judges.

39 Saghir Ahmed v. State of U.P., (1955) 1 SCR 707 (707; 718-9) : AIR 1954 SC 728; Ramana v. I.A.A.I., AIR 1979 SC
1628 (paras. 10-12)--3 Judges.

40 Saghir Ahmed v. State of U.P., (1955) 1 SCR 707 (707; 718-9) : AIR 1954 SC 728; Ramana v. I.A.A.I., AIR 1979 SC
1628 (paras. 10-12)--3 Judges.

41 Saghir Ahmed v. State of U.P., (1955) 1 SCR 707 (707; 718-9) : AIR 1954 SC 728; Ramana v. I.A.A.I., AIR 1979 SC
1628 (paras. 10-12)--3 Judges.

42 Rashid Ahmed v. Municipal Board, (1950) SCR 566 : AIR 1950 SC 163.

43 State of Rajasthan v. Vyas, (1971) UJSC 222 (223).

44 Saghir Ahmed v. State of U.P., (1955) 1 SCR 707 (707; 718-9) : AIR 1954 SC 728; Ramana v. I.A.A.I., AIR 1979 SC
1628 (paras. 10-12)--3 Judges.

45 Ganapati v. State of Ajmer, (1955) 1 SCR 1065 : AIR 1955 SC 188.

46 B.W.S.B.B. v. Rajappa, AIR 1978 SC 548 : (1978) 2 SCC 213 : AIR 1978 SC 969 (para. 121).

47 TMA Pai Foundation v. State of Karnataka, AIR 2003 SC 355 : (2002) 8 SCC 481.

48 See alsoSociety for Unaided Private Schools of Rajasthan v. UOI, AIR 2012 SC 3445 : (2012) 6 SCC 1.

49 Sodan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988 : (1989) 4 SCC 155; see alsoTMA Pai
Foundation v. State of Karnataka, AIR 2003 SC 355 : (2002) 8 SCC 481.

50 Digamber v. Nanda, AIR 1957 Ori 281; Devata Prasad v. Chief Justice, AIR 1962 SC 201 (203) : (1962) 2 SCR 305.

51 Devata Prasad v. Chief Justice, AIR 1962 SC 201 (203) : (1962) 2 SCR 305. See alsoAyurvedic Enlisted Doctors'
Assn. v. State of Maharashtra, (2009) 16 SCC 170 : (2009) 3 JT 351; N.K. Bajpai v. UOI, AIR 2012 SC 1310 : (2012) 4
SCC 653; Brij Mohan Lal v. UOI, (2012) 6 SCC 502 : (2012) 4 SCALE 450.
 601

52 Devata Prasad v. Chief Justice, AIR 1962 SC 201 (203) : (1962) 2 SCR 305. See alsoAyurvedic Enlisted Doctors'
Assn. v. State of Maharashtra, (2009) 16 SCC 170 : (2009) 3 JT 351; N.K. Bajpai v. UOI, AIR 2012 SC 1310 : (2012) 4
SCC 653; Brij Mohan Lal v. UOI, (2012) 6 SCC 502 : (2012) 4 SCALE 450.

53 Jagjit v. State of Hyderabad, AIR 1954 Hyd 28.

54 Devata Prasad v. Chief Justice, AIR 1962 SC 201 (203) : (1962) 2 SCR 305. See alsoAyurvedic Enlisted Doctors'
Assn. v. State of Maharashtra, (2009) 16 SCC 170 : (2009) 3 JT 351; N.K. Bajpai v. UOI, AIR 2012 SC 1310 : (2012) 4
SCC 653; Brij Mohan Lal v. UOI, (2012) 6 SCC 502 : (2012) 4 SCALE 450.

55 Sakhawant v. State of Orissa, AIR 1955 SC 166 : (1955) 1 SCR 1004.

56 Sunil Kumar Rana v. State of Haryana, (2003) 2 SCC 628affirmed inZile Singh v. State of Haryana, (2004) 8 SCC
1. See also B.K. Parthasarathy v. Govt. of A.P., AIR 2000 AP 196.

57 Javed v. State of Haryana, AIR 2003 SC 3057 : (2003) 8 SCC 369.

58 Pannalal v. Union of India, AIR 1957 SC 397 (409) : 1957 SCR 233.

59 A.I. Works v. Chief Controller, AIR 1974 SC 1539 (1542) : (1974) 2 SCC 348; Fernandez & Co., J. v. Dy. Chief
Controller, AIR 1975 SC 1206 : (1975) 1 SCC 716 (para. 29).

60 Mukthiar Chand (Dr.) v. State of Punjab, (1998) 7 SCC 579 : AIR 1999 SC 468. See alsoHaniraj L.Chulani (Dr.) v.
Bar Council of Maharashtra, (1996) 3 SCC 342; Udai SinghDugar v. UOI, AIR 2007 SC 2599 : (2007) 10 SCC 306.

61 Ananda v. State of Orissa, (1955) 2 SCR 919 : AIR 1956 SC 17.

62 Shiviji v. Union of India, AIR 1959 Punj 510 (512).

63 Mahadeo v. State of Bombay, (1959) 2 S.C.A 154 (164) : AIR 1959 SC 735 : 1959 Supp (2) SCR 339.

64 Mediator Co. v. State of W.B., AIR 1958 Cal 634 : 62 Cal. W.N. 682.

65 Ram Jawaya v. State of Punjab, (1955) 2 SCR 225 (240) : AIR 1955 SC 549.

66 Mediator Co. v. State of W.B., AIR 1958 Cal 634 : 62 Cal. W.N. 682.

67 Cooverjee v. Excise Commr., (1954) SCR 873 : AIR 1954 SC 220; State of Bombay v. Chamarbaughwala, (1957)
SCR 874 : AIR 1957 SC 699; Chamarbaughwala v. Union of India, (1957) SCR 930 : AIR 1957 SC 628.

68 Nagendra v. Commr., AIR 1958 SC 398 : 1958 SCR 1240; Har Shankar v. Dy. Excise Commr., AIR 1975 SC 1121 :
(1975) 1 SCC 737 (para. 5); Nashiwar v. State of M.P., AIR 1975 SC 360 : (1975) 1 SCC 29; Kaushal v. Union of India,
AIR 1978 SC 1457 : (1978) 3 SCC 558. See alsoLakhanlal v. State of Orissa, AIR 1977 SC 722 : (1976) 4 SCC 660;
Satpal & Co. Ltd. v. Lt. Governor of Delhi, AIR 1976 SC 1550 : (1979) 4 SCC 232; Cooverjee B. Bharucha v. Excise
Commissioner, AIR 1954 SC 220 : (1954) SCR 873; State of Orissa v. Harinarayan Jaiswal, AIR 1972 SC 1816 : (1972)
2 SCC 36.

69 Harnam Singh v. R.T.A., (1954) SCR 371 : AIR 1954 SC 190.

70 B.B. Enterprises v. State of UP, AIR 1999 SC 468 : (1999) 9 SCC 700 (supra).

71 Hari Shankar v. Excise & Taxation Commissioner, AIR 1975 SC 1211 : (1975) 1 SCC 737; State of Kerala v.
Kandath Distilleries, AIR 2013 SC 1812 : (2013) 6 SCC 573; State of Bihar v. Nirmal Kumar Gupta, AIR 2013 SC 993 :
(2013) 2 SCC 565.

72 Southern Pharmaceuticals & Chemicals v. State of Kerala, (1981) 4 SCC 391 : AIR 1981 SC 1863.

73 State of UP v. Kartar Singh, AIR 1964 SC 1135 : (1964) 6 SCR 679.

74 Burrabazar Fire Works Dealers' Assn. v. Commr. of Police, Calcutta, AIR 1998 Cal 121.

75 State of Punjab v. Devan Modern Breweries Ltd., (2004) 11 SCC 26.

76 Per B.N. AGARWAL, J. See alsoKhoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574; State of Orissa v.
Harinarayan Jaiswal, (1972) 2 SCC 36; State of A.P. v. Prabhakara Reddy, AIR 1987 SC 933 : (1987) 2 SCC 136;
State of A.P. v. Gundakkal Toddy Tappers Co.-op. Society, AIR 1985 SC 1676 : (1985) 3 SCC 360; Synthetics &
Chemicals Ltd. v. State of U.P., AIR 1990 SC 1927 : (1990) 1 SCC 109; State of A.P. v. McDowell & Co., (1996) 3 SCC
709; Ugar Sugar Works Ltd. v. Delhi Administration, AIR 2001 SC 1447 : (2001) 3 SCC 635; Secy. to Govt., State of
Tamil Nadu v. T.N. Vinayagamurthy, AIR 2002 SC 2968 : (2002) 7 SCC 104.
 602

77 Kerala Samastha Chethu Thozhilali Union v. State of Kerala, (2006) 4 SCC 327.

78 AIR 1958 Ker 129(FB) .

79 Harnam Singh v. R.T.A., (1954) SCR 371 : AIR 1954 SC 190; Hans Raj v. State of U.P., AIR 1975 SC 389 (Pa Ma.
8) : (1975) 1 SCC 40. See alsoRavichandran R. v. Govt. of Tamilnadu, 2000 (1) CTC 477(Mad) .

80 Harnam Singh v. R.T.A., (1954) SCR 371 : AIR 1954 SC 190.

81 Association of Registration Plates v. Union of India, AIR 2005 SC 469 : (2005) 1 SCC 679.

82 AIR 1953 SC 79 : (1953) SCR 290.

83 See alsoPyare Lal v. Delhi Municipality, AIR 1968 SC 133 : (1967) 3 SCR 747; Sodan Singh v. NDMC, AIR 1989
SC 1988 : (1989) 4 SCC 155; Krishnan v. State of J&K, AIR 1967 SC 1368 : (1967) 3 SCR 50.

84 Star India Ltd. v. Sea T.V. Network Ltd., AIR 2007 SC 1538.

85 SeeGianda Das v. Municipal Corpn. of Delhi, (2010) 10 SCC 715; see alsoSodan Singh v. New Delhi Municipal
Committee, (1989) 4 SCC 155 : AIR 1989 SC 1988 (supra); Fertilizer Corpn. Kamgar Union v. UOI, AIR 1981 SC 344 :
(1981) 1 SCC 568; K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107 : (1982) 2 SCC 273; Bombay Hawkers'
Union v. Bombay Municipal Corpn., AIR 1985 SC 1206 : (1985) 3 SCC 528; Olga Tellis v. Bombay Municipal Corpn.,
(1985) 3 SCC 545 : AIR 1986 SC 180; Saghir Ahmed v. State of UP, AIR 1954 SC 728 : (1955) SCR 707.

86 Sudhir Madan v. MCD, (2009) 16 SCC 460 : (2005) 9 SCALE 419.

87 Maharashtra Ekta Hawkers' Union v. Municipal Corporation, Greater Bombay, (2004) 1 SCC 625.

88 Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545.

89 Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155 : AIR 1989 SC 1988.

90 Sarojini Nagar Market Shopkeepers Association v. NDMC, (2000) 10 SCC 341 : JT (1999) 10 SC 312.

91 Ram Kishore v. MCD, (2009) 16 SCC 615 : (2001) 1 SCALE 414.

92 Sudhir Mohan v. MCD, (2009) 17 SCC 597 : (2007) 8 SCALE 339; Maharashtra Ekta Hawkers' Union v. Municipal
Corpn., Greater Mumbai, (2009) 17 SCC 151 : [2007] 2 SCR 448; Sudhir Mohan v. MCD, (2009) 17 SCC 333 : (2006)
7 SCALE 326.

93 Sodan Singh v. NDMC, AIR 1989 SC 1988 : (1989) 4 SCC 155. (supra); see alsoMaharashtra Ekta Hawkers' Union
v. Municipal Corpn., Greater Bombay, (2004) 1 SCC 625.

94 South Calcutta Hawkers' Assn. v. Government of West Bengal, AIR 1997 Cal 234; see alsoSelf-Employed Workers'
Organisation v. Municipal Corpn., City of Bhavnagar, AIR 2003 Guj 317; seeBapuji Nagar Khendra Byabsai Assn. v.
State of Orissa, AIR 1997 Ori 189.

95 M.A. Pal Mohammed v. R.K. Sadarangani, AIR 1985 Mad 23.

96 UOI v. Howrah Ganatantrik Nagarik Samity, AIR 2003 SC 3990 : (2003) 9 SCC 302.

97 M. Arumugham v. Sr. Post Master, (2000) 2 CTC 80(Mad) .

98 Ibrahim v. R.T.A., (1953) SCR 290 (299) : AIR 1953 SC 79.

99 Fertiliser Corpn. v. Union of lndia, AIR 1981 SC 344 : (1981) 1 SCC 568 (para. 14).

100 Fertiliser Corpn. v. Union of lndia, AIR 1981 SC 344 : (1981) 1 SCC 568 (para. 14).

101 BALCO Employees Union (Regd.) v. Union of India, AIR 2002 SC 350 : (2002) 2 SCC 333; State of Haryana v.
Des Raj Sangar, (1976) 2 SCC 844 : AIR 1976 SC 1199 : (1976) 3 SCR 1034; Southern Structurals Staff Union v.
Southern Structurals Ltd., (1994) 81 Comp. Cases 389(Madras) ; K. Rajendran v. State of Tamil Nadu, AIR 1982 SC
1107 : (1982) 2 SCC 273 : (1982) 3 SCR 628.

102 Fertiliser Corpn. v. Union of lndia, AIR 1981 SC 344 : (1981) 1 SCC 568 (para. 14).

103 See T.K. Tope Constitutional Law of India, 3rd Edn.,at p. 188.
 603

104 Hathising Mfg. Co. v. Union of India, AIR 1960 SC 923 (928) : (1960) 3 SCR 528; Excel Wear v. Union of India, AIR
1979 SC 25 : (1978) 4 SCC 224.

105 Excel Wear v. Union of India, AIR 1979 SC 25 : (1978) 4 SCC 224.

106 Excel Wear v. Union of India, AIR 1979 SC 25 : (1978) 4 SCC 224.

107 Excel Wear v. Union of India, AIR 1979 SC 25 : (1978) 4 SCC 224.

1 Rashid Ahmed v. Municipal Board, (1950) SCR 566 : AIR 1950 SC 163; State of Rajasthan v. Vyas Mohan Lal, (1971)
UJSC 222 (223) : AIR 1971 SC 2068 : (1971) 3 SCC 705.

2 Hathising Mfg. Co. v. UOI, AIR 1960 SC 923 : (1960) 3 SCR 528 (supra).

3 Motilal v. State of UP, AIR 1951 All 257(FB) .

4 P. Ramachandran v. State, AIR 1971 Ker 146.

5 AIR 1979 SC 25 : (1978) 4 SCC 224 (supra).

6 (2002) 2 SCC 578 : AIR 2002 SC 708.

7 Papanasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200 : (1995) 1 SCC 501.

8 Workmen, Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., AIR 1994 SC 2696 : (1992) 3 SCC 336 (supra).

9 Orissa Textile & Steel Ltd. v. State of Orissa, AIR 2002 SC 708 : (2002) 2 SCC 578.

10 Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., AIR 1994 SC 2676 : (1992) 3 SCC 336.

11 D.C.M. v. Union of India, AIR 1989 Del. 193 (paras. 27, 44, 45) (FB).

12 Secy. to Govt. v. A.G. Factory, AIR 1959 AP 538 (541, 544).

13 State of Bihar v. Kameshwar, AIR 1952 SC 252 : 1952 SCR 889.

14 Secy. to Govt. v. A.G. Factory, AIR 1959 AP 538 (541, 544).

15 Vedachala v. DivisionaJ Engineer, AIR 1955 Mad 365.

16 Bhaskaran v. State of Kerala, AIR 1958 Ker 333 (334).

17 Achuthan v. State of Kerala, AIR 1959 SC 490 : 1959 Supp (1) SCR 787. See alsoKrishnan Kakkanth v. Govt. of
Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495; Devata Prasad Singh v. Chief Justice of High Court of Patna, AIR 1962
SC 201 : (1962) 3 SCR 305.

18 Ram Jawaya Kapur, Rai Sahib v. State of Punjab, (1955) 2 SCR 225 (240) : AIR 1955 SC 549; Naraindas v. State of
M.P., AIR 1974 SC 1232 : (1974) 4 SCC 788 (paras. 11-12).

19 Achuthan v. State of Kerala, AIR 1959 SC 490 : 1959 Supp (1) SCR 787. See alsoKrishnan Kakkanth v. Govt. of
Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495; Devata Prasad Singh v. Chief Justice of High Court of Patna, AIR 1962
SC 201 : (1962) 3 SCR 305.

20 Tata Cellular v. Union of India, AIR 1996 SC 11 : (1994) 6 SCC 651.

21 Association of Registration of Plates v. Union of India, AIR 2005 SC 469 : (2005) 1 SCC 679. See alsoDanya
Electric Co. v. State of Tamil Nadu, AIR 1994 Mad 180.

22 Indian Drugs and Pharmaceuticals Ltd. v. Punjab Drugs Manufacturers' Association, AIR 1999 SC 1626 : (1999) 6
SCC 247.

23 Hindustan Paper Corpn. Ltd. v. Govt. of Kerala, AIR 1986 SC 1541 : Sarkari Sasta Anaj Vikreta Sangh v. State of
MP, AIR 1981 SC 2030 : (1981) 4 SCC 471; Krishna Kakkanath v. State of Kerala, AIR 1997 SC 128 : (1997) 9 SCC
495; ONGC v. Association of Natural Gas Consuming Industries of Gujarat, AIR 1990 SC 1851 : 1990 (Supp) SCC 397.

24 Delhi Development Authority v. UEE Electricals Engg. (P.) Ltd., (2004) 11 SCC 213 : AIR 2004 SC 2100.

25 Erusian Equipment and Chemicals Ltd. v. State of W.B., AIR 1975 SC 266: (1975) 1 SCC 70.
 604

26 Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628 : (1979) II LLJ 217 : (1979) 3
SCC 489.

27 Food Corporation of India v. Kamadhenu Cattle Feed Industries Ltd., AIR 1993 SC 1601: (1993) 1 SCC 71.

28 See alsoRam & Shyam Co. v. State of Haryana, AIR 1985 SC 1147; Harminder Singh Arora v. Union of India, AIR
1986 SC 1527; Star Enterprises v. City and Industrial Development Corpn. of Maharashtra, (1990) 3 SCC 280.

29 Akhil Bharatiya Upbhokta Congress v. State of MP, AIR 2011 SC 1834 : (2011) 5 SCC 29.

30 SeeCentre for Public Interest Litigation v. UOI, (2012) 3 SCC 1 : AIR 2012 SC 3725.

31 Hathising Mfg. Co. v. Union of India, AIR 1960 SC 923 : (1960) 3 SCR 528.

32 State of Rajasthan v. Mohan Lal Vyas, AIR 1971 SC 2068 : (1971) 3 SCC 705.

33 State of Orissa v. Harinaryan, AIR 1972 SC 1816 (1822); Purnomoma Ramanata Quenin v. Makar, Kalyan Tandel,
AIR 1974 SC 651 : (1974) 2 SCC 169.

34 Ram Jawaya Kapur, Rai Sahib v. State of Punjab, (1955) 2 SCR 225 (240) : AIR 1955 SC 549; Naraindas v. State of
M.P., AIR 1974 SC 1232 : (1974) 4 SCC 788 (paras. 11-12).

35 State of Orissa v. Harinaryan, AIR 1972 SC 1816 (1822) Purnomoma Ramanata Quenin v. Makar, Kalyan Tandel
AIR 1974 SC 651 : (1974) 2 SCC 169.

36 A.I. Works v. Chief Controller, AIR 1974 SC 1539 (1542) : (1974) 2 SCC 348. See alsoDy. Asst. Iron & Steel
Controller v. Manickchand, AIR 1972 SC 935 : (1972) 3 SCC 324.

37 Andhra Industrial Works v. C.C. of Imports, AIR 1974 SC 1539 : (1974) 2 SCC 348; J. Fernandez & Co. v. Dy. Chief
Controller of Imports & Exports, AIR 1975 SC 1208 : (1975) 1 SCC 716.

38 Daya v. Jt. Chief Controller I & E, AIR 1962 SC 1796 : (1963) 2 SCR 73; Glass Chatom Importers & Users Assn. v.
UOI, AIR 1961 SC 1514 : (1962) 1 SCR 862; Daruka & Co. v. UOI, AIR 1973 SC 2713; A.M. Ahmed & Co. v. UOI, AIR
1982 Mad 247.

39 Kasturi v. State of J.&.K., AIR 1980 SC 1992 : (1980) 4 SCC 1.

40 Ramana v. I.A.A.I., AIR 1979 SC 1628 : (1979) 3 SCC 489; West Bengal Electricity Board v. Patel Engineers, AIR
2000 SC 6821 JT : (2001) 2 SC 524.

41 Premium Granites v. State of Tamil Nadu, (1994) 2 SCC 691; Raunaq International Ltd. v. I.V.R. Construction Ltd.,
AIR 1999 SC 393 : (1999) 1 SCC 492.

42 G.J. Fernandez v. State of Karnataka, AIR 1990 SC 958 : (1990) 2 SCC 488.

43 Humanity v. State of WB, AIR 2011 SC 2308 : (2011) 6 SCC 125.

44 Rashbari Panda v. State of Orissa, AIR 1969 SC 1081 : (1969) 1 SCC 414 : (1969) 3 SCR 374.

45 Tata Cellular v. Union of India, AIR 1996 SC 25.

46 P.U.P.C. v. D.G., Police, AIR 1990 AP 9 (para. 9).

47 Erusion Equipment v. State of W.B., AIR 1975 SC 266 : (1975) 1 SCC 70 (paras. 12, 17-20); Ra-mana v. I.A.A.A.,
AIR 1979 SC 1628 : (1979) 3 SCC 489. See also Southern Painters v. Fertilisers and Chemicals of Travancore Ltd.,
AIR 1994 SC 1277 : 1994 (Supp. 2) SCC 699. Raghunath Thakur v. State of Bihar, AIR 1989 SC 620 : (1989) 1 SCC
229; Vilangadan v. Executive Engineer, AIR 1978 SC 930 : (1978) 3 SCC 36.

48 Erusion Equipment v. State of W.B., AIR 1975 SC 266 : (1975) 1 SCC 70 (paras. 12, 17-20); Ra-mana v. I.A.A.A.,
AIR 1979 SC 1628 : (1979) 3 SCC 489. See also Southern Painters v. Fertilisers and Chemicals of Travancore Ltd.,
AIR 1994 SC 1277 : 1994 (Supp. 2) SCC 699. Raghunath Thakur v. State of Bihar, AIR 1989 SC 620 : (1989) 1 SCC
229; Vilangadan v. Executive Engineer, AIR 1978 SC 930 : (1978) 3 SCC 36.

49 Police Uniforms Procedure Centre v. D.G. & I.G. of Police, AIR 1988 NOC 85(Orissa) .

50 J.K. Enterprises v. State of M.P., AIR 1997 M.P. 68.

51 Patna Regional Development Authority v. Rastriya Pariyojana Nirman Nigam, AIR 1996 SC 2074 : (1996) 4 SCC
529.
 605

52 Justice (R) Fazil Karim, Judicial Review of Public Action, 2006 Edn,, Vol. I, at p. 732.

53 Devata Prasad v. Chief Justice, AIR 1962 SC 201 (203) : (1962) 3 SCR 305; Rangaswami v. Industrial Tribunal, AIR
1954 Mad 553.

54 M.P. Electricity Board v. Shiv Narayan, (2005) 7 SCC 283.

55 In the U.S.A. also it is regarded as a 'privilege' and not an absolute right [Bradwell v. Illinois, (1873) 83 US (16 Wall)
130.]

56 In the U.S.A. also it is regarded as a 'privilege' and not an absolute right [Bradwell v. Illinois, (1873) 83 US (16 Wall)
130.]

57 N.K. Bajpai v. UOI, AIR 2012 SC 1310 : (2012) 4 SCC 653). See alsoH.S. Srinivasa Raghavachar v. State of
Karnataka, (1987) 2 SCC 692 : AIR 1987 SC 1518; Paradip Port Trust v. Workmen, AIR 1977 SC 36 : (1977) 2 SCC
330; Lingappa Pochamma Appelwar v. State of Maharashtra, (1985) 1 SCC 479: AIR 1985 SC 389; Devata Prasad
Singh Chandhani v. Chief Justice and Judges of Patna High Court, AIR 1962 SC 201 : (1962) 3 SCR 305; Brij Mohan
Lal v. UOI, AIR 2012 SC (Civil) 2196 : (2012) 6 SCC 502.

58 Ananthakrishnan v. State of Madras, AIR 1952 Mad 395 (402); Babul Chandra v. Judges of Patna High Court, AIR
1954 SC 524.

59 Babul Chandra v. Judges of Patna High Court, AIR 1954 SC 524.

60 Babul Chandra v. Judges of Patna High Court, AIR 1954 SC 524.

61 Dr. Haniraj L. Chulani v. Bar Council of Maharashtra, (1996) 3 SCC 342 : AIR 1996 SC 1708.

62 Indian Council of Legal Aid v. Bar Council of India, AIR 1995 SC 691 : (1995) 1 SCC 732. See alsoSampath Kumar
v. Bar Council of India, (1995) 1 LW 336(Mad) ; N. Ram Reddy v. Bar Council of State of A.P., AIR 2002 A.P. 484.

63 T.U. Khatri v. Institute of Company Secretaries of India, AIR 2002 Bom 268.

64 Satish Kumar Sharma v. Bar Council of Himachal Pradesh, AIR 2001 SC 509 : (2001) 2 SCC 365.

65 Kota Co-operative Agricultural Bank v. State of Karnataka, AIR 2003 Kant 30.

66 Bar Council of India v. High Court of Kerala, AIR 2004 SC 2227 : (2004) 6 SCC 311. See alsoIn Re, Vinay Chandra
Misra, AIR 1995 SC 2348.

67 R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 : (2010) 2 SCC (Cri) 563.

68 Bar Council of India v. Aparna Basu Mallick, AIR 1994 SC 1334 : (1994) 2 SCC 102.

69 AIR 1971 Pat 316(FB) .

70 AIR 1974 SC 1212 : (1974) 4 SCC 635.

71 Digambar v. Nanda, AIR 1957 Or. 281 (283); Varma v. Ambala, AIR 1956 Cal 476.

72 Varma v. Ambala, AIR 1956 Cal 476;Nabin v. State, AIR 1957 Or 56.

73 AIR 1993 SC 2335 : (1993) 3 SCC 723.

74 Achuthan v. State of Kerala, AIR 1959 SC 490 : 1959 Supp (1) SCR 787; Ram Jawaya v. State of Punjab, (1955) 2
SCR 225 (240); Naraindas v. State of M.P., AIR 1974 SC 1232 : (1974) 4 SCC 788 (paras. 11-12); State of Orissa v.
Harinaryan, AIR 1972 SC 1816 (1822) : (1972) 2 SCC 36; Purnomoma Ramanata Quenin v. Makar Kalyan Tandel, AIR
1974 SC 651 : (1974) 4 SCC 788; A.I. Works v. Chief Controller, AIR 1974 SC 1539 (1542) : (1974) 2 SCC 348; Kasturi
v. State of J.&K., AIR 1980 SC 1992 : (1980) 4 SCC 1.

75 Balakotiah v. Union of India, AIR 1958 SC 232 : 1958 SCC 1052 (para. 17).

76 M.H. Devendrappa v. Karnataka State Small Industries Development Corpn., AIR 1998 SC 1064 : (1998) 3 SCC
732.

77 Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101: 1991 (Supp-1) SCC 600.
 606

78 Kameswar v. State of Bihar, AIR 1962 SC 1166 (1170) : 1962 Supp (3) SCR 369; Acctt. Genl. v. Baksi, AIR 1962 SC
505 (510) : 1962 Supp (1) SCR 505.

79 M.H. Devendrappa v. Karnataka Small Industries Development Corpn., AIR 1998 SC 1064 : (1998) 3 SCC 732
(supra). See alsoP. Balakotiah v. UOI (supra); Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 : 1962 (Supp-
3) SCR 369 (supra); O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 : 1963 (Supp-1) SCR 789 (supra).

80 T.K. Rangarajan v. Govt. of Tamil Nadu, AIR 2003 SC 3032 : (2003) 6 SCC 581.

81 See Art. 309 post.

82 Banarsi Das v. State of U.P., (1956) SCR 357 : AIR 1956 SC 520.

83 State of Punjab v. Joginder Singh, AIR 1963 SC 913 : 1963 (Supp-2) SCR 169.

84 Ghosh v. Joseph, AIR 1963 SC 812 : 1963 Supp (1) SCR 789.

85 Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248.

86 State of Mysore v. Kasi, AIR 1985 SC 651 : (1985) 2 SCC 110 (para. 3); Jarnail v. State of Punjab, AIR 1986 SC
1626 : (1986) 3 SCC 277 (para. 35).

87 Baleswar v. State of U.P., (1980) 4 SCC 226 (237-38) : AIR 1981 SC 41,

88 O.P. Singla v. Union of India, (1984) 3 SCC 450 (467) : AIR 1984 SC 1595.

89 D.T.C. v. Mazdoor Congress, AIR 1991 SC 101 : 1991 Supp (1) SCC 600 (paras, 199, 262).

90 Union of India v. Tulsiram, AIR 1985 SC 1416 : (1985) 3 SCC 398 (para. 50).

91 Bharat Coking Coal Limited v. Babulal, (1997) II LLJ 926. See also M.L. Kamra v. Chairman-cum-Managing
Director, New India Assurance Co. Ltd., AIR 1992 SC 1072 : (1992) 2 SCC 36.

92 Wasim Beg v. State of U.P., AIR 1998 SC 1291 : (1998) 3 SCC 321.

93 Hukum Chand v. Union of India, AIR 1959 SC 563 : 1959 Supp (1) SCR 769.

94 AIR 1978 SC 597 : (1978) 1 SCC 248.

95 AIR 1962 SC 171 : (1962) 3 SCR 269.

96 Fertiliser Corpn. v. Union of India, AIR 1981 SC 344 : (1981) 1 SCC 568.

97 Fertiliser Corpn. v. Union of India, AIR 1981 SC 344 : (1981) 1 SCC 568 (supra).

98 Cf. N.U.C. Employees v. Industrial Tribunal, AIR 1962 SC 1080 (1085) : 1962 Supp (3) SCR 157. See
alsoSakharam Narayan Khardekar v. City of Nagpur, AIR 1964 Bom 200.

99 Cf. Inland Rev. Commrs, v. Maxse, (1919) 1 KB 647.

100 Lala Indra Sen, In re., (1940) 8 ITR 187; Also seeB. Malik v. CIT, (1968) 67 ITR 616(Allahabad) .

1 Samir v. Someswar, A, 1953 Cal 783.

2 Lucin v. Hamlyn, 21 LT 366.

3 Webster's New World Dictionary.

4 Sodan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988 : (1989) 4 SCC 155; see alsoTMA Pai
Foundation v. State of Karnataka, AIR 2003 SC 355 : (2002) 8 SCC 481; Kodali Kumaraswamy v. State of AP, AIR
1992 AP 170.

5 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.

6 (Majority view) See also Modern School v. Union of India, AIR 2004 SC 2276 : (2004) 5 SCC 583.

7 Preeti Srivastava v. State of MP, AIR 1999 SC 2894 : (1999) 7 SCC 120.
 607

8 Loka Shiasha Trust v. I.T. Commissioner, Mysore, AIR 1976 SC 1014; see alsoGujarat University v. Sri Krishna
Ranganath Mudhalkar, AIR 1963 SC 703 : 1963 (Supp-1) SCR 122.

9 SeeAvinashi Mehrotra v. UOI, (2009) 6 SCC 398 : (2009) 5 SCALE 354.

10 SeeSociety for Unaided Private Schools of Rajasthan v. UOI, AIR 2012 SC 3445 : (2012) 6 SCC 1; see alsoT.M.A.
Pai Foundation v. State of Karnataka , (supra).

11 IITT College of Engineering v. State of H.P., (2003) 7 SCC 73 : AIR 2003 SC 3629.

12 Unnikrishnan J.P. v. State of A.P., AIR 1993 SC 2178 : (1993) 1 SCC 645.

13 Ruth Soren v. Managing Committee, East ISSDA, AIR 2001 SC 380 : (2001) 2 SCC 115.

14 Islamic Academy of Education v. State of Karnataka, AIR 2003 SC 3724 : (2003) 6 SCC 697 - majority view.

15 SeeSociety for Unaided Private Schools of Rajasthan v. UOI, AIR 2012 SC 3445 : (2012) 6 SCC 1 (supra).

16 Rajan Purohit v. Rajasthan University of Health Sciences, (2012) 10 SCC 770 : (2012) 8 SCALE 71.

17 See alsoT.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; P.A.Inamdar v. State of Maharashtra,
(2005) 6 SCC 537.

18 K.R. Ramaswamy v. State, AIR 2008 Madras 25.

19 P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226 : (2005) 6 SCC 537.

20 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.

21 Islamic Academy of Education v. State of Karnataka, AIR 2003 SC 3724 : (2003) 6 SCC 697; Unnikrishnan v. State
of Karnataka, AIR 1993 SC 2178 : (1993) 1 SCC 645.

22 Unnikrishnan K.P. v. State of Karnataka, AIR 1993 SC 2178 : (1993) 1 SCC 645. See alsoAhmedabad St. Xaviers
College Society v. State of Gujarat, (1974) 1 SCC 717 : (1975) 1 SCR 173. See alsoParshvanath Charitable Trust v. All
India Council for Technical Education, (2013) 3 SCC 385; Maa Vaishnuo Devi Mahila Vidyalaya v. State of UP, (2013) 2
SCC 617.

23 Naraindas Indurkhya v. State of M.P., AIR 1974 SC 1232 : (1974) 4 SCC 788.

24 Sindhi Education Society v. Govt., (NCT of Delhi) (2010) 8 SCC 49.

25 See alsoT. Varghese George v. Kora K. George, AIR 2012 SC 144 : (2012) 1 SCC 369.

26 Modern School v. Union of India, AIR 2004 SC 2276 : (2004) 5 SCC 583.

27 SeeCharutar Arogya Mandal v. Justice R.J. Shah (R) Fee Committee, (2010) 15 SCC 514; see alsoP.A. Inamdar v.
State of Maharashtra, (2005) 6 SCC 537 : AIR 2005 SC 3226; see alsoGuru Ghasidas University v. Sudip Shrivastava,
(2010) 15 SCC 556.

28 Islamic Academy of Education v. State of Karnataka, AIR 2003 SC 3724 : (2003) 6 SCC 697 (supra). See alsoP.A.
Inamdar v. State of Maharashtra, AIR 2005 SC 3226 : (2005) 6 SCC 537. See alsoSindhi Education Society v. Govt.
(NCT of Delhi), (2010) 8 SCC 49.

29 Bharat Sevashram Sangh v. State of Gujarat, AIR 1987 SC 494 : (1986) 4 SCC 51.

30 Ballentine, Law Dictionary, 1948, at pp. l79, 1291.

31 Ms. S. Bagavathy v. State of Tamil Nadu, (2007) 2 MLJ 526(FB) : AIR 2007 (NOC) 1147(Mad) .

32 Cf. State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 (613) : (1960) 2 SCR 866.

33 Saghir Ahmed v. State of UP, AIR 1954 SC 728 : (1955) SCR 707.

34 Iqbal v. Municipal Board, AIR 1959 All 186.

35 Kanwarjit Singh Kakkar v. State Punjab, (2011) 13 SCC 158 : (2011) Cr LJ 3360(SC) .

36 Re. Law Reporting Council, 22 QBD 279.

 608

37 Re. Law Reporting Council, 22 QBD 279.

38 M.P. Electricity Board v. Shiv Narayan, (2005) 7 SCC 283.

39 T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355 : (2002) 8 SCC 481.

40 P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226 : (2005) 6 SCC 537; Modern School v. Union of India, AIR
2004 SC 2236 : (2004) 5 SCC 583, Islamic Academy of Education v. State of Karnataka, AIR 2003 SC 3724 : (2003) 6
SCC 697; Unnikrishnan, J.P. v. State of A.P., (1993) 1 SCC 645 : AIR 1993 SC 2178.

41 Cf. Commr. of I.T. v. R.W.I. Turf Club, 1954 SCR 289 (308-9) : AIR 1954 SC 85; Eccentric Club Case, (1924) 1 KB
390. (421-2).

42 Lokenath v. State of Orissa, AIR 1952 Ori 42.

43 Ballentine, Law Dictionary, 1948, pp. l79, 1291.

44 4th Edn., Vol. 27 at p. 273 (para 325).

45 Smith v. Anderson, 15 Ch.D 258.

46 Lokenath v. State of Orissa, AIR 1952 Ori 42.

47 State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 (613) : (1960) 2 SCR 866.

48 Krishan Kumar v. State of J&K, AIR 1967 SC 1368 (1371) : (1967) 3 SCR 50.

49 Krishan Kumar v. State of J&K, AIR 1967 SC 1368 (1371) : (1967) 3 SCR 50; Narain Swadeshi Weaving Mills v.
Commr. of Excess Profits Tax, (1955) SCR 952 (961) : AIR 1955 SC 176. See alsoCBI v. V.C. Shukla, (1998) 3 SCC
410.

50 Dena Bank, Ahmednagar v. Prakash Birbhan Kataria, AIR 1994 Bom 343.

51 Karnataka Pawnbrokers Assn. v. State of Karnataka, AIR 1999 SC 201 : (1998) 7 SCC 707.

52 B.R. Enterprises v. State of UP, AIR 1999 SC 1867 : (1999) 9 SCC 700 (supra).

53 Chimanlal Premchand v. State of Bombay, AIR 1960 SC 96 : (1960) 1 SCR 764.

54 Revenue Board v. A.M. Awari, AIR 1976 SC 1813 : (1976) 3 SCC 512.

55 Cf. Mazagaon Dock v. C.I.T., AIR 1958 SC 861 : 1959 SCR 848; Mohanlal v. Kondiah, AIR 1979 SC 1132 : (1979) 4
SCC 502.

56 Re. A Debtor, (1927) 1 Ch. 9.

57 N. S. W. Mills v. C.I.T., AIR 1955 SC 96.

58 Re. A Debtor, (1927) 1 Ch. 9.

59 Senairam Doongarmall v. Commissioner of Income Tax, AIR 1961 SC 1579.

60 Barendra Prasad v. I.T. Officer, AIR 1981 SC 1047.

61 For a detailed meaning of expression "business", see P. Ramanatha Aiyer, Advanced Law Lexicon, 3rd Edn., 2005,
Book I, at pp. 630-634.

62 Chimanlal v. State of Bombay, AIR 1960 SC 96 : (1960) 1 SCR 764 (para 12).

63 State of Bombay v. Chamarbaugwala, AIR 1957 SC 699 (718-720) : 1957 SCR 874.

64 Nebbia v. New York, (1934) 291 US 502.

65 1st Indian Reprint, 2005, at p. 572.

66 Nebbia v. New York, (1934) 291 US 502.

67 Wolf Packing Co. v. Court of Ind. Relations, (1923) 262 US 522.

 609

68 Williams v. Standard Oil Co., (1929) 278 US 235.

69 (1932) 285 US 262).

70 See alsoLouis K. Liggett Co. v. Baldridge, (1928) 278 US 105 (invalidating a law limiting entry into pharmacy
business to pharmacists).

71 Hutchinson Ice Cream Co. v. Iowa, (1916) 242 US 153.

72 Corn Products v. Eddy, (1919) 249 US 304.

73 Carolene Products v. U.S., (1944) 323 US 18.

74 Powell v. Pennsylvania, (1888) 127 US 678.

75 Holden v. Hardy, (1898) 169 US 366.

76 Holden v. Hardy, (1898) 169 US 366.

77 Hutchinson Ice Cream Co. v. Iowa, (1916) 242 US 153.

78 Armour & Co. v. N. Dakota, (1916) 240 US 510; Corn Products Co. v. Eddy, (1919) 249 US 427.

79 Pacific State Box Co. v. White, (1935) 296 US 218.

80 Semlar v. Oregon, (1935) 294 US 608.

81 National Fertilizer Assocn. v. Bradley, (1037) 301 US 178.

82 Advance-Rumley T. Co. v. Jackson, (1932) 287 US 283.

83 Fischer v. St. Louis, (1904) 194 US 361; see also Ibrahim v. R.T.A., (1953) SCR 290 (299) : AIR 1953 SC 79.

84 Nebbia v. New York, (1934) 291 US 502.

85 Cf. State Govt. v. Amritlal, (1953) 8 DLR 164(Nag) .

86 Sunshine Coal Co. v. Adkins, (1940) 310 US 381.

87 Yeiser v. Dysart, (1925) 267 US 540.

88 Lorain Journal v. U.S., (1952) 342 US 143.

89 Noble State of Bank v. Haskell, (1911) 219 US 104.

90 New State Ice Co. v. Liebmann, (1952) 285 US 262.

91 Giboney v. Empire Storage Co., (1949) 336 US 490 (495).

92 Grenada Lumber Co. v. Mississippi, (1910) 217 US 433 (440).

93 Parker v. Brown, (1934) 317 US 341.

94 U.S. v. Darby, (1941) 312 US 100.

95 West Coast Hotel Co. v. Parrish, (1937) 300 US 379.

96 N.Y. Central R.R. Co. v. White, (1917) 243 US 188.

97 Helvering v. Davis. (1937) 301 US 619; Steward Machine Co. v. Davis, (1937) 301 US 548; National Labour Bd. v.
Jones., (1937) 301 US 1.

98 Holden v. Hardy, (1898) 169 US 366.

99 (1908) 208 US 412.

100 See alsoBunting v. Oregon, (1917) 243 US 426.

101 (1923) 261 US 525.

 610

53c)  The Federal Trade Commission Act, 1914, which created the Federal Trade
Commission, and prohibits unfair methods of competition, false advertising and the like.
21d)  The Federal Securities Act, 1933, which requires corporations to furnish
statements to the Securities and Exchange Commission with a view to providing
accurate information to investors.
13e)  The Securities Exchange Act . 1934, which regulates the national security
exchanges with a controlling speculation and like malpractices.
9f)  The Holding Company Act, 1935, which regulates electric and gas holding
companies.
7g)  The Water Power Act, 1920, which created the Federal Power Commission
which controls generation, transmission and distribution of electric power and gas.
5h)  The Motor Carrier Act, 1935, which regulates the business of motor carriers.
56i)  The Communications Act, 1934, which created a Federal Communications
Commission to regulate broadcasting, television, telephone, telegraph and like agencies
of communication.
2j)  The Food and Drug Act, 1906, which forbids transhipment of mis-branded
and adulterated foods, drugs, and the like, and created the Food and Drug
Administration for administering the Act .
U.K.
(B) England.--A large number of restrictive statutes have been enacted since the trend towards a
welfare State, e.g.,--

57i)  The Prevention of Fraud (Investments) Act, 1958, provides for the control,
by the Board of Trade, of security dealers who are not members of recognised
exchanges.
52ii)  The Hotel Proprietors Act, 1956; Slaughter of Animals Act, 1958;
Slaughterhouses Act, 1958.
33iii)  The Restrictive Trade Practices Act, 1956, 1976 provides for the control of
monopolistic and other restrictive trade arrangements which affect supplies in the U.K.
23iv)  The National Health Service Act, 1977; Medical Act, 1978; Solicitors Act,
1974; Dentists Act , 1984; Professions Supplementary to Medicine Act, 1960; Medical
Act, 1983.
19v)  Coal Industry Nationalisation Act, 1946; Coal Industry Act, 1987.
14vi)  Factories Act , 1937; National Insurance Act , 1965.
Regulation of a profession
See under Cl. (6)(i), post.
Grounds of restriction
India

23.  The fundamental right of a citizen to carry on any occupation, trade or

business under Art. 19(1)(g) of the Constitution is not absolute; it is subject to
reasonable restrictions which may be imposed by the State in the interests of the
general public.1
The expression "reasonable restriction" signifies that the limitation as the right should not be arbitrary
or excessive in nature and it has to strike a proper balance between the freedoms available under Art.
19(1)(g) and social control permitted by Art. 19(6). 2 Where restrictions imposed upon the carrying on of
a business are so stringent that the business cannot be carried on, the court will regard the imposition
of restriction as unreasonable.3 In Mohammed Yasin v. Town Area Committee ,4 the Municipal
 611

Committee's byelaw provided that no person shall sell or purchase any vegetables or fruits within the
municipal area, wholesale or by auction without paying the prescribed fee. It was urged on behalf of
wholesale dealers in vegetables that although there was no prohibition against carrying on the
business in vegetables by anybody, in effect the byelaws brought about a total stoppage of wholesale
business in a commercial sense, for, he had to pay the prescribed fee to the contractor and under the
byelaws the wholesale dealer could not charge a higher rate of commission than the contractor. The
wholesale dealers, therefore, could charge the growers of vegetables and fruits only the commission
permissible under the byelaws and he had to make over the entire commission to the contractor
without retaining any part of it. The wholesale dealer was therefore converted into a tax collector for
the contractor or the Town Area Committee without any remuneration. The byelaws in this situation
were struck down as impairing freedom of trade and business.
The authorities, or private persons or industry are bound by the direction contained in Part IV, Part III
and Preamble of the Constitution. The right to carry on trade is subject to the directions contained in
the Constitution, the Universal Declaration of Human Rights, European Convention of Social,
Economic and Cultural Rights and the Convention on Right to Development for Socio-Economic
Justice. Social security is a facet of Socio-economic justice to the people and means of livelihood. 5
Where restrictions are imposed on freedom of trade or business to implement the Directive Principles
of State Policy, it has to be regarded to be in the interests of general public. 6

27.  Clause (6) of Art. 19 authorises the State--(i) to impose 'reasonable

restrictions' upon the freedom of trade, business, occupation or profession--in the
interests of the general public; (ii) to prescribe the professional or technical qualifications
necessary for carrying on any occupation, trade or business; (iii) to carry on any trade or
business by itself or through a corporation owned or controlled by the State, to the
exclusion of private citizens, wholly or in part.
Restrictions imposed against acceptance of deposits by unincorporated bodies carrying on financial
act ivities or the business of deposit acceptance or lending in any manner are in the larger interest of
the general public vis--vis few persons accepting such deposits. The restriction could not be
considered to be unreasonable or arbitrary.7
A policy decision taken to shift a wholesale vegetable and fruit market from an existing place to a new
area outside city due to traffic congestion, pollution and diseases was held reasonable in the interest
of general public.8 Legislature is entitled to make a law relating to professional or technical
qualification necessary for carrying on of that profession. Restriction on members of Excise, Custom
and Service Tax Tribunal from appearing, acting or pleading before such tribunal on demitting office is
reasonable. It was also held that it was only a partial restriction since right of such advocates to
appear before the High Court and the Supreme Court is not affected. Further, they can also appear
before District Court, Tribunal other than (ESTAT). Court said that such restriction is intended to serve
lager public interest and to uplift professional values and standards of advocacy adding further to
public confidence in the administration of justice.9 A provision in Indian Medicine Central Council Act ,
1970 that a person to be eligible to gractise, his name must be included in the Central Register is a
reasonable restriction.10
Considering the scope of economic and tax legislation, it is a settled law that the courts must bear in
mind that unless the provision is manifestly unjust or glaringly unconstitutional, the court must show
judicial restraint in interfering with its applicability.11
The right to render dance performance is a fundamental right and it cannot be excluded by dubbing it
as res extra commercium. Prohibiting dance in certain eating houses was sought to be justified on the
ground that the women have no fundamental right as the dance performance in eating houses, permit
room, beer bars was held unconstitutional. The prohibition was also held as bad, there being no direct
and inevitable effect.12 The Court also said that when there is already a legislation, which satisfies
reasonableness of restriction, to control dance performance, total ban on such performance was far in
excess of what is required and hence unreasonable.
 612

18.  Restrictions imposed by the State upon the freedom guaranteed by Art.
19(1)(g) cannot be justified on any ground outside Cl. (6). 13
The validity of restrictions has to be tested on certain objective criteria, namely, (1) whether the
appropriate Legislature has the legislative competency to make the law, (2) whether the said law
infringes any of the fundamental rights, (3) even if it infringes the freedom under Art. 19, whether, the
infringement only amounts to "reasonable restriction" on such rights "in public interest". By this
process of scrutiny, the Court maintains the validity of only such laws as to keep a just balance
between freedom and social control. The duty of reconciling the fundamental rights under Art. 19, and
the laws of social control is cast upon the courts and the touchstone or the standard is contained in
the said two expressions. The standard is an elastic one; it varies with time, space and condition.
What is reasonable under certain circumstances may not be so under a different circumstance. 14
Government Order issued in public interest overrides individual interest and the question of public
interest must be considered not from the point of view of interest of the person on whom the restriction
is imposed, even if the restriction operates on him harshly. 15
The object of imposing restrictions under Clause (6) is to strike a balance between individual freedom
and social control.16 Which means a law providing for basic amenities; for the dignity of human labour
like provision for canteen, rest rooms, facilities for drinking water, latrines and urinals, etc. is a social
welfare measure in the interest of general public. Likewise, in respect of legislations and notifications
concerning the wages, working conditions or other amenities for the working class, the courts have
adopted a liberal attitude and the interest of the workers has been protected notwithstanding the
hardship that might be caused to the employers.17 Sections 12 of the Minimum Wages Act , requires
every employer to pay to every employee engaged in a scheduled employment, the wages at a rate
not less than the minimum rate of wages fixed under the Act. In Vijay Cotton Mills Ltd. v. State of
Ajmer,18it was contended that provisions of the Act were bound to affect harshly and even oppressively
a particular class of employers who for purely economic reasons were unable to pay the minimum
wages fixed by the authorities, but had absolutely no dishonest intention of exploiting their labourers. If
it was in the interest of the general public that labourers should be secured adequate wages, the
intentions of the employer whether, good or bad are really relevant. Individual employers might find it
difficult to carry on the business on the basis of the minimum wage fixed under the Act; this must be
due entirely to the economic condition of these particular employers. That cannot be a good ground
for striking down the law itself as unreasonable. The restrictions, though, they interfere to some extent
with the freedom of trade or business guaranteed under Art. 19(1)(g), are reasonable and being
imposed in the interest of the general public, are protected in terms of clause (6) of Art. 19. 19 The
reasonableness of a restriction is to be determined in an objective manner and from the standpoint of
the interest of the general public and not from the standpoint of the interest of the person upon whom
the restrictions were imposed or upon abstract consideration. A restriction cannot be said to be
unreasonable, merely because in a given case, it operates harshly. In determining the infringement of
the rights guaranteed under Art. 19(1)(g), the nature of right alleged to have been infringed, the
underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the prevailing condition at the time, enter into
judicial verdict.20 The court must take into account, whether the law has struck a proper balance
between social control on the one hand, and the right of the individual on the other. The court has to
take into account such factors as the nature of the right enshrined, underlying purpose of the
restrictions imposed, evil sought to be remedied by the law, its extent and urgency, how far the
restriction is or is not proportionate to the evil and the prevailing condition of the time. 21 Merely
because the authorities did not make any attempt to implement a law which sufficiently safeguards
dancers to maintain their dignity, another law more stringent which prohibits dance performance at all
is unreasonable. Mere allegation that existing law cannot be applied to such establishments was in
fact found not correct. Subsequent legislation which prohibits the freedom of trade or profession was
found to be unnecessary and also disproportionate to the requirements. 22
Public order is an expression of wide connotation intended to take care of "public safety" for the
members of the "public safety". Public order need not in every case be traced either to the security of
State or to the law and order. Protecting the deposits made by individuals or organisations that deal in
 613

trade in finance, without authority of law, is an act ion for "public safety" and comes within the
comprehensive meaning of public order.23

9.  No question of justifying a restriction under Cl. (6) arises unless the
Petitioner succeeds in establishing that the right which is alleged to be infringed is a
'fundamental right', coming within the ambit of Art. 19(1)(g)24 and that the impugned law
has infringed some right vested in the petitioner, as distinguished from being merely
regulatory of the trade or business25.
'Law'
For the purposes of imposing restriction, "law" includes subordinate legislation or executive order. 26
Any law which is made under Clauses (2) to (6) of Art. 19, to regulate the exercise of the right under
Art. 19(1)(g), must be 'law' having statutory force and not a mere executive or departmental
instruction.27
The following have been held to be law, under Art. 13, the validity of which can be tested on the
touchstone of Fundamental Rights: (a) a resolution passed by State Government under Fundamental
Rule 44 of the State;28(b) a Government notification under the Commission of Enquiry Act setting up a
commission of enquiry;29(c) a notification30 or an order31 under a statute; (d) an administrative order, but
not an administrative instruction;32(e) a custom or usage;33(f) byelaw of a municipal or a statutory
body;34(g) regulations made by a statutory corporation like LIC. 35
'Law', for the purpose of Art. 19(6) does not include a circular or policy decision in terms of Art. 162 of
the Constitution. Such a law must be one enacted by the Legislature. 36 However, where there is a
constitutional right, there is no need for a law to be passed in terms of Art. 19(6). 37
While the Constitution permits a 'law' laying down reasonable restrictions on the exercise of rights
conferred by Art. 19(1), the reasonableness has to be of the law also. 38
When the Parliament decides to enact a law, which is within its competence, intended to remedy an
apprehended danger or evil, it is not open to court to examine the question whether other remedies
could have been taken and not being taken, whether there had been an infraction of Art. 19(1)(g). 39
Law, in this context, postulates a law which is otherwise valid. Hence, any imposition, which restricts a
citizen's right to carry on an occupation, trade or business, but is not authorised by law, cannot be
covered by Clause (6) and must, accordingly, be held to be invalid, being in contravention of Clause
(1)(g),40e.g.,--

80a)  A bye-law41 or order or rule42 which is ultra vires;

83b)  A rule43 or order44 which has not been duly published45 or laid before
Parliament46, as required by the statute;
54c)  A sales tax which contravenes Art. 286;47
22d)  A law or subordinate legislation which is vitiated by excessive delegation. 48
It follows that in order to constitute a 'reasonable' restriction under Cl. (6), both the law as well as any
order made thereunder must satisfy the test of reasonableness 49.
What is a 'restriction' upon the freedom of business

24.  As in the case of other fundamental rights, nothing is to be considered as a

'restriction' imposed upon the present freedom unless it 'directly' and 'proximately'
interferes with the exercise of the freedom of trade or profession. Thus, the test in Cl. (6)
cannot be applied to test the reasonableness of the following as restrictions imposed on
the freedom of trade or business, even though the person in question may be indirectly
affected in his business:
17. A law with respect to recovery of debts, even though the debtor might be a
trader.50
 614

17. A law which provides that a business cannot be carried on except in

accordance with a licence granted by the administrative authority. 51

Whenever the court is called upon to examine the complaint that the restrictions
imposed on the freedom to carry on trade are unreasonable, it is necessary to find out
what is the trade or business of the complainant petitioner, and to what extent the
restriction, if any, is imposed upon the freedom to carry on trade or business and then to
determine whether the restriction is reasonable, or otherwise. It is the direct impact of
the restriction on the freedom to carry on trade that has to be kept in view and the
ancillary or incidental effect of the governental act ion on the freedom to carry on trade. 52
Unless direct or inevitable consequence is shown to exist, the legislation cannot be
struck down.53
A regulation of trade and commerce becomes challengeable under Art. 19(1)(g), if it is
shown that it directly and proximately interferes 'in presenti' with the exercise of the
freedom of trade. If the alleged restriction does not directly or proximately interfere with
the exercise of freedom of trade, the freedom guaranteed by Art. 19(1)(g) is not
violated.54
In Ram Jawaya v. State of Punjab ,55 the Government scheme to nationalise school
textbooks was held valid under Art. 19(1)(g) because private publishers' right to print and
publish any book they liked offer the same for sale was not curtailed. The choice of
textbooks for the recognised schools lay with the Government and the publishers had no
fundamental right to have any of their books prescribed as textbooks by the school
authorities.
The Government of Kerala directed that the farmers getting assistance from it for
purchase of pumpsets had to purchase it from Government approved pump dealers.
Private dealers challenged the direction on the ground that it violated their right under
Art. 19(1)(g). While rejecting the contention, it said that no one has a fundamental right
to insist upon Government or any other individual for doing business with him. A
Government or an individual is free to determine with whom it will do business and it has
every right to select dealers of its choice for delivery of pumpsets keeping in view the
price and after sale service and this cannot be challenged as an unreasonable restriction
under Art. 19(1)(g) read with Art. 19(6).56
If the legislation seeks directly to control citizen's right under Art. 19(1)(g), its validity has
to be tested in the light of the provisions contained in Clause (6) and if such a legislation,
indirectly or incidentally affects a citizen's right under any other clause of Art. 19, which,
will not introduce any infirmity in the Act itself.57The act ion may have a direct effect on a
fundamental right although its direct subject matter may be different. The word "direct"
would go to the quality or character of the effect and not to the subject-matter. The object
of the law or executive action is irrelevant when it is established that the fundamental
right is violated.58
28.  Neither is a law to be held to have imposed any restriction upon the right
guaranteed by Art. 19(1)(g), if it merely regulates the trade or business, without infringing
any right vested in the petitioner.59
The Government of Maharashtra took a policy decision that required a private operator
or travel agent to have a minimum office area of 250 sq. ft. as one of the eligibility
conditions for registration for ferrying pilgrims for Haj along with annual turnover of
Rupees one crore and security deposit of twenty five lakhs. The Court said that it is
reasonable restriction. The Court said that the requirement is reasonable keeping in view
the services which a private tour operator or travel agent is supposed to provide to Haj
pilgrims. Such a requirement, the court said, ensures that only genuine tour operators
will come forward for registration.60
 615

In UOI v. International Trading Co .,61 the court said: "Reasonableness of restriction is to

be determined in an objective manner and from the standpoint of interest of the general
public and not from the standpoint of the interest of persons upon whom restrictions
have been imposed or upon abstract consideration. A restriction cannot be said to be
unreasonable merely because in a given case, it operates harshly. In determining
whether there is any unfairness involved, 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
condition at the relevant times enter the judicial verdict. The reasonableness of
legitimate expectation has to be determined with respect to circumstances relating to the
trade or business in question. Canalisation of a particular business in favour of even a
specified individual is reasonable, where, the interests of the country are concerned or
where business affects the economy in the country.62
Interests of the general public

25.  As far as the expression 'interests of the general public'is concerned, it is a

comprehensive expression comprising of any matter which affects the public welfare, or
public convenience,63e.g., public order, health, morality,64 safety, economic stabilit3y65 of
the country,66 equitable distribution of essential commodities at fair prices; 67 maintenance
of purity in public life68, prevention of fraud;69 amelioration of the conditions of farmers70 or
workmen71 prevention of exploitation of labourer, e.g., rickshaw pullers;72 control of
hoarding;73 implementation of the Directives in Part IV.74
The expression, "in the interest of general public" is vague and may confer on the
executive a wide scope for curtailment of right under Art. 19(1)(g). The courts will have to
examine carefully whether, any particular restriction on the right is in the interest of the
general public and what constitutes "interest" of the general public. However, courts
have pointed out that the restrictions are in the interests of the general public, even if
they are meant for people of a particular area or a particular State. It does not mean that
the interest must be for the public of the whole of India. It may be even with reference to
the interests of particular individuals.75 The expression "interest of general public" is a
wide expression, which covers within its broad sweep all kinds of interests of the general
public, including interests in the sovereignty and integrity of India, security of India and
friendly relations of India with foreign States.76 The above expression has given wide
amplitude to the permissible law which can be enacted to impose reasonable restrictions
on the rights guaranteed by Art. 19(1) of the Constitution. 77 The expression, "in the
interest of general public" inter alia includes protection of morality.78
29.  Hence, under this power, the State may--
26. Prohibit inherently dangerous or immoral occupations which cannot be
allowed to exist at all, e.g., gambling, sale of intoxicating drugs and beverages; 79
or prohibit such advertisement of drugs and medicines as is necessary to protect
the general public from the evils of self-medication 80 or to suppress or control
prostitution.81
Trade or business involving danger to public health and safety such as trade in
poison can be regulated. The nature of trade in poison is such that nobody can be
considered to have an absolute right to carry on such trade. It is a business which
can be even termed as inherently dangerous to health and safety of society in
view of its rampant misuse and sale to the poor, weak and helpless as an
intoxicant. A law in such circumstance can regulate the trade. 82
26. Forbid the employment of women and children in certain employments,
mines, etc., in the interests of their health or safety; or lay down a minimum age
or limited hours of employment in certain callings;83
15. Prescribe minimum wages in an industry to secure that the labourers,
should enjoy adequate living wages and maintain a standard of health and
 616

decency;84 provide for payment of compensation to workmen on 'retrenchment' or

'closure' of an industry in order to mitigate their misery resulting from
unemployment,85 provide for the fixation of 'fair wages' by a Board constituted of
representatives of the employer and the employees, even where there is no
'industrial dispute'86; extend the definition of 'employer', in order to bring within the
purview of the Industrial Disputes Act 87 or the Provident Funds Act 88 employers
who engage contractors for doing industrial work.
9. Impose restrictions upon a business, e.g., upon the right to play vehicles on
public highways, for the conservation of roads, prevention of congestion and the
like;89 upon the right to export or import goods,90 for the purpose of ensuring a
supply and even distribution of the foods to consumers and of preventing
fluctuation in prices and speculation91 or of stablising the national economy;92
freezing of foodgrains in a time of scarcity, to ensure equable distribution. 93
4. Restrictions imposed upon the sale of essential commodities to ensure their
equitable distribution and availability at fair prices, e.g.,94 the fixing of maximum
selling prices,95 or upon the production of food products for the maintenance of
their food value, e.g., to require that a beverage must contain a maximum
percentage of fruit juice;96 elimination of hoarders and black-marketeers;97 fixing a
maximum stock-limit.98
Price fixing, being essential in the interest of the public, is a reasonable restriction
on the right to trade or business, provided it was done under a law or an order
passed by virtue of authority conferred by law and is not arbitrary or capricious. 99
Reasonableness of restriction on trade and commerce and power of the
Government to regulate in public interest has been examined in the light of socio-
economic objectives, for example, under Arts.38 and 39. 100 In examining the
reasonableness of economic legislation and economic policy, more latitude has to
be given to the State.101 There must, however, be a proper balance between
individual freedom to carry on any trade or occupation or business and social
control over it the "in public interest".102
The policy of price control has for its dominant object, equitable distribution and
availability of the commodity at a fair price, so as to benefit the consumers. It is
manifest that individual interest, however, precious they may be must yield to the
larger interest of the community, namely, the consumers. Even if the petitioners
have to bear some loss, there can be no question of the restrictions imposed on
the petitioners being unreasonable.103 In that case, the court said that in regard to
essential commodities like sugar, the question of the economic production and
distribution thereof must enter the verdict of the court in deciding reasonableness
of the restriction. In such cases, the court said that even the margin of profit left to
the producer is slashed, that would not make the restriction unreasonable. In
Lakshmi Khandsari v. State of UP ,1 the Supreme Court was satisfied that the
restriction imposed in stopping the crushers for a small period was in public
interest and bore a reasonable nexus to the object which was sought to be
achieved, namely, to reduce shortage of sugar and ensure a more equitable
distribution of that commodity. In Prag Ice and Oil Mills v. UOI ,2 the court said:
"The dominant purpose of these provisions is to ensure the availability of
essential commodities to the consumer at a fair price. And though patent injustice
to the producer is not to be encouraged, a reasonable return as investment or a
reasonable rate of profit is not the sine qua non of the validity of the act ion taken
in furtherance of the powers conferred by Sections 3(1) and s. 3(2) of the
Essential Commodities Act . The interest of the consumer has to be kept in the
forefront and the prime consideration that an essential commodity ought to be
made available to the common man at a fair price must rank in priority over every
other consideration."
 617

Where the fixation of price of an essential commodity is necessary to protect the

interest of consumers in view of scarcity of supply, such restriction cannot be
challenged as unreasonable on the ground that it would result in the elimination of
middlemen for whom it would be unprofitable to carry on business at fixed rate or
that it does not ensure a reasonable return to a manufacturer or a producer on the
capital employed in the business of manufacturing or producing such an essential
commodity.3
The requirement of a licence from traders engaged in the business of essential
commodities has been a common method of achieving the objects of the
Essential Commodities Act and is not an unreasonable restriction. 4
1. Regulations laying down the conditions of any hours of employment in
shops and commercial establishments, even where no employee is engaged; 5 or
fixing minimum wages in an industry;6 providing for payment of bonus even in a
year of loss;7 or widening the definition of workman or 'employer in relation to
industrial disputes.8
There is a close relationship between the right to carry on trade and the wages
payable to employees in a trade or industry. Too high wages may affect the
economic viability of an industry, but too low wages may amount to exploitation of
human labour. A balance has to be drawn between the two conflicting values. The
court has held that the technique of appointing a wage board considering equally
of the representative of employers and employees with a few neutral members
and a neutral chairman for fixing wages in an industry according to factors laid
down and according to natural justice does not amount to an unreasonable
restriction on the trade and commerce.9
Fixing 'living' or 'fair' wages without taking into consideration the 'capacity to pay'
would amount to an unreasonable restriction on the right under Art. 19(1)(g). 10 In
that case, the Supreme Court explained the difference between minimum wage,
living wage and fair wage.
A law which provides to pay gratuity on completion of three years service was
held an unreasonable restriction under Art. 19(1)(g) read with Art. 19(6); when the
normal rule is to pay the same at the time of retirement or when the employee
voluntarily retires on completion of fifteen years of continuous service. 11
In Jalan Trading Co. v. D.M. Daney ,12 a statutory obligation to pay the statutory
minimum bonus by the employer to the employees, even if the employer
sustained loss, has been held to be reasonable and in public interest, as this is in
implementation of the Directive Principles under Art s. 39 and 43. What is
sanctioned by the Directive Principles cannot be regarded as unreasonable or
contrary to public interest in the context of Art. 19. A State law increasing the
number of compulsory paid national and paid holidays from 9 to 13 during a year
has been held as reasonable in view of Art. 43. 13
1. Subject, a business to regulations such as obtaining a licence, 14 requiring
evidence of good character from a dealer, obtaining security or making him
responsible for any injury resulting to the public from such business; or for the
carrying on of any trade or calling which might cause annoyance to, neighbours, 15
or affect the economic stability of the community, such as the transport or sale 16 of
essential commodities17 or the business of stock exchange.18
1. Impose regulations for public safety, e.g., in the case of public carriers
requiring them to fix and publish their charges periodically; 19 or in the case of
manufacture or possession of dangerous things like explosives, laying down that
they may be manufactured or stocked only under prescribed conditions. 20
18. Impose restrictions on the right to carry on a profession, in the interests of
purity in public life, e.g., that a legal practitioner who is employed on behalf of or
 618

against a Municipality shall not be entitled to stand as a candidate for election as

a Councillor of that Municipality,21 or that a person who has himself been guilty of
a misconduct relating to income-tax shall not be allowed to represent assesses
before the income tax authorities.22
1. For the protection of tribal people, legal practitioners may be debarred from
appearing in proceedings for annulment of transfers of property made by tribal
people in favour of non-tribal people.23
The State Bar Council would be justified in framing a rule prohibiting the entry of a
professional who insisted on carrying on other profession simultaneously with the
legal profession. Legal profession requires full time attention and would not
countenance an advocate riding two horses or more at a time. 24 The Legislature is
entitled to make a law relating to professional or technical qualification necessary
for carrying on that profession. Limited restrictions on appearance of advocates
before specialised or specific tribunal are neither violative of fundamental rights
nor they amount to denial of equality under Art. 14.25
1. Impose restrictions upon the right to enter into a market for the purpose of
selling or buying such commodities as are vendible in the market, with the object
of eliminating middleman and giving reasonable facilities for the vendors to
secure best prices for their commodities;26 prescribe regulations for preserving
cleanliness of market places, e.g., requiring particular articles to be sold only at
particular places within the market or during specified hours, 27 standardisation of
weights and measures for protecting consumers.28
1. Restrictions imposed upon cane-growers not to sell sugarcane to occupiers
of factories, except through a Cane-growers' Co-operative Society, where the
membership of such Society is not less than 75 per cent of the total cane-growers
within an area.29
1. In order to protect rickshaw-pullers from exploitation, to prohibit rickshaw-
owners from hiring out their rickshaws.30

In the case of a private individual, who is doing a business involving public interest,
the same can be subjected to reasonable regulation. A private property owner who puts
up a cinema theatre, submits himself to regulations for common good and public
acquires, a direct and positive interest in exhibition of films. In such cases, State can
impose restriction on the rates for admission and the owner is not free to fix his own
rates.31 The State has also power to regulate the number of shows in a day. 32
However, a condition in a cinema licence that the "licensee shall exhibit at such
performance, one or more approved films of such length and for such length of time as
the Provincial Government or Central Government may, by general or special order
direct" was held to be unconstitutional since it violates Art. 19(1)(g) read with Art. 19(6). 33
Court said: "A condition couched in such wide language is bound to operate hardship
upon the cinema business and cannot be regarded as a reasonable restriction. It
savours more of the nature of an imposition than a restriction. It is significant that the
condition does not profess to pay down that the approved film must be of an educational
or instructional character for the purpose of social or public welfare". The Court
concluded that the condition imposed was unconstitutional and void.
Prohibition on transfer of granted land under the Karnataka Scheduled Castes and
Scheduled Tribes (Prohibition of Transfer of Certain Land) is not violative of Art. 19. The
Court said that the restriction imposed on a grant at the very time of the conferment of
the grant and only for a specified period for the benefit of the grantee is reasonable. A
defeasible right in accordance with the law cannot attract violation of Art. 19, if the right
is defeasible according to law.34
 619

The general principle is that the power conferred on the executive by a law to regulate
trade or commerce should not be arbitrary, "unregulated" by any rule or principle. A law
or order which confers arbitrary power on the executive in the matter of regulating trade
or business is regarded as unreasonable.35
In Chintaman Rao v. State of MP ,36 the court said: "The phrase 'reasonable restriction'
connotes that the limitation imposed on a person in enjoyment of the right should not be
arbitrary or of an excessive nature beyond what is required in the interest of public. The
word "reasonable" implies intelligent care and deliberation, that is, the choice of a course
which reason dictated. Legislation which arbitrarily or excessively invades the right
cannot be said to contain the quality of reasonableness and unless it strikes a proper
balance between the freedom guaranteed in Art. 19(1)(g) and the social control
permitted by clause (6) of Art. 19, it must be held wanting in that quality."
19.  The Constitution of India rejects the American test of 'clothed with public
interest' in Cl. (6) of Art. 19. Any business or trade, irrespective of its nature is liable to
be controlled or restricted by the State, if it is necessary in the interests of the general
public, such as public order, morality, health or the like, provided such restrictions are not
unreasonable.37

1 Ramchand v. Union of India, AIR 1963 SC 563 (566) : (1962) 3 SCR 72.

2 Commercial & Ahmedabad Mills v. Union of India, AIR 1993 Guj 20.

3 R.C. Cooper v. UOI, AIR 1970 SC 564 : (1970) 1 SCC 248 : (1970) 3 SCR 530 (supra).

4 AIR 1952 SC 115 : (1952) SCR 572.

5 LIC of India v. Consumer Education & Research Centre, AIR 1995 SC 1811 : (1995) 5 SCC 482.

6 Orissa Textile & Steel Ltd. v. State of Orissa, AIR 2002 SC 708 : (2002) 2 SCC 578.

7 Peerless General Finance & Investment Co. Ltd. v. RBI, AIR 1992 SC 1033 : (1992) 3 SCC 343; Bhavesh D. Parish
v. UOI, AIR 2000 SC 2047 : (2000) 5 SCC 471; Papanasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200 :
(1995) 1 SCC 501). See alsoT. Velayludhan Achari v. UOI, (1993) 2 SCC 582.

8 Mohd. Murtaza v. State of Assam, (2011) 12 SCC 413 : (2011) 5 LW 332.

9 N.K. Bajpai v. UOI, AIR 2012 SC 1310 : (2012) 4 SCC 653; Similar view was held in Brij Mohan Lal v. UOI, (2012) 6
SCC 502 : (2012) 4 SCALE 450.

10 Ayurvedic Enlisted Doctors' Assn. v. State of Maharashtra, (2009) 16 SCC 170 : (2009) 3 SCALE 912.

11 SeeSouthern Technologies Ltd. v. CIT, (2010) 2 SCC 548; Bhavesh D. Parish v. UOI, AIR 2000 SC 2047 : (2000) 5
SCC 471 (supra); Barclays Merchantile Business & Finance Ltd. v. Mawson (Inspector of Taxes), (2005) 1 All ER 97 :
(2005) 1 AC 684 : (2004) 3 WLR 1383 relied on in the Southern Technologies case.

12 State of Maharashtra v. Indian Hotel & Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519.

13 Nagar Rice Milling v. Teekappa, AIR 1971 SC 246 : (1970) 1 SCC 575 (para. 10).

14 Golak Nath v. State of Punjab, AIR 1967 SC 1643 : (1967) 2 SCR 762.

15 State of Orissa v. Radheyshyam Meher, AIR 1995 SC 855 : (1995) 1 SCC 652; Krishnan Kakkanath v. Govt. of
Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495.

16 J.K. Industries Ltd. v. Chief Inspector of Factories, (1996) 6 SCC 665 : JT 1996 (9) SC 27 : (1997) 1 LLJ 722.

17 Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai, AIR 1986 SC 1205 : (1986) 3 SCC
20.

18 AIR 1973 SC 734 : (1973) 2 SCR 882.

19 See alsoUnichoyi v. State of Kerala, AIR 1962 SC 12 : (1962) 1 SCR 946.

 620

20 Krishnan Kakkanath v. Govt. of Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495.

21 SeeSivani v. State of Maharashtra, AIR 1995 SC 1770 : (1995) 6 SCC 289.

22 State of Maharashtra v. Indian Hotel & Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519.

23 S. Bhgavathi v. State of Tamil Nadu, (2007) 2 MLJ 526(FB) : AIR 2007 (NOC) 1147(Mad) -- the decision of Bombay
High Court in Vijay C. Puljal v. State of Maharashtra, (2005) 2 CTC 705(Bom) was distinguished.

24 Ram Jawaya v. State of Punjab, (1955) 2 SCR 225 (240-I) : AIR 1955 SC 549; Harnam Singh v. R.T.A., 1954 SCR
371 : AIR 1954 SC 190.

25 Nagar Rice Milling v. Teekappa, AIR 1971 SC 246 : (1970) 1 SCC 575 (para. 10).

26 Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574, affirmed inKhoday Distilleries Ltd. v. Registrar
General, Supreme Court of India, (1996) 3 SCC 114.

27 Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 : (1986) 3 SCC 615. See alsoKharak Singh v. State of U.P.,
AIR 1963 SC 1295 : (1964) 1 SCR 332. See alsoUOI v. Col. L.S.N. Murthy, (2012) 1 SCC 718; ONGC Ltd. v. Saw
Pipes Ltd., (2003) 5 SCC 705.

28 SeeState of MP v. Mandawar, AIR 1954 SC 493 : (1955) 1 SCR 255.

29 Dalmia v. Justice Tendolkar, AIR 1958 SC 538 : (1959) SCR 279.

30 Madhubhai Amathalal Gandhi v. UOI, AIR 1961 SC 21 : (1961) 1 SCR 191.

31 Pannalal Binjraj v. UOI, AIR 1957 SC 397 : (1957) SCR 233.

32 Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 (Supp-1) SCR 439; Punit Rai v. Dinesh Chandari, AIR 2003 SC
4355 : (2003) 8 SCC 204.

33 Sat Ram v. Labh Singh, AIR 1965 SC 314 : (1964) 7 SCR 756.

34 Tahir v. District Board, AIR 1954 SC 630.

35 Hirendra Nath Bakshi v. LIC, AIR 1976 Cal 88.

36 State of Bihar v. Project Uchcha Vidya Sikshak Sangh, (2006) 2 SCC 545; State of Bihar v. Oswal Chemicals and
Fertilisers Ltd., AIR 2001 Pat 184. See alsoState of UP v. Rakesh Kumar Keshari, AIR 2011 SC 1705 : (2011) 5 SCC
341; State of UP v. Hirendra Pal Singh, (2011) 5 SCC 305.

37 Raja Ram Pal v. Han'ble Speaker, Lok Sabha, (2007) 3 SCC 184 : JT (2007) 2 SC 1.

38 N.B. Khare (Dr.) v. State of Delhi, AIR 1950 SC 211 : (1950) SCR 519.

39 Union of India v. Elphinstone Spgs. And Wvg. Co. Ltd., AIR 2001 SC 724 : (2001) 4 SCC 139.

40 Yasin v. Town Area Committee, (1952) SCR 572 : AIR 1952 SC 115.

41 Yasin v. Town Area Committee, (1952) SCR 572 : AIR 1952 SC 115.

42 State of Kerala v. Jospeh, AIR 1958 SC 296 : 1958 SCJ 614.

43 State of Kerala v. Jospeh, AIR 1958 SC 296 : 1958 SCJ 614.

44 Narendra v. Union of India, AIR 1960 SC 430 : (1960) 2 SCR 375. See alsoAssn. of Management of Private
Colleges v. AICTE, AIR 2013 SC 2310 : (2013) 8 SCC 271; Babu Vargheese v. Bar Council of Kerala, (1999) 3 SCC
422 : AIR 1999 SC 1281; K.T. Plantations (P) Ltd. v. State of Karnataka, (2011) 9 SCC 146.

45 State of Kerala v. Jospeh, AIR 1958 SC 296 : 1958 SCJ 614.

46 Narendra v. Union of India, AIR 1960 SC 430 : (1960) 2 SCR 375. See alsoAssn. of Management of Private
Colleges v. AICTE, AIR 2013 SC 2310 : (2013) 8 SCC 271; Babu Vargheese v. Bar Council of Kerala, (1999) 3 SCC
422 : AIR 1999 SC 1281; K.T. Plantations (P) Ltd. v. State of Karnataka, (2011) 9 SCC 146.

47 Himmatlal Harilal Mehta v. State of M.P., AIR 1954 SC 403 : 1954 SCR 1122.

48 Harishankar v. State of M.P., AIR 1954 SC 465 : (1955) 1 SCR 380.

 621

49 Oudh Sugar Mills v. Union of India, AIR 1970 SC 1070.

50 Lachman Dass v. State of Punjab, AIR 1963 SC 222 (234) : (1963) 2 SCR 353.

51 Glass Chatons Assocn. v. Union of India, AIR 1961 SC 1514 (1516) : (1962) 1 SCR 862.

52 Viklad Coal Merchant v. Union of India, AIR 1984 SC 95 : (1984) 1 SCC 619.

53 Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578: (1959) SCR 12.

54 Sukhanandan Saran Dinesh Kumar v. UOI, AIR 1982 SC 902 : (1982) 2 SCC 150.

55 AIR 1953 SC 549 : (1955) 2 SCR 225.

56 Krishnan Kakkanath v. Govt. of Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495.

57 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 (Supp. 2) SCR 691.

58 Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106 : (1972) 2 SCC 788. See alsoManeka Gandhi v. Union
of India, (AIR 1978 SC 597 : (1978) 1 SCC 248; O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 : 1963 (Supp-1) SCR
789; Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980) 2 SCC 684, Hamdard Dawakhana v. Union of India,
AIR 1960 SC 554 : (1960) 2 SCR 671; Municiplal Corpn. of City of Ahmedabad v. Jan Mohammed Usmambhai, AIR
1986 SC 1205 : (1986) 3 SCC 20.

59 Nagar Rice Milling v. Teekappa, AIR 1971 SC 246 : (1970) 1 SCC 575 (para. 10). See alsoP.P. Enterprises v. Union
of India, AIR 1982 SC 1016 : (1982) 2 SCC 33.

60 UOI v. Rafique Shaikh Bhakan, (2012) 6 SCC 265 : AIR 2012 SC 2453.

61 (2003) 8 SCC 437.

62 See alsoParbhani Transport Co-op. Society Ltd. v. RTA, AIR 1960 SC 801 : (1960) 3 SCR 177; Shree Meenakshi
Mills Ltd. v. UOI, AIR 1974 SC 366 : (1974) 1 SCC 468; Harichand Sardo v. Mizo District Council, AIR 1967 SC 829 :
(1967) 1 SCR 1012; Krishnan Kakkanath v. Govt. of Kerala (supra).

63 Ibrahim v. R.T.A., AIR 1953 SC 79 : 1959 SCR 290.

64 State of Maharashtra v. Himmatbhai, AIR 1970 SC 1157 : (1969) 2 SCR 392.

65 State of Assam v. Sristikar, AIR 1957 SC 414 : 1957 SCR 295.

66 Glass Chatons v. Union of India, 1961 SC 1514 : (1962) 1 SCR 862.

67 Union of India v. Bhanmal, (1960) 2 SCR 627 : AIR 1960 SC 475.

68 Sakhawant Ali v. State of Orissa, AIR 1955 SC 166 : (1955) 1 SCR 1004.

69 Fedco v. Bilgrami, AIR 1960 SC 415 : (1960) 2 SCR 408.

70 Jan Md., Noor Mohmmad Begum v. State of Gujarat, (1966) 1 SCR 505 (515) : AIR 1966 SC 385.

71 Ramdhandas v. State of Punjab, AIR 1961 SC 1559 : (1962) 1 SCR 852; Manoharlal v. State, 1951 SCR 671 : AIR
1951 SC 315.

72 Man Singh v. State of Punjab, (1985) 4 SCC 146 : AIR 1985 SC 1735; All Delhi Cycle Rickshaw Operators Union v.
M.C. Delhi, (1987) 1 UJSC 496 : AIR 1987 SC 648.

73 P.P. Enterprises v. Union of India, AIR 1982 SC 1016 : (1982) 2 SCC 33 (para s. 6, 9).

74 Municipal Corpn. v. Jan Md., AIR 1986 SC 1205 : (1986) 3 SCC 20 (paras. 19-20).

75 Narendra Kumar v. UOI, AIR 1960 SC 430 : (1960) 2 SCR 375; K.T. Moopil Nair v. State of Kerala, AIR 1961 SC
552 : (1961) 3 SCR 77; Jagannath v. UOI, AIR 1962 SC 148 : (1962) 2 SCR 118.

76 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248.

77 Ramlila Maidan Incident, In re., (2012) 5 SCC 1 : (2012) 2 SCALE 682.

 622

78 Municipal Corpn. of the City of Ahmedabad v. Jan Mohammed Usmanbhai, AIR 1986 SC 1205 : (1986) 3 SCC 20.

79 Cooverjee v. Excise Commr., 1954 SCR 873 : AIR 1954 SC 217.

80 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (566) : (1960) 2 SCR 671.

81 Malarkosla v. Mushtaq, AIR 1960 Punj 18.

82 Goodwill Paint and Chemical Laboratory v. Union of India, AIR 1991 SC 2150 : 1992 (Supp-1) SCC 16. See also
Manohar Lal v. State of Punjab, AIR 1961 SC 418 : (1961) 2 SCR 343.

83 Cf. the Indian Factories Act (LXIII) of 1948; Manohar v. State, (1951) S.C.R. 671 (675) : AIR 1951 SC 315.
SeeRamdhandas v. State of Punjab, AIR 1961 SC 1559 : (1962) 1 SCR 852.

84 Bijay Cotton Mills v. State of Ajmer, (1955) 1 SCR 752 : AIR 1955 SC 33.

85 Hathisingh Mfg. Co. v. Union of India, (1960) 3 SCR 528 (537) : AIR 1960 SC 923.

86 Express Newspapers v. Union of India, AIR 1958 SC 578 (622) : 1959 SCR 12.

87 Basti Sugar Mills v. Ram Ujagar , (1963) SC [CA 225 63].

88 Orissa Cement Co. v. Union of India, AIR 1962 SC 1402 : 1962 Supp (3) SCR 837.

89 Saghir Ahmad v. State of. U.P., (1955) 1. SCR 707 : AIR 1954 SC 747.

90 Ramchand v. Union of India, AIR 1963 SC 563 (566) : (1962) 3 SCR 72, Krishna v. State of Rajasthan, AIR 1982 SC
29 : (1981) 4 SCC 550 (para. 5).

91 Bhatnagars v. Union of India, (1957) SCR 701 (711) : AIR 1957 SC 478.

92 Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124 (1134) : (1960) 1 SCR 39.

93 Rajasthan v. Nathomal, (1954) SCR 892 : AIR 1954 SC 210.

94 Dwarka Prasad v. State of U.P., AIR 1954 SC 224 : 1954 SCR 803; Narendra v. Union of India, (1960) 2 SCR 375 :
AIR 1960 SC 430; Meenakshi Mills v. Union of India, AIR 1974 SC 366 : (1974) 1 SCC 468 (paras, 69, 86).

95 Union of India v. Bhanmal Gulzari Mal, AIR 1960 SC 475 : (1960) 2 SCR 627.

96 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (566) : (1960) 2 SCR 671.

97 Suraj v. Union of India, AIR 1982 SC 130 : (1981) 4 SCC 554 (para. 4); Bishamber v. State of U.P., AIR 1982 SC
33 : (1982) 1 SCC 39 (para s. 48-49); P.P. Enterprises v. Union of India, AIR 1982 SC 1016 : (1982) 2 SCC 33 (para s.
6, 9); Krishan v. State of Rajasthan, AIR 1982 SC 29 : (1981) 4 SCC 550 (para. 6).

98 Suraj v. Union of India, AIR 1982 SC 130 : (1981) 4 SCC 554 (para. 4); Bishamber v. State of U.P., AIR 1982 SC
33 : (1982) 1 SCC 39 (para s. 48-49); P.P. Enterprises v. Union of India, AIR 1982 SC 1016 : (1982) 2 SCC 33 (para s.
6, 9); Krishan v. State of Rajasthan, AIR 1982 SC 29 : (1981) 4 SCC 550 (para. 6).

99 ONGC v. Assn. of Natural Gas Consuming Industries in Gujarat, AIR 1990 SC 1851 : 1990 (Supp) SCC 397.

100 Dalmia Cements (Bharat) Ltd. v. UOI, (1996) 10 SCC 104 : (1996) 4 JT (SC) 555.

101 SIEL Ltd. v. UOI, AIR 1998 SC 3076 : (1998) 7 SCC 26; Sasadhar Chakravarthy v. UOI, AIR 1997 SC 336 : (1996)
11 SCC 1; Peerless General Finance & Investment Co. Ltd., (1996) 1 SCC 642.

102 J.K. Industries Ltd. v. Chief Inspector of Factories and Boilers, (1996) 6 SCC 665.

103 New India Sugar Works v. State of UP, AIR 1981 SC 998: (1981) 2 SCC 293.

1 AIR 1981 SC 873 : (1981) 2 SCC 600.

2 AIR 1978 SC 1296 : (1978) 3 SCC 459 : (1978) 3 SCR 293.

3 Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019 : (1983) 4 SCC 45.

4 D.S. & G. Mills (P.) Ltd. v. UOI, AIR 1959 SC 626 : 1959 (Supp-2) SCR 123; see alsoDwaraka Prasad Laxmi Narain
v. State of UP, AIR 1954 SC 224 : (1954) SCR 803.
 623

5 Ramdhandas v. State of Punjab, AIR 1961 SC 1559 : (1962) 1 SCR 852; Manoharlal v. State, (1951) SCR 671 : AIR
1951 SC 315.

6 Bijay Cotton Mills v. State of Ajmer, (1955) 1 SCR 752 : AIR 1955 SC 33.

7 Ramdhandas v. State of Punjab, AIR 1961 SC 1559 : (1962) 1 SCR 852; Manoharlal v. State, (1951) SCR 671 : AIR
1951 SC 315. See also Jalan Trading Co. v. D.M. Daney, AIR 1979 SC 233 : (1979) 3 SCC 220.

8 Basti Sugar Mills v. Ram Ujagar , (1963) SC [CA 225 63].

9 Express Newspapers v. UOI, AIR 1958 SC 578 : (1959) SCR 12.

10 SeePTI v. UOI, AIR 1974 SC 1044 : (1974) 4 SCC 638; U. Unichayi v. State of Kerala, AIR 1962 SC 12 : (1962) 1
SCR 946.

11 Express Newspapers v. UOI, AIR 1958 SC 578 : (1959) SCR 12 (supra). But seeBritish Paints (India) Ltd. v. Its
Workmen, AIR 1966 SC 732 : (1966) 2 SCR 523.

12 AIR 1979 SC 233 : (1979) 3 SCC 220.

13 MRF Ltd. v. Inspector, Kerala Govt., AIR 1999 SC 188 : (1998) 8 SCC 227.

14 Madhubhai v. Union of India, AIR 1961 SC 21 (26) : (1961) 1 SCR 191.

15 Cooley, Constitutional Law, p. 384.

16 Dwarkaprasad v. State of U.P., AIR 1954 SC 224 : 1954 SCR 803; Narendra v. Union of India, (1960) 2 SCR 375 :
AIR 1960 SC 430; Meenakshi Mills v. Union of India, AIR 1974 SC 366 : (1974) 1 SCC 345 (paras, 69, 86).

17 Harishankar v. State of M.P., (1955) 1 SCR 380 : AIR 1954 SC 465.

18 Chandrasekhara v. Commr. of I.T., AIR 1951 Mad 897.

19 Cooley, Constitutional Law, p. 384.

20 Sundara, in re, AIR 1953 Mad 142.

21 Sakhawant v. State of Orissa, AIR 1955 SC 166 : (1955) 1 SCR 991.

22 Sant Ram, in re, (1960) 3 SCR 499 (506).

23 Lingappa v. State of Maharashtra, AIR 1985 SC 389 : (1985) 1 SCC 479.

24 Haniraj L. Chulani v. Bar Council of Maharashtra, AIR 1996 SC 1708 : (1996) 3 SCC 342.

25 N.K. Bajpai v. UOI, AIR 2012 SC 1310 : (2012) 4 SCC 653; Brij Mohan Lal v. UOI, (2012) 6 SCC 502 : (2012) 4
SCALE 450.

26 Arunachala v. State of Madras, AIR 1959 SC 300 : 1959 Supp (1) SCR 92; alsoTika Ramji v. State of U.P., (1956)
SCR 393 (448) : AIR 1956 SC 676.

27 Nagpur K. K. Samaj v. Nagpur Corpn., AIR 1959 Bom 112 (121).

28 T.T. Ltd. v. Union of India, AIR 1991 Kant 79 (para. 11) (Kant).

29 Tika Ramji v. State of U.P., (1955) 1 SCR 393 (448) : AIR 1954 SC 364.

30 Mansingh v. State of Punjab, (1985) 4 SCC 146; All Delhi Cycle Rickshaw Operators' Union v. M.C. Delhi, 1987 1
UJSC 496 : AIR 1987 SC 648.

31 Deepak Theatre v. State of Punjab, AIR 1992 SC 1519 : 1992 (Supp-1) SCC 684.

32 Minerva Talkies v. State of Karnataka, AIR 1988 SC 526 : 1988 (Supp) SCC 176.

33 P.M. Sheshadri v. Dt. Magistrate, Tanjore, AIR 1954 SC 747 : (1955) SCR 686.

34 Manchegowda v. State of Karnataka, AIR 1984 SC 1151: (1984) 3 SCC 301.

 624

35 Pratap Singh v. State of Punjab, AIR 1975 P & H 323; Dwaraka Prasad Laxmi Narain v. State of UP, AIR 1954 SC
224 : (1954) SCR 803.

36 AIR 1951 SC 118 : (1950) SCR 759 (supra).

37 Chintamanrao v. State of M.P., (1950) SCR 759 : AIR 1951 SC 118. See alsoState of Maharashtra v. Indian Hotel &
Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519.
625
 626

DD Basu Commentary on the Constitution of India, Vol 1-4, 9e 2015/Volume 4/PART III FUNDAMENTAL
RIGHTS/Article 19 (Contd.) 4 of 4

Reasonableness of restrictions
As Cl. (6) states, restrictions imposed in the interests of the general public must be 'reasonable'. The
conditions of reasonableness, in relation to the freedom of business, may now be dealt with under the
heads of substantive and procedural reasonableness.
(I) SUBSTANTIVE REASONABLENESS

25.  The phrase 'reasonable restriction' connotes that the limitation imposed on a
person in enjoyment of the right should not be arbitrary or of an excessive nature,
beyond what is required in the interests of the public.38
A citizen of India has the right to carry on a profession or business as envisaged under
Art. 19(1)(g) of the Indian Constitution. Any restriction imposed thereupon, made by
reason of a law contemplated under Art. 19(6). In the absence of any valid law operating
in the field, no penalty can be imposed on the alleged violation of law when the same
was not in force, but, a law introduced later, with prospective effect. 39
The first test is the test of reasonableness which is common to all clauses under Art.
19(1) and the second test is to ask for the answer to the question whether, the restriction
sought to be imposed on the fundamental right, falls within clauses (2) to (6) respectively
qua sub-clauses (a) to (g) of Art. 19. The court confronted with a challenge to the
constitutional validity of any legislative enactment by reference to Art. 19 of the
Constitution, shall first ask what is the sweep of the fundamental right guaranteed by the
relevant sub-clauses out of the sub-clauses (a) to (g) of clause (1). If the right
canvassed, falls within the sweep and expanse of any of the sub-clauses of clause (1),
then the next question to be asked would be whether the impugned law imposes a
reasonable restriction falling within the scope of clauses (2) to (6) of Art. 19 respectively.
However, if the right sought to be canvassed does not fall within the sweep of the
fundamental rights, but is a mere concomitant or adjunct or expansion or incidence of
that right, then the validity thereof is not to be tested by reference to clauses (2) to (6).
The test which it would be required to satisfy for its constitutionality is one of
reasonableness.
(1) Whether the right claimed is a fundamental right, (2) whether the restriction is one
contemplated by way of clauses (2) to (6) of Art. 19 and (3) whether the restriction is
reasonable or unreasonable, are all questions which shall have to be decided by
keeping in view the substance of the legislation and not by being beguiled by the mere
appearance of the legislation.40
The term, "reasonable restriction" as used in Art. 19(6) defines definition. It is a highly
flexible and relative term which draws its colour from the context. One of the sources to
understand it is natural law and in the sense of ideal, just, fair, moral, conscionable in the
facts and circumstances brought before the court.41
The reasonable restriction can be imposed by law. Law for the purpose of imposing
reasonable restriction must be law one enacted by Legislature. A circular or policy
decision is not law for the purpose of Art. 19(6) and no restriction on exercise of freedom
under Art. 19(1)(g) can be imposed by such circular or policy decision. 42
27I.  The reasonableness of the restriction is to be adjudged not in the
background of theoretical standards or predetermined patterns. 43 In order to determine
the reasonableness of the restriction, regard must be had to the nature44 of the business
and the conditions prevailing in that trade, and the interest of the general public sought
to be secured by imposing the restriction.45 The court must take into account factors like
 627

nature of the right enshrined, underlying purpose of the restriction imposed, evil sought
to be remedied by the law, its extent and urgency, how far the restriction is or is not
proportionate to the evil and the prevailing conditions at that time. The nature of
business and its indelible effect on public interest are important elements in deciding the
reasonableness of the restriction. Trade or business attended with danger to the
community can be totally prohibited or permitted and subject to such conditions or
restrictions as would prevent the evils to the utmost. 46While considering the
reasonableness, an evaluation of the impugned law as to how far its direct impact upon
the fundamental right of the citizen is affected thereby and the larger public interest
sought to be ensured in the light of the object sought to be achieved, the necessity to
restrict the citizen's freedom, the inherent pernicious nature of the act prohibited, or its
capacity or tendency to be harmful to the general public, the possibility of achieving the
object by imposing less drastic restraint and in the absence of exceptional situations
such as the prevalence of state of emergency, national or local - the necessity to stop
activities inherently dangerous, the existence of a machinery to satisfy the administrative
authority that no case for imposing the restriction is made out or that a less drastic
restriction may ensure the object intended to be achieved. 47 The right of every citizen to
pursue any lawful trade or business is obviously subject to such reasonable conditions
as may be deemed by the governing authority of the country essential to the safety,
health, peace order and morals of the community.48 Some occupations by the noise
made in their pursuit, some by the odours they engender and some by the dangers
accompanying them require regulations as to the locality in which they may be
conducted. Some, by the dangerous character of the articles used, manufactured or
sold, require also special qualifications of the parties permitted to use, manufacture or
sell them.49 Thus,--
19. In respect of the commodities essential to the community, it is reasonable to
have restrictions which may, in certain circumstances, extend to total prohibition
for a time, of all normal trading in that commodity. 50 A temporary legislation to
control production, supply and distribution of essential commodities during a
period of emergency, cannot be said to be, unreasonable. 51
In cases relating to essential commodities, their availability, fair price, equitable
distribution, etc. the consumer's interest has been the determining and decisive
factors with the courts. The Courts have invariably upheld the impugned law and
control order as reasonable restrictions and in the interest of the public. In some
cases, the restrictions amounting to prohibition also have been upheld. Where,
however, a law leaves absolute discretion with the officials and provides no
safeguard against the arbitrary exercise of power of imposing restrictions, such a
law has been held to be void. Even if the petitioner had to suffer a loss over a
short period of time, as a result of the order, that would not render the order
constitutionally invalid since, the interest of the consumer has to be kept in the
forefront and the prime consideration that essential commodity ought to be made
available to the common mass at a fair price must rank in priority over every other
consideration.52
In State of Rajasthan v. Nath Mal ,53 court upheld the freezing of stocks of
foodgrains under clause 25 of the Rajasthan Foodgrains Control Order, 1949 as
reasonably related to the object of the Essential Commodities Act intended to
achieve, namely, to secure the equitable distribution, disposal and acquisition of
an essential commodity such as foodgrains. Court however struck down that part
of clause 25 which permitted the Government requisition of stocks or their
disposal at any rate in its discretion. This obviously vested unrestrained authority
and placed an unreasonable restriction upon carrying on of trade or business and
infringed fundamental right of the dealers under Art. 19(1)(g). In M/s. DS & G Mills
v. UOI ,54 Central Government's notification fixing the sugar prices was upheld.
 628

A rule banning all hedging contracts in cotton except those permitted by the
Textile Commissioner and further authorising him to place such restrictions as he
thought fit on such contracts was held valid since cotton was an essential
commodity and even if the same amounts to a prohibition for a time. 55 Limiting the
stock that could be possessed by a dealer of essential commodity to prevent
black-marketing and hoarding was held reasonable.56
For ensuring equitable distribution of commodities considered essential to the
community and their availability as fair prices, it is quite a reasonable thing to
regulate the sale of such commodities through licensed vendors to whom quotas
are allotted in specified quantities and who are not permitted to sell them beyond
the prices that are fixed by the controlling authorities. A notification under the
Essential Commodities Act imposed a levy on sugar manufacturers, which
provided that fifty per cent of their production should be handed over to the
Government at a fixed price and the remaining fifty per cent they were allowed to
sell in free market. When challenged, it was held that the interest of consumers
must prevail over that of manufacturers. The dominant policy of price control is to
ensure equitable distribution and make the commodity available at fair price for
the benefit of the consumers. Individual interest must yield to the larger interest of
the community. Even if the manufacturer or producers have to bear any loss, that
would not make the restriction unreasonable.57
The Courts do not insist on any procedural safeguard in this area. Price fixing is
regarded more in the nature of legislative power than an administrative power and
consequently, the rules of natural justice are not required to be complied with. 58
Even if the principles of natural justice are not applied, the criteria applied must be
reasonable. Reasonableness, for the purpose of judging whether there was an
"excess of power" or "arbitrary" exercise of it, is really the demonstration of a
reasonable nexus between matters which are taken into account in exercising a
power and purpose of exercise of power. 59
Fixing of higher price sugarcane compulsorily payable, is a restriction on the
fundamental right guaranteed under Art. 19(1)(g) and cannot be legally done
except under a law, the sugar factories cannot be compelled or coerced to pay
the price by taking any steps not sanctioned by law. 60
In Shree Meenakshi Mills case (supra),61 the Supreme Court took a different view
from that enumerated in Premier Automobiles Ltd. v. UOI .62 In Premier
Automobiles' case, the Court considered the concept of fair price under s. 18G of
the Industries (Development and Regulation) Act, 1951 in relation to the fixing of
car prices. The Court said that, "it takes in all the elements which make it fair for
the consumer, leaving a reasonable margin of profit to the manufacturer without
which no one will engage in any manufacturing activity." The Court also directed
the Government to review the car price at every six months interval.
The Supreme Court has not interfered in orders fixing prices except in Premier
Automobiles' case. In Meenakshi Mills' case, the Court said: "The question of fair
price to the consumer, with reference to the dominant object and purpose of the
legislation, claiming equitable distribution and availability at a fair price is
completely lost sight of, if profit and producers' return are kept in the forefront. In
determining the reasonableness of a restriction imposed by law in the field of
industry, trade or commerce, it has to be remembered that the mere fact that
some of those who are engaged in these are alleging loss after the imposition of
law will not render the law unreasonable. By its very nature, industry or trade or
commerce goes through periods of prosperity and adversity on account of
economic and sometimes social and political factors. In a largely free economy,
when controls have to be introduced to ensure availability of consumer goods like
foodstuff, cloth and the like at a fair price it is an impracticable proposition to
 629

require Government to go through the exercise like that of a Commission to fix

prices". Learned author M.P. JAIN in his book on Indian Constitutional Law63 says:
"The fact in Premier Automobiles, the court showed some consideration for the
interest of manufacturers may be because a car is not an essential commodity".
Commenting on the approach of the Supreme Court in cases relating to fixation of
price, the learned author M.P. JAIN in his book Indian Constitutional Law says: "In
Chintaman Rao's case,64 the Supreme Court has emphasisd that a reasonable
restriction is one which is not in excess of the requirement of the case. This test
involves a drawing of balance between, and a relative evaluation of the interest of
the individual and the exigencies of public control. In the judicial evaluation
process of the restriction under Art. 19(6), however, this approach has been by
and large ignored. The consideration whether in a given situation the restriction
imposed is in excess of the needs of social control has been rather absent in
judicial pronouncements".
If the power of licensing, in respect of a normally available commodity,65 is left to
the absolute discretion of an executive authority without any standard or check to
guide or control that discretion, the law would be unreasonable, because it
subjects the freedom of trade or business to the unfettered discretion of an
executive officer and fails to strike a proper balance between the freedom
guaranteed by Art. 19(1)(g) and the social control permitted by Cl. (6) of that
Article.66
1. Clause 2(3) of the U.P. Control Order, 1953 gave absolute power to
the State Coal Controller to grant, refuse or revoke a licence. The only
things he was required to do was to record reasons for his order; but there
was no provision for appeal or review. The State Controller had also the
power to delegate his powers to any person he liked, The State Controller
was also given an unrestricted power to make exemptions from the
provisions of the above clause in favour of any person or class of persons,
without indicating what the grounds for exemptions are. Held, that each of
the aforesaid features of the impugned clause constituted an
'unreasonable' restriction upon the right guaranteed by Art. 19(1)(g), and
the impugned clause was, accordingly, void.67
31.
18. Regulation or control of a business may also be justified by its impact, on
the national economy, e.g., contracts for the purchase and sale of securities in a
stock exchange68 and the membership of stock exchanges,69 in order to save the
country from the evils of speculation and gambling; the manufacture and export of
exportable commodities for the purpose of gaining a favourable foreign
exchange.70
13. A restriction imposed by a law cannot be said to be unreasonable when
countervailing advantages are conferred upon the persons affected by the same
legislative scheme.71
8. The mere fact that the regulation of a trade would cause hardship to 72 or
result in the elimination of, a section of traders would not make the regulation
unreasonable, for, control or regulation of any kind is bound to cause hardship to
those who are unable to satisfy the requirements of the regulatory rules or
provisions.73 Imposing a ceiling on the prices of these commodities and on the
quantity that can be held are permissible eventhough this may result in some of
the parties incurring loss after imposition of these restrictions. 74
It was held that the interest of producers or manufacturers of an essential
commodity is no doubt a factor to be taken into consideration, but surely, it is of
much lesser importance and must yield to the interest of general public who are
the consumers.75 In Welcome Hotel v. State of AP ,76 the court said: "No price
 630

fixation order need guarantee profit to an establishment in respect of each unit of

article served or sold. It is the overall picture in trade and commerce that needs to
be examined". It would be for the Legislature or its delegate to decide what test
would meet the requirements of the public interest and what method would be
most expedient in controlling the industry for the national good. 77 In Prag Ice and
Oil Mills v. UOI ,78 the court said: "In the ultimate analysis the mechanics of price
fixation has necessarily to be left to the judgment of the executive and unless it is
patent that there is hostile discrimination against a class of operators, the
processual basis of price fixation has to be accepted in the generality of cases as
valid."
A notification under the Essential Commodities Act imposed a levy on sugar
manufacturers. They were required to handover to the Government 50% of their
production at a fixed price and the producer could sell the balance 50% in free
market. The notification was challenged on the ground that price of levy sugar
was not sufficient to cover their manufacturing cost. The Court rejected the
argument on the following grounds: (1) Interest of consumers must prevail over
that of manufacturer. The dominant object of price control policy was to ensure
equitable distribution and make the commodity available at fair price so as to
benefit the consumers. Thus, the individual interest must yield to the larger
interest of the community. (2) Even if the petitioner had to bear some loss, that
would make the restraint unreasonable.79 The determining factor was the interest
of consumer and not that of producer. (3) Since the petitioner could sell 50% of
their products in open market, the loss, if any, would be minimal. 80
2. Rules made under the Coir Industry Act , 1953 provided that only
persons who had exported, in the preceding three years, not less than a
prescribed minimum quantity of coir yarn or coir products would be
registered as exporters of coir yarn or coir products. It was contented that
the qualitative test would extinguish the small traders and tend to establish
a monopoly in the export trade. Held, that the Court could not intefere with
the determination of the rule-making authority who had taken into
consideration the conditions of the trade and imposed a quantitative rather
than a qualitative test because that was, according to the rule-making
authority, most conductive to the public interest. 81
1. In upholding the reasonableness of the Minimum Wages Act , 1948,
the Court observed--
"We could not really appreciate the argument of Mr. Seervai that the
provisions of the Act are bound to affect harshly and even oppressively a
particular class of employers, who for purely economic reasons are unable
to pay the minimum wages fixed by the authorities but have absolutely no
dishonest intention of exploiting their labourers. If it is in the interest of the
general public that the labourers should be secured adequate living wages,
the intentions of the employers, whether good or bad, are really irrelevant.
Individual employers might find it difficult to carry on the business on the
basis of the minimum wages fixed under the Act but this must be due
entirely to the economic conditions of these particular employers. That
cannot be a reason for striking down the law itself as unreasonable. 82 In a
subsequent case, when the Minimum Wages Act was challenged, it was
held, "In an underdeveloped country which faces the problem of
unemployment on a very large scale, it is not unlikely that labour may offer
to work even on starvation wages. The policy of the Act is to prevent the
employment of such sweated labour in the interests of the general public
and so, in prescribing the minimum wage rate, the capacity of the employer
need not be considered. What is being prescribed is minimum wage rates
 631

which a Welfare State assumes every employer must pay before he

employs labour".83
1. Under the Port of Bombay Passenger Boat Rules, 1962, the
authorities prepared a roster system for operating launch services by
various launch owners. It was held that it was only a regulation of the use
of the landing place, intended for the maintenance of public order and that
there was no excessive invasion (if any) of the Appellant's fundamental
right to carry on business.84
32.
5. Once it is found that the restriction imposed has a rational relation to the
object which the Legislature seeks to achieve, it cannot be struck down as
unreasonable unless it is clearly established that it is unnecessarily harsh and
overreaches the object to achieve which the law was enacted.85 An order made
under clause (5) of the Sugar Control Order, 1966, which released sugar for sale
in the open market, but allowed only twenty-six days for its disposal was held as
constituting unreasonable restriction on the right of occupation as the period of 26
days was too short for the despatch of sugar out of the States in which it was
produced.86 Traders in certain commodities (essential commodities) may be more
drastically regulated than trade and commerce. To assess the reasonableness of
a restriction, the nature of the business and condition prevailing therein, are
important factors to be considered. As these factors differ from trade to trade, no
hard and fast rule concerning all trades can be laid down. The result of the
approach is that the court may hold drastic restriction on certain trades in certain
circumstances as reasonable. As for example, fixation of a ceiling of two hundred
quintals of wheat stocks possessed by dealer at any time is valid to obviate black-
marketing and hoarding in essential commodities.87 A similar embargo on sugar
stocks has been held as valid.88
A bye-law which totally prohibits the slaughter of cattle within a municipal area is
invalid; but not if it prohibits slaughter on specified holidays. 89 It was held that
besides the factors of restriction, such as, its duration and extent, the
circumstances and the manner in which the imposition of restriction was
authorised and the proportionality of the restriction should be considered. In
respect of duration of the restriction, a balanced view has to be taken. Sentiments
of a particular section of people demanding closure of slaughter houses during
the period of their festival is relevant in imposing such restriction. Directing the
closure of slaughter houses for nine days, respecting the sentiments of Jain
community was held not excessive or unreasonable or disproportionate restriction
on butchers' fundamental right to do their trade and business. 90However, when the
prohibition is only with respect to the right referable only in a particular area of act
ivity or relating to a particular matter, there is no total prohibition and such
restrictions are reasonable.91 A ban was put on the slaughtering of bulls and
bullocks, below the age of sixteen years. The Supreme Court found that these
animals could be used for breeding, draught and agricultural purposes upto the
age of sixteen years. The court said that such a restriction was not unreasonable,
looking at the balance which needs to be struck between the public interest,
which requires preservation of useful animals, and permitting the different traders
in beef, etc. to carry on their trade and profession.92
A total ban imposed on slaughter of bulls and bullocks was declared as invalid. 93
In State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat ,94 The Supreme Court
upheld a total ban on the slaughter of the progeny of cows. The words, "calves
and other milch and draught cattle" was construed as a matter of description of a
species and not with regard to age or function and only so as to distinguish such
cattle from other animals. However, this does not mean that laws and policies
which permit such slaughter as unconstitutional.95
 632

3. Even acts innocent in themselves may be prohibited if they are necessary to

secure the enforcement of valid provisions or to prevent evasion. Thus,
In a labour legislation to protect the health of workers and employees in a
commercial establishment, the Legislature may enact a general legislation
imposing maximum hours of work or closed days for every commercial
establishment whether, the owners employ strangers or members of their own
family96 or employ themselves. Such legislation cannot but be regarded as a
reasonable restriction imposed in the interests of the general public. 97

"...The worker is prevented from attempting to earn more wages by working longer
hours than is good for him. If such a condition is necessary or proper in the case of a
worker, there does not seem to be anything unreasonable in applying the same or
similar principles to the employer who works on his own business... The legislation is
in effect the exercise of social control over the manner in which business should be
carried on--regulated in the interests of the health and welfare not merely of those
employed in it but of all those engaged in it".98"The legislature may have felt it
necessary, in order to reduce the possibilities of evasion to a minimum, to encroach
upon the liberties of those who would not otherwise have been effected...99

3. Even where the provisions of a law are not unreasonable, an administrative

order, implementing the law, may be challenged as violative of Art. 19(1)(g), if the
authority exercises its discretionary power in an arbitrary or capricious manner. 100

IMPORTANT FIELDS FOR RESTRICTIONS Cattle slaughter

26.  When the case first came before the Supreme Court, 101 the Court held that a
law which prohibits the slaughter of bull, bullock (cattle as well as buffalo) cow and, calf
(cattle or buffalo), in pursuance of the Directive in Art. 48 of the Constitution, in order to
conserve the sources of milk-supply and draught cattle, constitutes a reasonable
restriction, but a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or
buffalo), without prescribing any test as to their utility, i.e., to be capable of yielding milk
or of breeding or working as draught animals cannot be supported as reasonable. The
Court said: "The protection recommended by this part of the directive (Part IV) is
confined only to cows and calves and to those animals which are presently or potentially
capable of yielding milk or of doing work as draught cattle, but does not, from the very
nature of the purpose for which it is obviously recommended, extend to cattle which at
one time were milch or draught cattle but have ceased to be such". Article 48 relates to
cows and calves and other milch and draught cattle. Earlier the view was that a total ban
on slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male
and females is quite reasonable and valid and is in consonance with Directive Principles.
In case of all other animals, ban on their slaughter can be imposed as long as they are
not useful as milch and draught cattle. Beyond this, the ban cannot be regarded as
reasonable.1 In State of Gujarat v. Mirzapr Moti Kureshi Kassab Jamat ,2 the Supreme
Court after considering the earlier decision upheld a total ban on the slaughter of
progeny of a cow. The words "calves and other milch and draught cattle" were construed
as a matter of description of a species and not with regard to age or function and only so
as to distinguish such cattle from other cattle".
It was observed that the maintenance of useless cattle involves a wasteful drain on the
nation's cattle feed. To maintain them is to deprive the useful cattle of the much needed
nourishment. The presence of so many useless animals tends to deteriorate the breed.
An elaborate procedure for certification of animals for slaughter was held to be
unreasonable as imposing disproportionate restriction on the butcher's right to carry on
their trade.3
28I.  Subsequent to the above pronouncement,4 the Bihar Legislature amended
the Act in 1959 and fixed 25 years as the age of she-buffaloes, bulls and bullocks, below
 633

which they could not be slaughtered. The butchers who were affected again petitioned
the Supreme Court under Art. 325, challenging the age limit as an unreasonable
restriction upon their business. The Court now relied upon the opinion of experts that
after the age of 15 bulls, bullocks and she-buffaloes were no longer useful for breeding,
draught and other purposes and whatever little use they might have then was greatly
offset by the economic disadvantages of feeding and maintaining unserviceable cattle.
The Court, therefore, held that Section 3 of the Amendment Act in so far as it raised the
age limit to 25 years in respect of bulls, bullocks and she-buffalloes, imposed an
unreasonable restriction on the fundamental right of the petitioners, and was void. 6
A total ban on slaughter of bulls and bullocks, irrespective of the fact that they have become unfit for
breeding, draught or milch or other purposes was held to be unconstitutional. The above ban imposed
by the M.P. Agricultural Cattle Preservation Act, 1959 as amended by the M.P. in 1991 was held
invalid. The Court permitted slaughter of bull or bullocks along with agricultural cattle. 7 In Usmanbhai's
case (supra), there was also a challenge that the law is discriminatory as it was "uniform" in respect of
all cattle. While rejecting the contention, the Court held that buffaloes and their progeny on the one
hand and cows and their progeny on the other hand constitute two different classes and their being
treated differently does not amount to hostile discrimination.
In Abdul Sattar Yusufbhai Qureshi v. State of Gujarat ,8 it was held that trade in meat or running a
slaughter house cannot be held to be inherently a dangerous trade so as to justify its complete
prohibition. The trade in meat being dependent on living creatures, the State can impose reasonable
restriction on slaughter of animals to preserve certain species of creatures. Where the overall
population of bulls and bullocks, because of successive droughts is reduced to a great extent, while
fixation of unreasonably high quota of slaughtering in any particular area, is not proportionate, a
reduction in quota for slaughter is justified. It was held that the said restriction is not a one time
measure, but has to be modified from time to time depending on the existing situations and the
demands of the time.
The decision in Mohd. Hanif Qureshi v. State of Bihar 9 was partly overruled in State of Gujarat v.
Mirzapur Moti Kureshi Kassab Jamat ,10 taking into consideration the altered situations based on
subsequent statistical reports. It was held that a total ban on slaughter of cow and her progeny, though
worded as prohibition, amounts only to a reasonable restriction. It was held that the ban is only in
respect of one particular class of cattle and not a ban on the total activity of butchers. The butchers
are left free to slaughter cattle other than cow and its progeny. The ban was held to be in public
interest. The Court also took note of Art. 48 and Art. 51-A of the Constitution to hold that the ban is
reasonable. The decision was rendered by a Constitution Bench.
The above decision was explained by Supreme Court (by two learned judges) to hold, "It is true that in
the aforesaid Constitution Bench decision, it was held that total prohibition of cow and cow progeny
slaughter may be justified. However, it has not been held in that decision that laws and policies which
permit such slaughter are unconstitutional. Therefore, the position of law remains that the directive
principles and fundamental duties cannot in themselves serve to invalidate a legislation or policy". 11
The said case related to export policy of meat from buffaloes that are certified as not useful for
milching, breeding or draught purposes. Export policy was therefore held valid.
Cinemas, regulation of:

26.  Reasonable regulation of cinema shows as to their number, timing or the

like, does not offend against Art. 19(1)(g).12
30.  In the case of cinema, because of its powerfulness as a medium of
expression and its social impact, prior restraint or censorship is not only reasonable but
necessary.13
20.  A licensee has no right to complain if rival traders are introduced into the
field.14
 634

The Cinematograph Act itself contains several provisions to ensure the fulfilment of the conditions
laid down in Sections 5-B of the Cinematograph Act and to ensure that any film which is likely to
offend the religious susceptibilities of people are not screened for public exhibition. 15
A prohibition on the grant of licence to exhibit film on video cassette players in a premise with seating
capacity of more than fifty persons was arbitrary and an unreasonable restriction on the right
guaranteed under Art. 19(1)(g).16
Entry 60 of List I of the Seventh Schedule provides for sanctioning of cinematograph film for
exhibition. Sanctioning of cinematograph film for exhibition would necessarily include making an
application for a certificate to a competent authority for exhibiting of a film and obtaining such
certificate prior to its exhibition. The entry would also include matters relating to exhibition of film
without sanction.17
In R.M. Seshadri v. Dt. Magistrate ,18 condition that was imposed while issuing licence was challenged.
The licence was compelled to exhibit at each performance "one or more approved films of such length
and for such duration of time as the Government may by order direct". It was held that the above
condition has vested in the Government unregulated discretion to compel the licence to exhibit a film
of any length which may consume major portion of time for which performance is given. It was held to
be an "imposition" rather than restriction and violative of Art. 19(1)(g). But, where the restrictions
sought to be imposed are specific and tailored to fit the public purpose, such restrictions are held
reasonable. Where a large percentage of population is illiterate and has very limited access to
knowledge, information and ideas, it is important that such knowledge and information is disseminated
to the vast volume of population in a manner which will ensure that the ideas and information are in
fact conveyed to them and they can assimilate and debate these ideas before accepting or rejecting
them.19
Where a person constructs a cinema theatre in his own land, a right is created in favour of cinema
going public to have an easy access to the theatre, thereby, the private property of the owner is
affected with public interest. By using his property as a theatre, he submits himself to the regulations
for common good and the public consequently acquire a direct and a positive interest in the exhibition
of cinematograph films. In such cases, the owner has no unbridled power to fix rates for admission at
his whim and the same can be regulated by the State under Art. 19(6). 20
Competition, control of
"The greatest good of the greatest number" has been taken as a ground for reasonableness in
upholding the validity of a notification under the U.P. Sugarcane (Regulation of Supply & Purchase)
Act, 1953, which provided that where, not less than 75 pet cent of the sugarcane growers of the area
of operation of Sugarcane Growers, Co-operative Society are members of the Society, the occupier of
the factory for which the area is assigned shall not purchase or enter into an agreement for purchase
of cane grown by a sugarcane grower, except through such co-operative society. The object of the
restriction placed by the notification upon individual cane growers to sell their produce to any person
they liked, was to eliminate the unhealthy competition between the cane growers on the one hand and
to prevent malpractices indulged by the occupier of a factory for the purposes of breaking up cane
growers' cooperative society and the provision was reasonable because the condition of 75 per cent
representation ensured that the restriction would be for the benefit of a large number of cane growers
who formed the co-operative society."21
Contract with Government
See ante.
Crimes, investigation of

27.  Section 93 of the Criminal procedure Code, 1973, which authorizes search
and seizure of documents for the purposes of investigation does not constitute an
unreasonable restriction upon the right guaranteed by Art. 19(1)(g). No doubt a seizure
and carrying away of documents is a restriction of the possession and enjoyment of the
 635

property seized. This is, however, a reasonable restriction, being only a temporary
interference for the limited purpose of an investigation. Statutory regulation in this behalf
is also necessary in the public interest.22
31.  But retention of goods which were illegally seized (e.g., in contravention of
the terms of s. 165 , CrPC ) would constitute a violation of Art. 19(1)(g). 23
The decision in M.P. Sharma's case (supra) was concerned as to the applicability of Art. 19(1)(f) and
Art. 20(3) of the Constitution. But in Kharak Singh v. State of U.P .,24 one of the learned judges held
that "domiciliary visits" by police amounted to an intrusion of one's private life and is violation of right
to privacy, which is a facet of Art. 21. The learned judge also held that the same may also be part of
freedom of speech and expression and right to movement. In Govind v. State of M.P .,25 it was
observed that the right to privacy though not absolute, can be denied only when an important
countervailing interest is shown to be superior. The right includes and protects personal intimacies of
the home, the family, marriage, motherhood procreation and child-bearing and that the list is not
exhaustive. In R. Rajagopal v. State of Tamil Nadu ,26 it was held that right to privacy is implicit in the
right to life and liberty.
Expanding the principle of privacy, it was held that the power of search and seizure cannot be
exercised arbitrarily and any unbridled power of search and seizure is violative of Art. 21 and Art. 19(1)
(a). It was held that the power could be exercised only when "there is reason to believe" that the
power should be exercised and must be based on materials placed before the authority. There must
be satisfaction on the part of the authority in an objective manner that his power should be exercised,
for otherwise it would be violative of right to privacy. It was further held that right to privacy which is
protected under Art. 21, is additionally guaranteed under Art. 19 and search and seizure without
sufficient safeguards would amount to encroachments on the freedom. The decision in M.P. Sharma's
case (supra) was distinguished and its applicability was limited.27
Directives, implementation of
1. The Supreme Court has consistently held that though the Directive Principles in Part IV of the
Constitution cannot override Fundamental Rights, if a law is made to implement a Directive, it would
be regarded as a 'reasonable restriction' within the meaning of Art. 19(2)-(6), 28 even though, it causes
hardship to particular individuals.29
The Directive Principles form the fundamental feature and the social conscience of the Constitution
and the Constitution enjoins upon the State to implement these directive principles. The directives
thus provide the policy, the guidelines and the end of socio-economic freedom and Art s. 14 and 16 on
the means to implement the policy to achieve the ends sought to be promoted by directive principles.
So far as the Courts are concerned, where there is no apparent inconsistency between directive
principles contained in Part IV and fundamental rights mentioned in Part III, which in fact supplement
each other, there is no difficulty in putting a harmonious construction which advances the object of the
Constitution. State of Kerala v. N.M. Thomas ,30 mandated the need for bearing in mind the Directive
Principles of State Policy which judging the reasonableness of the restriction imposed on fundamental
rights. See Pathumma v. State of Kerala ,31 wherein it was held that while considering the
reasonableness on the restriction, the Court must strike a just balance between fundamental right and
the larger and the broader interests of society, so that when such a right clashes with a larger interest,
the individual right has to yield to the larger interest. A restriction placed on any fundamental right
aimed at securing directive principles will be held as reasonable and valid subject to two conditions--
(1) that the impugned order or provision does not run in "clear conflict" with the fundamental right, and
(2) the provision is within legislative competence. Implementation of directive principles contained in
Part IV is within the expression "restriction in the interest of general public". 32 See also Papanasam
Labour Union v. Madura Coats Ltd, ,33 where it was held that there is no conflict between the
provisions of Part III and Part IV of the Constitution and they are supplementary to each other. In
Minerva Mills Ltd. v. Union of India ,34 it was held that, "harmony and balance between fundamental
rights and directive principles is an essential feature of the basic structure of the Constitution". Though
directive principles are unenforceable by the courts and the courts cannot direct the Legislature or
executive to enforce them, once a legislation, in pursuance of them is passed, the Courts can order
 636

the State to enforce the law, particularly when non-enforcement of law leads to denial of a
fundamental right.35
A restriction promoting any of the objectives of Directive Principles could be regarded as reasonable. 36
Article 47, which directs the State to bring about prohibition of consuming intoxicating drinks except for
medical purposes could be taken into account while considering the reasonableness of a prohibition
law under Art. 19. Article 47 relates to the idea of prohibition to public health. Therefore, to enforce
prohibition effectively, the law could define "liquor" broadly so as to include all alcoholic liquids which
might be used as substitute for intoxicating drinks to the detriment of health. However, the exemption
of medical preparation from Art. 17, shows the prohibition of toilet and medicinal preparation
containing alcohol would not be reasonable under Art. 19(6). 37 In Nashirwar v. State of MP ,38 the
Supreme Court cited Art. 47 as one of the reasons to hold that citizens have no fundamental right
under Art. 19(1)(g) to do business in liquor.39 In Har Shankar v. Deputy E & T Commr .,40 the above
principle was applied to all narcotics.
Fixing of minimum wages under the Minimum Wages Act has been characterised as "just the first
step" in the direction of fulfilling the mandate of Art. 43 of the Constitution. 41 Payment of statutory
minimum bonus even when the management sustains loss is justified under Arts.39 & 43. 42
The Kerala legislature enacted a law increasing the number of paid holidays in industrial undertakings
from seven to thirteen days during a year. The same was challenged by management as violative of
Art. 19(1)(g). Court rejected the contention and took into consideration Art. 43 of the Constitution.
Court referring to Art. 43 stated that Art. 43 does not envisage that the workers should be compelled to
work on all days. It is not the philosophy of Art. 43 that industrial or agricultural workers should work
on all days. It is necessary that they also enjoy some holidays. As human beings, they are entitled to a
period of rest which would enable them to fully enjoy their leisure and participate in social and cultural
act ivities.43
2. A wider protection against any challenge under Art. 14 or 19 has been offered by inserting Art. 31C,
in respect of laws to implement the Directives in Art s. 39(b)-(c). 44
Endowments, regulation of
To require the Mutwali or a Wakf to prepare an annual budget and to send it to the majus within a
specified time and to make a non-compliance with this requirement an offence are reasonable
restrictions upon the occupation of the mutfalli, because he occupies the position or a manager of a
public religious institution.45
Essential Commodities

27.  Prior to 1976, the Supreme Court upheld the reasonableness of control of
the production, supply and distribution of essential commodities, from a temporary law 46
to a raw of total prohibition;47 but, struck down--
A law which leaves it entirely to the discretion of the Government to requisition the
stocks of a commodity at any rate fixed by it and to dispose of such stock at any rate.48
29I.  A. So far as the Essential Commodities Act , 1955, is concerned, it has now
been excluded from the purview of Art. 19 altogether, by placing it in the 9th Sch., by the
Constitution (40th Amendment) Act, 1976 [Item 126].
B. But orders issued under the Act are still, open to judicial review. The Court will not however
interfere unless it is patently arbitrary, discriminatory or irrelevant to the policy laid down by the
Legislature.49
Thus, restrictions such as the following have been upheld as reasonable:
Regulating the limit of storage of an essential commodity by a dealer 50; imposing restriction upon
transactions by one wholesaler to another.51
 637

Under A.P. Scheduled Commodities (Regulation of Distribution by Card System) Order 1973, which is
framed under Essential Commodities Act , a fair price shop dealer has no right to be appointed as
such dealer. When the Government took a policy decision to bi-furcate the shops and reduce the
number of cards, while retaining the licence already issued, no prior notice need be issued before
bifurcation to the existing dealers since their right under Art. 19(1)(g) is no where affected. 52
An order establishing direct relation in the field of copper trade between the importer and the
consumer of copper and completely eliminating the middlemen - the dealer was held valid. 53 Copper is
an essential commodity; its indigenous production is small; consumers depend on imported copper
and there is a tendency of its price to go up. The order was promulgated in an honest effort to protect
the interest of general public.
A rule banning all hedging contracts in cotton except those permitted by Textile Commissioner and
also authorising him to place such restriction as he thought fit on such contracts was held valid. Cotton
being an essential commodity, restriction may reasonably amount to prohibition for a time of all trading
in the commodity.54 Drastic restriction placed on dealers of gold by the Gold Control Act was upheld. 55
In that case, the requirement of making a declaration under Sections 16(7) of the Gold Control Act
in respect of any gold owned, possessed, held or controlled by a licenced dealer or refiner or requiring
such dealer and withdrawal of facility of effecting peripatetic sales of good traveling salesman in
various parts of the country, being regulatory in nature do not violate any of his rights under the
Constitution.
A change in policy of Government by introducing a new scheme for running fair price shops through
co-operative societies in replacement of existing fair price shop dealers was held not violative of Art.
19(1)(g) since it in no way restricts the right of dealers in their freedom of trade or business and no
one has a right to be appointed as a dealer by Government. 56
Where legislation is made for increasing supplies, equitable distribution and availability of essential
commodities at fair prices, to the judgment of the statutory authorities on the basis of certain
guidelines, and for sale at controlled prices, the same cannot be held invalid merely because no
provision is made for adjustment on account of change in the cost of production. It does not affect the
fundamental right to trade or business.57
Foreign Exchange

28.  Drastic steps may be required to prevent loss of foreign exchange and to
maintain a favourable economic system.58
The matter has been placed beyond the pale of judicial review altogether, by placing the
following Act s in the 9th Schedule:
The Foreign Exchange Regulation Act , 1973 [Item 100]; Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act , 1974 [Item 104], Smugglers &
Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 [Item 127];
Conservation of Foreign Exchange & Prevention of Smuggling Act ivities (Amendment)
Act, 1976 [Item 129].
32.  Control over internal transactions even may be necessary in order to
maintain the national economy, effectively, e.g., the prevention of smuggling of gold and
the control over its possession and consumption within the country. 59[See next caption].
A law passed with a view to earn foreign exchange was upheld in Lord Krishna Sugar Mills v. UOI .60In
this case, the Sugar Export Promotion Act was challenged. The legislation imposed an obligation on
sugar mills to handover a fixed quota of sugar to the Government at a price fixed by it for export
purpose. The export price fixed was less than the price fixed for home market. The producers
challenged the validity of the Act. The Government contended that the loss of sugar producers was
being recouped by a higher price fixed by Government for the sugar sold at home under the Essential
Commodities Act . Court upheld the validity of legislation on the ground that it formed part of a single
scheme.
 638

Import and export

29.  The prohibition of imports61 or export of goods otherwise than in accordance

with licences or customs permits issued by the Government or by high officers, after
giving the applicants an opportunity of being heard, is a reasonable restriction imposed
in the public interest.62 And even though it may involve refusal of licence to traders other
than state agencies.63
33.  In some cases,64 it has been more explicitly held that there is no
fundamental right to obtain an import or export licence.
In modern times, the export and import policy of any democratic State is bound to be
flexible. The needs of the country, the position of foreign exchange, the need to protect
national industries and all other relevant considerations have to be examined by the
Government from time to time and rules in regard to export and import suitably adjusted.
It would, therefore, be idle to suggest that there should be unfettered and unrestricted
freedom of export and import or that the policy of the Government in regard to export
and import should be fixed and not changed according to the requirement of the country.
It is open to the Government and indeed national interests made it their duty, to
intervene and regulate the distribution of the commodity in suitable manner. 65 With a view
to earn foreign exchange, if under Import or Export Order, the Government decides to
canalise import or export of a commodity through a specialised channel, import or export
licence in that commodity could be refused to individuals. Such canalisation is not per se
an unreasonable restriction and it would be presumed to be in public interest unless the
contrary is shown clearly.66
In M/s. Ramchand Jagdishs Chand v. UOI ,67 the order passed by the Controller granting
a licence only upto 45% of the value of the goods exported and not full value was
questioned as violative of Art. 19(1)(g). The Court upheld the order and said that clause
2 of the Export Promotion Scheme which authorised the Controller of Imports to grant
licences upto the percentage specified in that clause vested the authority in the
Controller and did not impose an obligation upon him enforceable at the instance of
exporter to issue a licence for the amount claimed by him. The discretion, however, had
to be exercised reasonably and not arbitrarily. A tax, in particular, in the nature of duties
of customs is not per se violative of Art. 19(1)(g). Mere excessiveness of a tax is not, by
itself violative of Art. 19(1)(g). This question cannot be divorced from the nature of the
right to import. There is no absolute right much less a fundamental right to import. Mere
excessive custom duty which resulted in sharp increase in customs duty is not
unreasonable restriction of freedom of trade and business. 68
An order establishing direct relation between the importer and customer, in the field of
copper trade, for the purpose of eliminating middlemen - the dealer, was held valid.
Copper is an essential commodity and its indigenous production is small. Consumer had
to depend on the importer and there was a tendency of the price to go up. It was held
that attempt was an honest effort in the interest of general public. 69
21.  In order to effectively deal with the widespread offence of smuggling
commodities like gold, to the detriment of the national economy and financial stability,
Sections 178A of the Sea Customs Act places the burden of proving that all the goods
mentioned in the section and reasonably believed to be smuggled are not really so on
the person from whose possession they are seized. The reasonableness of these
restrictions by way of asking a person to prove the negative was challenged on the
ground that it would not be possible for persons like a bona fidepurchaser to discharge
such onus at all. The Supreme Court, however, negatived this contention on the ground
that the majority of persons against whom the section would be applied would be
persons concerned in the act of illicit, importation. If it was liable to be applied to persons
like a bona fide purchaser that was only a small section of the public and that in view of
the magnitude of the problem to be dealt with, the harshness it was liked to impose on a
 639

disproportionately small section of the public could not be said to constitute an

unreasonable restriction on the right to hold property under Art. 19(1)(f). 70[The same
conclusion would be made in relation to Art. 19(1)(g)].
10.  An import or export licensing policy does not confer any legally enforceable
right.71 But an administrative decision which is not in conformity with the Import Licence
Policy may be quashed, though, in general, such policy does not give an enforceable
right.72
Government Premises ["See 'Public Premises', post].
Government Service [See ante].
Industrial relations, regulation of

28.  Prior to 1976--

3. The Supreme Court had upheld the reasonableness of--
7. A law (s. 25FFF of the Industrial Disputes Act , 1947), requiring
pasment of compensation to workmen, in certain circumstances. 73
7. A law fixing 'minimum wages',74 or 'fair wages',75 as envisaged by Art.
43 of the Constitution.
2. Imposting restrictions upon the right of an employer to engage
'contract labour'76 or to observe conditions of employment77 or to refer an
industrial dispute to conciliation or adjudication. 78
33.
34. A law enacted to avoid physical overstrain of the worker and to afford him
better conditions of work and more regulated hours ensuring a reasonable
amount of leisure is restriction in the interest of general public. Fixing work for 48
hours in a week, specification of opening and closing hours are intended to
ensure the health and efficiency of the employee.79 In MRF Ltd. v. Inspector,
Kerala Government ,80while justifying the law which increased the number of
holidays from nine to thirteen, the court said that the workers are also entitled to
enjoy holidays. As human beings, they are also entitled to some rest, which could
enable them to fully enjoy their leisure and participate in social and cultural act
ivities.
2. On the other hand--
8. While the Court has upheld the reasonableness of a provision
requiring a notice of as much as six months (instead of the usual notice of
one month) for the retrenchment of newspaper editors, on the ground that
the period of one month is too short for a journalist of that standing to find
out an alternative employment,81 it has refused to uphold the
reasonableness of a provision in the same statute [Working Journalists and
Other Newspaper Employees (Conditions of Service) and Miscellaneous
Provisions Act, 1955], requiring payment of gratuity to working journalists
who voluntarily resigned from service, on the ground that it was an
excessive restriction inasmuch as 'gratuity' being a reward for good, faithful
and efficient service rendered for a considerable period, there is no
justification for awarding it when an employee voluntarily resigns, except in
exceptional circumstances, e.g., after continuous service for more than 15
years.82
8. A Scheme which requires the employer of contract labour to
contribute towards provident fund for the labour employed without requiring
the contractors to share the burden imposes an unreasonable restriction
upon the employer.83
It was also held in that case that the Scheme framed under the Act was
conceived in public interest and there is no justification to exclude contract
 640

labour from the benefit of the scheme. The contention that the procedure
adopted for making the principal employer liable for the provident fund of
contract labour violates Art. 19(1)(g) because in that case the employer will
be faced with practical difficulties. Rejecting the contention, it was held that
practical difficulties are not sufficient to overthrow a scheme.
Extension of the benefit of the Factories Act , to premises and workers not
strictly coming within the provisions of the Factories Act , was held as
merely to effectuate the purpose of the Act, i.e., it authorises extension of
the benefit of the Act to persons to whom the Act, to fully effectuate the
object should have been, but has on account of administrative or other
difficulties have not been extended.84
3. A provision fixing living or fair wages, without considering the
capacity of the owner of the industry to pay unreasonable. 85
35.

30I.  After 1976, the question arose whether the Court would be precluded, by
reason by Art. 31C of the Constitution from questioning the reasonableness of an
industrial legislation which imposes restrictions upon an employer's right to carry on or to
close a business.
An amendment to the Factories Act [s. 2(n)] making it compulsory only to appoint a Director as
"occupier" of the factory was held valid since the Legislature has attempted to plug the holes whereby
the Directors used to appoint one of its employee or manager as "occupier" and thus escape the
liability when it is found that the factory has violated any law regarding the safety and health of its
workers. The contention that the right to nominate is taken away amounts to violation of fundamental
rights to do business was rejected.86
It is to be noted in this context that the original Art. 31C shielded only laws made to implement the
Directives in Art s. 39(b)-(c). The 1976-amendment of Art. 31C sought to extend this protection to all
the Directives in Art. 31C. But this attempt was frustrated by the Supreme Court's decision in the
Minerva Mills case87 which struck down that extension on the ground that it would give the Directive
Principles a primacy over the Fundamental Rights--which was contrary to the basic structure of the
Constitution.
The result is that Art. 31C would debar a businessman to challenge the constitutionality of an industrial
or labour law only if such law was relatable to the Directives in Art. 39(b)(c), otherwise not. 88 This may
be illustrated with reference to the facts in the Excel Wear case:89
In this case,90 what was challenged was the constitutionality of Sections 25-O of the Industrial
Disputes Act , 1947, which empowered the Government to prohibit an employer to close down a
business unless the Government was satisfied as to the sufficiency of the reasons given by the
employer. The Court held that the impugned law had same affinity to the Directive in Art. 43, but, not
to Art. 39(b) or (c). The Court, therefore, struck down the provision in s. 25-O as an unreasonable
restriction on the grounds, inter alia, that the provision did not require the Government to give any
reasons nor provide for any judicial review of the order. 91
Subsequent to the decision in Excel Wear case, Section 25-O was substituted and amended as per
Act 46 of 1982, constitutionality of which was questioned in Orissa Textile & Steel Ltd. v. State of
Orissa .92 It was held that the defects both substantive and procedural have been rectified and the
restriction now imposed for closure of undertaking is valid. The amended section lays down guidelines
which are to be followed by appropriate Government in granting or refusing to grant permission to
close down. It has to have regard to the genuineness and adequacy of the reason stated by the
employer. Even in cases where reasons are genuine and adequate, permission is not automatic, for
the same has to be balanced with public interest which should be of compelling nature. 93 Even in
cases where the employer and employee have entered into an agreement to close down the industry,
prior permission is required.94
 641

Provision increasing the number of holidays from three to four and that of festival holidays from four to
nine was held valid. The Court held that the change in social conditions, requirement of healthy labour
force, necessity for recreation justify the action of the Government taking into consideration Directive
Principles of State Policy.95 Likewise, an obligation on the employer to pay the employees the
minimum statutory bonus was held valid, taking into consideration Art s. 39 and 43 of the
Constitution.96
Reducing the qualifying years of service for getting gratuity on resignation or retirement is not an
unreasonable restriction to the freedom of trade or business. It was held that the Article comes into
picture only in cases where by such payment, i.e., financial burden makes the employer to close down
his unit.97 In that case, the court justified the direction as a welfare measure in the interest of general
public to secure social and economic justice to workmen to assist them in their old age and to ensure
them a decent standard of life on their retirement.
It follows that an industrial law might be challenged as an unreasonable restriction under Art. 19(1)(g),
where it is not covered by Art. 39 (b) or (c).
Even where the Act or the Control order be upheld as valid, a subordinate order 98 or notification99
issued by the administrative authority, if unreasonable, may fail as violative of Art. 19(1)(g). 100
38 Chintamanrao v. State of M.P., (1950) SCR 759 : AIR 1951 SC 118. See alsoState of Maharashtra v. Indian Hotel &
Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519.

39 Ritesh Agarwal v. SEBI, (2008) 8 SCC 205 : (2008) 9 SCALE 29.

40 Dharam Dutt v. UOI, AIR 2004 SC 1295 : (2004) 1 SCC 712 (supra); see alsoState of Madras v. V.G. Row, AIR
1952 SC 196 : (1952) SCR 597.

41 Om Prakash v. State of UP, AIR 2004 SC 1896 : (2004) 3 SCC 402.

42 State of Bihar v. Project Uchcha Vidya Sikshak Sangh, (2006) 2 SCC 545 : (2006) 1 SCR 14.

43 Cooverjee B. Bharucha v. Excise Commr., 1954 SCR 873 : AIR 1954 SC 220.

44 Cooverjee B. Bharucha v. Excise Commr., 1954 SCR 873 : AIR 1954 SC 220; Hathisingh Mfg. Co. v. Union of India,
(1960) 3 SCR 528 (535) : AIR 1960 SC 923; Ajit Singh v. State of Punjab, AIR 1967 SC 856. [See further, under
'Essential Commodities', post.

45 Hathisingh Mfg. Co. v. Union of India, (1960) 3 SCR 528 (535) : AIR 1960 SC 923; Ajit Singh v. State of Punjab, AIR
1967 SC 856 : (1967) 2 SCR 143. [See further, under 'Essential Commodities', at p. 133, post. See alsoKrishnan
Kakkanath v. Govt. of Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495.

46 M.J. Sivani v. State of Karnataka, AIR 1995 SC 1770 : (1995) 6 SCC 289.

47 Mohd. Faruk v. State of M.P., AIR 1970 SC 93 : (1969) 1 SCC 853.

48 Cooverjee B. Bharucha v. Excise Commr., (1954) SCR 873 : AIR 1954 SC 220.

49 Cooverjee B. Bharucha v. Excise Commr., (1954) SCR 873 : AIR 1954 SC 220.

50 Hathisingh Mfg. Co. v. Union of India, (1960) 3 SCR 528 (535) : AIR 1960 SC 923; Ajit Singh v. State of Punjab, AIR
1967 SC 856 : (1967) 1 SCR 143. [See further, under 'Essential Commodities', post.

51 Hathisingh Mfg. Co. v. Union of India, (1960) 3 SCR 528 (535) : AIR 1960 SC 923; Ajit Singh v. State of Punjab, AIR
1967 SC 856 : (1967) 1 SCR 143. [See further, under 'Essential Commodities', post.

52 Prag Ice and Oil Mills v. UOI, AIR 1978 SC 1296 : (1978) 3 SCC 459: (1978) 3 SCR 293.

53 AIR 1954 SC 307 : (1954) SCR 982.

54 AIR 1959 SC 626 : 1959 (Supp-2) SCR 123.

55 M.G. Cotton Association v. Union of India, AIR 1954 SC 634.

56 Suraj Mal Kailash Chand v. Union of India, AIR 1982 SC 130 : (1981) 4 SCC 554; P.P. Enterprises v. Union of India,
AIR 1982 SC 1016 : (1982) 2 SCC 33.
 642

57 New India Sugar Works v. State of U.P., AIR 1981 SC 998 : (1981) 2 SCC 293.

58 Diwan Sugar Mills v. UOI, AIR 1959 SC 626 : 1959 (Supp-2) SCR 123; Saraswathy Industries Syndicate v. UOI, AIR
1975 SC 460 : (1975) 1 SCC 156.

59 Saraswathy Industries Syndicate v. UOI, AIR 1975 SC 460 : (1975) 1 SCC 156.

60 UP Co-operative Cane Union Federation v. West UP Sugar Mills Assn., AIR 2004 SC 3697 : (2004) 5 SCC 430.

61 AIR 1974 SC 366 : (1974) 1 SCC 468.

62 AIR 1972 SC 1690 : (1972) 2 SCR 526.

63 7th Edn. 2014, Vol. 1 at p. 1088)

64 Chintaman Rao v. State of MP, AIR 1951 SC 118 : (1950) SCR 759 (supra).

65 Sukhanandan v. Union of India, AIR 1982 SC 902 : (1982) 2 SCC 150 (para. 23); Sreenivasa General Traders v.
State of A.P., AIR 1983 SC 1246 : (1983) 4 SCC 353 (para. 15).

66 Dwarka Prasad v. State of U.P., (1954) SCR 803 : AIR 1954 SC 224.

67 Dwarka Prasad v. State of U.P., (1954) SCR 803 : AIR 1954 SC 224.

68 Madhubhai v. Union of India, A 1961 SC 21 (23, 27) : (1961) 1 SCR 191.

69 Madhubhai v. Union of India, A 1961 SC 21 (23, 27) : (1961) 1 SCR 191.

70 Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124 (1134) : (1960) 1 SCR 39.

71 Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124 (1134) : (1960) 1 SCR 39.

72 Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124 (1134) : (1960) 1 SCR 39.

73 Sivarajan v. Union of India, AIR 1959 SC 556 : 1959 Supp (1) SCR 779; Hanif v. State of Bihar, (1959) SCR 629.

74 Dwaraka Prasad Laxmi Narain v. State of U.P., AIR 1954 SC 224; Sukhanandan Dinesh Kumar v. Union of India,
AIR 1982 SC 902 : (1982) 2 SCC 150; Saraswathi Industrial Syndicate Ltd. v. Union of India, AIR 1975 SC 460 : (1974)
2 SCC 630.

75 Union of India v. Hindustan Aluminium Corpn. Ltd., AIR 1983 Cal 307. See alsoShree Meenakshi Mills v. Union of
India, AIR 1974 SC 366 : (1974) 1 SCC 468.

76 AIR 1983 SC 1015 : (1983) 4 SCC 575.

77 Sivarajan v. Union of India, AIR 1959 SC 556 : 1959 Supp (1) SCR 779.

78 AIR 1978 SC 1296 : (1978) 3 SCC 459: (1978) 3 SCR 293 (supra).

79 SeeShree Meenakshi Mills Ltd. v. UOI, AIR 1974 SC 366 : (1974) 1 SCC 468; Prag Ice and Oil Mills v. UOI, AIR
1978 SC 1296 : (1978) 3 SCC 459 : (1978) 3 SCR 293.

80 SeeNew India Sugar Works v. State of UP, AIR 1981 SC 998 : (1981) 2 SCC 293.

81 Sivarajan v. Union of India, AIR 1959 SC 556 : 1959 Supp (1) SCR 779.

82 Bijay Cotton Mills v. State of Ajmer, (1955) 1 SCR 752 (755) : AIR 1955 SC 25.

83 U. Unichoyi v. State of Kerala, AIR 1962 SC 12. See alsoCrown Aluminium Works v. Workmen, AIR 1958 SC 30 :
(1958) 1 LLJ 1.

84 Mahesh Travels v. Commr. of Police, AIR 1989 SC 1525 : 1989 Supp (2) SCC 303 (paras. 9, 11-13).

85 Arunachala v. State of Madras, AIR 1959 SC 300 (304) : 1959 Supp (1) SCR 92.

86 Oudh Sugar Mills v. Union of India, AIR 1970 SC 1070; Panipat Co-operative Sugar Mills v. Union of India, AIR 1973
SC 537 : (1973) 1 SCC 129.
 643

87 Suraj Mal Kailash Chand v. UOI, AIR 1983 SC 130 : (1981) 4 SCC 554.

88 P.P. Enterprises v. UOI, AIR 1982 SC 1016 : (1982) 2 SCC 33.

89 Md.Frank v. State of M.P., AIR 1970 SC 93 : (1969) 1 SCC 853; Municipal Corp. v. Jan Mohd., AIR 1986 SC 1205 :
(1986) 3 SCC 20.

90 Hinsa Virodhak Sangh v. Mirzapur Moti Kureshi Jamat, AIR 2008 SC 1892 : (2008) 5 SCC 33. In that case, the
Supreme Court partly overruled Md. Faruki's case (supra).

91 Krishna Kumar v. Municipal Committee of Bhatapura, (2005) 8 SCC 612relied on in State of Gujarat v. Mirzapur
Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 : AIR 2006 SC 212.

92 Haji Usmanbhai Hasanbhai Quereshi v. State of Gujarat, AIR 1986 SC 1213 : (1986) 3 SCC 12.

93 Hamsathullah v. State of MP, AIR 1996 SC 2076 : (1996) 4 SCC 391; Also seeMirzapur Moti Kureshi Jamat v. State
of Gujarat, AIR 1998 Guj 220; Abdul Sattar Yusufbhai Quereshi v. State of Gujarat, AIR 2001 Guj 179.

94 (2005) SC 534 : AIR 2006 SC 212 (supra).

95 Akhil Bharat Goseva Sangh (3) v. State of AP, (2006) 4 SCC 162 : (2006) 4 JT 482.

96 Manohar Lal v. State, (1951) SCR 671 (675).

97 Manohar Lal v. State, (1951) SCR 671 (675).

98 Manohar Lal v. State, (1951) SCR 671 (675).

99 Manohar Lal v. State, (1951) SCR 671 (675).

100 Vellore E.C. v. State of T.N., (1989) 4 SCC 138 : AIR 1989 SC 1741 (paras. 38, 40) (CB); Welcome Hotel v. State
of A.P., AIR 1983 SC 1015 : (1983) 4 SCC 575 (para. 9); cf. C7, Vol. C, pp. 81-82.

101 Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 : 1959 SCR 629. See alsoAbdul Hakim v. State of Bihar, AIR
1961 SC 448 : (1961) 2 SCR 610.

1 SeeM.H. Quareshi v. State of Bihar, AIR 1958 SC 731 : (1959) SCR 629; see alsoAbdul Hakim Quereshi v. State of
Bihar, AIR 1961 SC 448 : (1961) 2 SCR 610; Mohd. Faruk v. State of HP, AIR 1970 SC 93 : (1969) 1 SCC 853 (supra);
Haji Usmanbhai Hasanbhai Quereshi v. State of Gujarat, AIR 1981 Guj 40; Hasmathullah v. State of MP, AIR 1996 SC
2076 : (1996) 4 SCC 391.

2 AIR 2006 SC 212 : (2005) 8 SCC 534 (supra).

3 Mohd. Faruk v. State of M.P., AIR 1970 SC 93 : (1969) 1 SCC 853 (supra).

4 Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 : 1959 SCR 629. See alsoAbdul Hakim v. State of Bihar, AIR 1961
SC 448 : (1961) 2 SCR 610.

5 Abdul Hakim v. State of Bihar, AIR 1961 SC 448; Faruk Mohammed v. State of M.P., AIR 1970 SC 93 : (1969) 1 SCC
833; Usmanbhai Hasanbhai Qureshi, Haji v. State of Gujarat, AIR 1986 SC 1213 : (1986) 3 SCC 12 (para. 15).

6 Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.

7 Hashmattullah v. State of M.P., (1996) 4 SCC 391 : AIR 1996 SC 2076.

8 Abdul Sattar Yusufbhai Qureshi v. State of Gujarat, AIR 2001 Guj 179.

9 Mohd. Hanif Qureshi v. State of Bihar, AIR 1958 SC 1731 : 1959 SCR 629 (supra).

10 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 : AIR 2006 SC 212 : (2005) 8 SCC 538.

11 Akhil Bharat Goseva Sangh (3) v. State of U.P., (2006) 4 SCC 162.

12 Minerva Talkies v. State of Karnataka, AIR 1988 SC 526 : 1988 (Supp) SCC 176.

13 Rangarajan v. Jagjiban Ram, P., (1989) 2 SCC 574 : (1989) 2 SCJ 128 : (1989) 2 JT 70 (para s. 10, 17).

14 Desai Jasbhai Motibhi v. Roshan Kumar, AIR 1976 SC 578 : (1976) 1 SCC 671.
 644

15 Ramesh v. UOI, AIR 1988 SC 775 : (1988) 2 SCR 1011 : (1988) 1 SCC 668.

16 Raja Video Parlour v. State of Punjab, AIR 1993 SC 2330 : (1993) 3 SCC 708; see alsoM/s. Shankar Video v. State
of Maharashtra, AIR 1993 SC 2111 : (1993) 3 SCC 696.

17 Music Centre Maundsar v. State of MP, AIR 1989 MP 56.

18 R.M. Seshadri v. Dt. Magistrate, Tanjore, AIR 1954 SC 747.

19 Union of India v. Motion Picture Association, AIR 1999 SC 2334 : (1999) 6 SCC 150. See alsoM.A. Baig v. State of
A.P., AIR 1961 AP. 126.

20 Deepak Theatre v. State of Punjab, AIR 1992 SC 1519 : 1992 (Supp-1) SCC 684.

21 Tika Ramji v. State of U.P., AIR 1956 SC 676 (710) : 1956 SCR 393.

22 M.P. Sharma v. Satish Chandra, (1954) SCR 1077 : AIR 1954 SC 300.

23 Wazir Chand v. State of H.P., AIR 1954 SC 415 (417) : (1954) SCA 1257 : (1955) 1 SCR 408; Mariappa v. State of
Karnataka, (1991) CrLJ 1167 (paras. 13, 22).

24 Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1964) 1 SCR 332.

25 Govind v. State of M.P., (1975) 2 SCC 148 : AIR 1975 SC 1378.

26 R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.

27 District Registrar and Collector, Hyderabad v. Canara Bank, AIR 2005 SC 186: (2005) 1 SCC 496.

28 Bijay Cotton Mills v. State of Ajmer, (1955) 1 SCR 752 : AIR 1955 SC 33; Hanif Quareshi v. State of Bihar, AIR 1958
SC 731 : 1959 SCR 629.

29 Sonia v. State of U.P., AIR 1981 SC 1274 (para. 29); Laxmi Khandsari v. State of U.P., AIR 1981 SC 873 : (1981) 2
SCC 600 (para s. 33-35); Municipal Corpn. V. Jan Mohd., (1986) 3 SCC 20 : AIR 1986 SC 1205 (paras. 19-21).

30 State of Kerala v. N.M. Thomas, (1976) 2 SCC 310. Kesavananda Bharathi v. State of Kerala, (1973) 4 SCC 225.

31 Pathumma v. State of Kerala, (1978) 2 SCC 1.

32 Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589 : AIR 2003 SC 3240.

33 Papanasam Labour Union v. Madura Coats Ltd, (1995) 1 SCC 501 : AIR 1995 SC 2200 : (1997) 3 LLJ (Supp) 938,
MRF Ltd. v. Inspector, Kerala Govt., (1998) 8 SCC 227; Chandra Bhavan Boarding & Lodging v. State of Mysore, AIR
1970 SC 2042 : (1969) 3 SCC 84.

34 Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 : (1980) 2 SCC 591.

35 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 : (1984) 3 SCC 161. See also Akhil Bharatiya Soshit
Karamchari Sangh v. Union of India, AIR 1981 SC 298 : (1981) 1 SCC 246 : (1981) 1 LLJ 209; U.P.S.E.B. v. Hari
Shankar Jha, AIR 1979 SC 65 : (1978) 4 SCC 16 ; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat , : AIR 2006
SC 212 : (2005) 8 SCC 534.

36 Sashibhushan v. Mangla, AIR 1953 Ori 171; Saghir Ahamed v. State of UP, AIR 1954 SC 728 : (1955) 1 SCR 707;
M.R.F Ltd. v. Inspector, Kerala Government, AIR 1999 SC 188 : (1999) 8 SCC 227.

37 State of Bombay v. F.N. Balsara, AIR 1951 SC 318 : (1951) SCR 682.

38 AIR 1975 SC 360 : (1975) 1 SCC 29.

39 See alsoState of Kerala v. Kandath Distillers, AIR 2013 SC 1812 : (2013) 6 SCC 573.

40 AIR 1975 SC 1121 : (1975) 1 SCC 737.

41 Chandra Bhavan Boarding House v. State of Mysore, AIR 1970 SC 2042 : (1969) 3 SCC 84.

42 Jalan Trading Co. v. D.M. Daney, AIR 1979 SC 233 : (1979) 3 SCC 220 (supra).

43 MRF Ltd. v. Inspector, Govt. of Kerala, AIR 1999 SC 188 : (1998) 8 SCC 227 (supra).
 645

44 Minerva Mills v. Union of India, AIR 1980 SC 1789 : (1980) 3 SCC 625.

45 Bashiruddin v. State of Bihar, (1957) SCR 1032 : AIR 1957 SC 645.

46 Harishankar v. State of M.P., (1955) 1 SCR 380 : AIR 1954 SC 465.

47 State of Rajasthan v. Nathomal, (1954) SCR 982 : AIR 1954 SC 307.

48 State of Rajasthan v. Nathomal, (1954) SCR 982 : AIR 1954 SC 307.

49 Prag Ice Mills v. Union of India, AIR 1978 SC 1296 : (1978) 3 SCC 459; Suraj Mal Kailash Chand v. Union of India,
AIR 1982 SC 130 : (1981) 4 SCC 554; Krishna v. State of Rajasthan, AIR 1982 SC 29 : (1981) 4 SCC 550; Bishambar
v. State of U.P., AIR 1982 SC 33 : (1982) 1 SCC 39.

50 Prag Ice Mills v. Union of India, AIR 1978 SC 1296 : (1978) 3 SCC 459; Suraj Mal Kailash Chand v. Union of India,
AIR 1982 SC 130 : (1981) 4 SCC 554; Krishna v. State of Rajasthan, AIR 1982 SC 29 : (1981) 4 SCC 550; Bishambar
v. State of U.P., AIR 1982 SC 33 : (1982) 1 SCC 39.

51 P.P. Enterprises v. Union of India, AIR 1982 SC 1016 : (1982) 2 SCC 33 (paras. 8-9); Hans Raj v. Union of India,
AIR 1991 Del 83 (para. 11) (DB).

52 District Collector v. B. Suresh, (1999) 5 SCC 612 : JT (1999) SC 151. See alsoS. Chandra Sekharan v. Govt. of
Tamil Nadu, AIR 1974 SC 1543 : (1974) 2 SCC 196.

53 Narendra Kumar v. UOI, AIR 1960 SC 430 : (1960) 2 SCR 375 (supra).

54 M.B. Association v. UOI, AIR 1954 SC 634.

55 Manickchand v. UOI, AIR 1984 SC 1249 : (1984) 3 SCC 65.

56 M.P. Ration Vikreta Sangh v. State of M.P., AIR 1981 SC 2001 : (1981) 4 SCC 535.

57 Shree Meenakshi Mills Ltd. v. Union of India, AIR 1974 SC 366 : (1974) 1 SCC 468.

58 Hans Raj v. Union of India, AIR 1991 Del 83 (para. 11) (DB).

59 Harakchand v. Union of India, AIR 1970 SC 1453 : (1969) 2 SCC 166; Collector of Customs v. Sampathu, AIR 1962
SC 316 : (1962) 3 SCR 786; Ramchand v. Union of India, AIR 1963 SC 563 : (1962) 3 SCR 72.

60 AIR 1959 SC 1124 : (1960) 1 SCR 39.

61 Ramchand v. Union of India AIR 1963 SC 563 (566) : (1962) 3 SCR 72; Liberty Mills v. Union of India, AIR 1984 SC
1271 [paras, 15, 21] : (1984) 3 SCC 465.

62 Ramchand v. Union of India AIR 1963 SC 563 (566) : (1962) 3 SCR 72; Liberty Mills v. Union of India, AIR 1984 SC
1271 [paras, 15, 21] : (1984) 3 SCC 465.

63 Krishan v. State of Rajasthan, AIR 1982 SC 29 : (1981) 4 SCC 550 (para. 5).

64 Fernandez v. Dy. Chief Controller, AIR 1975 SC 1208 : (1975) 1 SCC 716 (para. 30); Dy. I. & S. Controller v.
Manikchand, AIR 1972 SC 935 : (1972) 3 SCC 324.

65 Bhatnagars & Co. Ltd. v. Union of India, AIR 1957 SC 478 : (1957) SCR 701.

66 Daya v. Joint Chief Controller, Import & Export, AIR 1962 SC 1796 : (1963) 2 SCR 73; Glass Chatans Importers &
Users Association v. UOI, AIR 1961 SC 1514 : (1962) 1 SCR 862; Daruka & Co v. UOI, AIR 1973 SC 2713.

67 AIR 1963 SC 563 : (1962) 3 SCR 72 (supra).

68 Pankaj Jain Agencies v. Union of India, (1994) 5 SCC 198. SeeDy. Assistant Iron & Steel Controller v. L.
Manickchand, AIR 1972 SC 935 : (1972) 3 SCC 324; Andhra Industrial Works v. Chief Controller of Imports, AIR 1974
SC 1539 : (1974) 2 SCC 348; J. Fernando & Co. v. Dy. Chief Controller of Imports & Exports, AIR 1975 SC 1208 :
(1975) 1 SCC 716.

69 Narendra Kumar v. Union of India, AIR 1960 SC 430 : (1960) 2 SCR 375.

70 Collector of Customs v. Sampathu, AIR 1962 SC 316 (333) : (1962) 3 SCR 786.
 646

71 Oswal Woollen Mills v. Union of India, AIR 1983 SC 969 : (1983) 4 SCC 345. See alsoAndhra Industrial Works v.
Chief Controller of Imports, AIR 1974 SC 1539 : (1974) 2 SCC 348; J. Fernando & Co. v. Dy. Chief Controller of
Imports & Exports, AIR 1975 SC 1208 : (1975) 1 SCC 716.

72 Fernandez v. Dy. Chief Controller, AIR 1975 SC 1208 : (1975) 1 SCC 716 (para. 30); Dy. I. & S. Controller v.
Manikchand, AIR 1972 SC 935 : (1972) 3 SCC 324; Andhra Industrial Works v. Chief Controller of Imports, AIR 1974
SC 1539 : (1975) 1 SCR 321 : (1974) 4 SCC 827.

73 Hathisingh Mfg. Co. v. Union of India, (1960) 3 SCR 528 : AIR 1960 SC 923.

74 Bijay Cotton Mills v. State of Ajmer, (1955) I SCR 752 (755) : AIR 1955 SC 33.

75 Express Newspapers v. Union of India, AIR 1958 SC 578 (602, 622) : 1959 SCR 12.

76 G.S. Mill v. K.T.S. Kamgar Sabha, AIR 1961 SC 1016 (1018) : (1961) 3 SCR 342.

77 Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539 : (1975) 1 SCR 321 : (1974) 4 SCC 827.

78 State of U.P. v. Basti Sugar Mills, AIR 1961 SC 420 (437) : (1961) 2 SCR 330.

79 Ramdhandas v. State of Punjab, AIR 1961 SC 1559 : (1962) 1 SCR 852.

80 AIR 1999 SC 188 : (1998) 8 SCC 227 (supra).

81 Bijay Cotton Mills v. State of Ajmer, (1955) I SCR 752 (755) : AIR 1955 SC 33.

82 Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539 : (1975) 1 SCR 321 : (1974) 4 SCC 827.

83 Orissa Cement Ltd. v. Union of India, AIR 1962 SC 1402 (1408) : 1962 Supp (3) SCR 837.

84 Bhikusa Yamasa Kshatriya (P.) Ltd. v. Union of India, AIR 1963 SC 1591 : (1964) 1 SCR 860.

85 P.T.I. v. Union of India, AIR 1974 SC 1044 : (1974) 4 SCC 638. See alsoExpress Newspapers v. UOI, AIR 1958 SC
578 : (1959) SCR 12; Unichoyi v. State of Kerala, AIR 1962 SC 12 : (1962) 1 SCR 946.

86 J.K. Industries Ltd. v. Chief Inspector of Factories and Boilers. (1996) 6 SCC 665.

87 Minerva Mills v. Union of India, AIR 1980 SC 1789 : (1980) 3 SCC 625.

88 Vide 10 Sh., p. 239.

89 Cf. Excel Wear v. Union of India, AIR 1979 SC 25 : (1978) 4 SCC 224 (para. 39).

90 Cf. Excel Wear v. Union of India, AIR 1979 SC 25 : (1978) 4 SCC 224 (para. 39).

91 Cf. Excel Wear v. Union of India, AIR 1979 SC 25 : (1978) 4 SCC 224 (para. 39).

92 Orissa Textile & Steel Ltd. v. State of Orissa, AIR 2002 SC 708 : (2002) 2 SCC 578.

93 See alsoWorkmen v. Meenakshi Mills Ltd., AIR 1994 SC 2696 : (1992) 2 SCC 336 : (1992) 2 LLJ 294.

94 Oswal Agro Furane Ltd. v. Oswal Agro Furane Workers Union, AIR 2005 SC 1555 : (2005) 3 SCC 224 : (2005) 1
LLJ 1117.

95 MRF Ltd. v. Inspector, Kerala Govt., (1998) 8 SCC 227.

96 Jalan Trading Co. (P.) Ltd. v. D.M. Aney, AIR 1979 SC 233 : (1979) 3 SCC 220.

97 Bakshish Singh v. Darshan Engineering Works, AIR 1994 SC 251 : (1994) 1 SCC 9. See alsoBritish Paints (India)
Ltd. v. Its Workmen, AIR 1966 SC 732 : (1966) 2 SCR 523; Straw Board Mfg. Co. v. Their Workmen, AIR 1977 SC
941 : (1977) 2 SCC 329.

98 Oudh Sugar Mills v. Union of India, AIR 1970 SC 1070.

99 Hegde v. Market Committee, AIR 1971 SC 1017 : (1971) 1 SCC 349.

100 Oudh Sugar Mills v. Union of India, AIR 1970 SC 1070.

 647

Intoxicants, prohibition of

30.  There is no fundamental right to trade or business in relation to intoxicants. 1

Trade in liquor is not a fundamental right. It is a privilege of the State. It is for the State to
decide whether it should part with that privilege. 2The State parts with the privilege for
revenue consideration. The permissive privilege to deal in liquor is "not a right at all".
The consideration received by the State is neither a tax nor a fee. It is simply a levy for
the act of granting permission or for the exercise of power to part with the privilege. 3
The majority view further held that, a citizen has no fundamental right to trade or
business in liquor as a beverage and the act ivities which are "res extra commercium"
cannot be carried on by any citizen and the State can prohibit completely trade or
business in potable liquor and the State may also create monopoly in itself for trade or
business in such liquor. Trade in liquor can also be regulated even though tax or fee are
imposed on purchase and sale and income derived from such liquor. The State has the
exclusive right or privilege to grant licence and impose reasonable restriction. 4
However, performing dance in a bar or permit room or eating houses cannot be
prohibited on the ground that performance also is part of prohibited trade. The doctrine
of 'res extra commercium' has no application in the case of a dance performance. 5
In Krishan Kumar Narula v. State of J&K .,6 the Supreme Court refused to countenance
the argument that dealing in noxious and dangerous goods like liquor was dangerous to
the community and subversive of its morals and therefore not a "trade". The Court
refused to accept the argument holding that acceptance of such a broad argument
"involves the position that meaning of the expression "trade or business" depends upon
and varies with the general acceptance of the standards of morality obtaining at a
particular point of time in our country". It was observed that while standards of morality
could afford guidance to impose restrictions, they could limit the scope of the right. The
morality or illegality or otherwise of a deal would not affect the quality or character of the
activity that it might be a ground for imposing a restriction on the act ivity.
In Nashirwar v. State of M.P .,7 it was held that there is no fundamental right to trade in
liquor because of reasons of public morality, public interest and harmful and dangerous
character in liquor. The court ruled that there is "police power" of the State to enforce
public morality to prohibit trade in noxious and dangerous goods and emphasis was
placed on Art. 47 of the Directive Principles of State Policy.
In State of A.P. v. Mc.Dowell ,8 it was held that "even if" trade in liquor comes within the
purview of Art. 19(1)(g), still the State could impose severe restrictions or even
prohibition on such trade. Imposing restriction or prohibition on liquor trade is justified
under Art. 47 and presumed to be reasonable.
In Khoday Distilleries Ltd. v. State of Karnataka ,9 the Supreme Court has summarised
the law on the subject relating to freedom of trade or business in potable liquor. It is
better that the same is extracted in full.
27. The rights protected by Art. 19(1) are not absolute but qualified. The
qualifications are stated in Clauses (2) to (6) of Art. 19. The fundamental rights
guaranteed in Art. 19(1)(a) to (g) are, therefore, to be read along with the said
qualifications. Even the rights guaranteed under the Constitutions of the other
civilized countries are not absolute but are read subject to the implied limitations
on them. Those implied limitations are made explicit by Clauses (2) to (6) of Art.
19 of our Constitution.
27. The right to practice any profession or to carry on any occupation, trade or
business does not extend to practising a profession or carrying on an occupation,
trade or business which is inherently vicious and pernicious, and is condemned
by all civilized societies. It does not entitle citizens to carry on trade or business in
activities which are immoral and criminal and in articles or goods which are
 648

obnoxious and injurious to health, safety and welfare of the general public, i.e.,
res extra commercium (outside commerce). There cannot be business in crime.
16. Potable liquor as a beverage is an intoxicating and depressant drink which
is dangerous and injurious to health and is, therefore, an article which is res extra
commercium being inherently harmful. A citizen has, therefore, no fundamental
right to do trade or business in liquor. Hence the trade or business in liquor can be
completely prohibited.
10. Article 47 of the Constitution considers intoxicating drinks and drugs as
injurious to health and impeding the raising of level of nutrition and the standard
of living of the people and improvement of public health. It therefore, ordains the
State to bring about prohibition of the consumption of intoxicating drinks which
obviously include liquor, except for medicinal purposes. Article 47 is one of the
directive principles which is fundamental in the governance of the country. The
State has, therefore, the power to completely prohibit the manufacture, sale,
possession, distribution and consumption of potable liquor as a beverage, both
because it is inherently a dangerous article of consumption and also because of
the directive principle contained in Art. 47, except when it is used and consumed
for medicinal purposes.
5. For the same reason, the State can create a monopoly either in itself or in
the agency created by it for the manufacture, possession, sale and distribution of
the liquor as a beverage and also sell the licences to the citizens for the said
purpose by charging fees. This can be done under Art. 19(6) or even otherwise.
2. For the same reason, again, the State can impose limitations and
restrictions on the trade or business in potable liquor as a beverage which
restrictions are in nature different from those imposed on the trade or business in
legitimate act ivities and goods and articles which are res commercium. The
restrictions and limitations on the trade or business in potable liquor can again be
both under Art. 19(6) or otherwise. The restrictions and limitations can extend to
the State carrying on the trade or business itself to the exclusion of and
elimination of others and/or to preserving to itself the right to sell licences to do
trade or business in the same, to others.
2. When the State permits trade or business in the potable liquor with or
without limitation, the citizen has the right to carry on trade or business subject to
the limitations, if any, and the State cannot make discrimination between the
citizens who are qualified to carry on the trade or business.
2. The State can adopt any mode of selling the licences for trade or business
with a view to maximize its revenue so long as the method adopted is not
discriminatory.
20. The State can carry on trade or business in potable liquor notwithstanding
that it is an intoxicating drink and Art. 47 enjoins it to prohibit its consumption.
When the State carries on such business, it does so to restrict and regulate
production, supply and consumption of liquor which is also an aspect of
reasonable restriction in the interest of general public. The State cannot on that
account be said to be carrying on an illegitimate business. It carries on business
in products which are not declared illegal by completely prohibiting their
production but in products the manufacture, possession and supply of which are
regulated in the interests of health, morals and welfare of the people. It does so
also in the interests of the general public under Art. 19(6).
2. The mere fact that the State levies taxes or fees on the production, sale and
income derived from potable liquor whether the production, sale or income is
legitimate or illegitimate, does not make the State a party to the said activities.
The power of the State to raise revenue by levying taxes and fees should not be
confused with the power of the State to prohibit or regulate the trade or business
in question. The State exercises its two different powers on such occasions.
Hence, the mere fact that the State levies taxes and fees on trade or business in
 649

liquor or derives income from it, does not make the right to carry on trade or
business in liquor a fundamental right, or even a legal right when such trade or
business is completely prohibited.
2. The State cannot prohibit trade or business in medicinal and toilet
preparations containing liquor or alcohol. The State can, however under Art. 19(6)
place reasonable restrictions on the right to trade or business in the same in the
interests of general public.
2. Likewise, the State cannot prohibit trade or business in industrial alcohol
which is not used as a beverage but used legitimately for industrial purposes. The
State, however, can place reasonable restrictions on the said trade or business in
the interests of the general public under Art. 19(6) of the Constitution.
2. The restrictions placed on the trade or business in industrial alcohol or in
medicinal and toilet preparations containing liquor or alcohol may also be for the
purposes of preventing their abuse or diversion for use as or in beverage.

In Secretary to Government of Tamil Nadu v. K. Vinayagemurthy ,10 it was held that,

"although" no citizen can claim any inherent right to sell intoxicating liquor by retail, any
restriction placed by the State on such sale, held, must be reasonable within the
meaning of Art. 19(6). It was further held that reasonableness would differ from trade to
trade and no hard and fast rule concerning alls the trades can be laid down. Similar
observation, made in Khoday Distilleries Ltd. v. State of Karnataka ,11 was relied on to
contend that only because there is a fundamental right for trade in liquor, Art. 19(6)
empowers the government to impose reasonable restriction. In the case State of A.P. v.
Mc.Dowell & Co .,12 it was made clear in that case, no such argument can be accepted
since it is settled that a citizen has no fundamental right to trade in intoxicating liquors
(para 39).13
Article 47 is one of the directive principles of State policy which is fundamental in the
governance of the country and the State has the power to completely prohibit the
manufacture, sale, possession, distribution and consumption of liquor as a beverage
because it is inherently dangerous to human health. Consequently, it is the privilege of
the State and it is for the State to decide whether it should part with that privilege which
depends on the liquor policy of the state. The State has, therefore, the exclusive right to
privilege in respect of potable liquor. A citizen has therefore no fundamental right to trade
or business in liquor as a beverage and the act ivities which are 'res extra commercium'
cannot be carried on by any citizen and the State can prohibit completely trade or
business in potable liquor and the State can also create a monopoly in itself for the trade
or business in such liquor. The legal position is well settled. The State can also impose
restrictions and limitations on the trade or business in liquor as a beverage which
restrictions are in nature different from those imposed on trade or business in legitimate
activities and goods and articles which are res commercium,14 following the decision in
Vittal Dathatralya Kulkarni v. Shamrao Tukaram Power ;15P.N. Kaushal v. UOI ;16Krishna
Kumar Narula v. State of J & K ;17Nashiwar v. State of MP ;18State of AP v. McDowell &
Co .;19Khoday Distilleries v. State of Karnataka .20
It was also held in the Kandath Distilleries case that liquor policy of the State is
synonymous or closely associated with the policy of the dealing with liquor or such
obnoxious subjects. Monopoly in the trade of liquor is with the State and it is only a
privilege that a licensee has in the matter of manufacturing and vending in liquor. 21
Courts are also not expected to express their opinion as to whether at a particular point
of time or in a particular situation any such policy should have been adopted or not. The
Court also said that when parting of privilege is completely a discretion which is not
coupled with duty there is no duty cast on the authorities to grant licence to establish
distillery and no right is conferred on the citizen to claim it as of right. The State can
always adopt a "restriction policy" e.g., reducing the number of licences in a particular
district or a particular area or not to grant a licence in a particular district even in cases
 650

where the applicant has satisfied all the conditions stipulated in the rule and the policy
permits granting of licences. Merely because an applicant has satisfied all conditions as
per rules or policy, he is not entitled to get a licence. In such cases, court also cannot
issue a writ of mandamus directing the State to issue a licence. Court also said that
when the State decides to grant the right or privilege to others, it cannot escape the
rigour of Art. 14, i.e., it cannot act arbitrarily. In such a situation, it is for the party who
complains to establish that a discriminatory treatment has been meted out to him as
against similarly placed persons, but at the same time cannot demand a licensee to
establish a distillery unit as a matter of right.
Since, the State has the exclusive right or privilege in respect of potable liquor, it can
charge any reasonable expense or even consideration for permitting such act ivity by
grant of licence and the licences are bound to comply with all reasonable orders as
undertaken by them while obtaining licence. The establishment charges are in the nature
of price for parking with the privilege to permit manufacture and sale of liquor and the
privilege exclusively vests with the Government.22
34.  The State is competent to prohibit23 its manufacture or sale24 altogether or to
permit it only under a licence taken from the specified authority. 25
22.  Such restriction may extend to medicinal and toilet preparations which are
capable of being used as an intoxicant.26
11.  Government can charge a fee for granting the exclusive privilege of selling
foreign liquor.27
Labour, regulation of

31.  An early illustration of this proposition in the sphere of business and calling
was offered by a case which related to the business of manufacture of bidis (indigenous
cigars) by manual labour. No doubt, the regulation of employment of agricultural labour
in the manufacutre of bidis during the agricultural season is a restriction in the interests
of the general public, but the language employed by the statute was wide enough to
cover restrictions both with and without the limits of the constitutionally permissible
legislative action affecting the right inasmuch as the law prevented the employment in
the bidi manufacture even of persons disabled from ploughing or of persons indented
form outside the area in question. Such restriction was out of proportion with the object
of the measure, namely 'Grow more Food campaign'. Hence, the impugned provision
was struck down as wholly void.28
A legislation for the benefit or welfare of labour and which fastens liability on the person
who himself engages labour or the person for whom and on whose behalf labour is
engaged or where a person has ultimate control over the affairs of the establishment and
fixes direct responsibility are constitutionally valid and do not impose any unreasonable
restriction on the manufacturer or trade mark holder of beedi. By fixing the liability, there
is no restriction on the right of the manufacturer or trade mark holder to carry on
business.29
35.  The prevention of exploitation of labour and the employment of sweated
labour is essential in an under developed country like India. Hence, the fixing of
minimum wages must be considered to be a reasonable restriction in the public interest
even though, in fixing the minimum the capacity of the employer is not taken into
consideration, and the minimum so fixed may cause hardship to individual employers. 30
23.  In the interest of the health of the worker, the reasonableness of the
regulation of working days and hours in commercial establishment 31 has similarly been
upheld, with incidental provisions to prevent evasion.
12.  The extension of the provisions of the Factories Act , or the exclusion
thereof, to workers in establishment similar to factories32 for the safety of the workers,
have similarly been upheld as reasonable.
 651

In the case of social security legislation, courts must not countenance any subterfuge which would
defeat the provision of 'social legislation'. The Court must, even if necessary, strain the language of
the Act in order to achieve the purpose which the Legislature had in placing the legislation on the
statute book. The Court said that the legislation, 'Employees State Insurance Act ', must receive a
liberal construction so as to promote its objects.33
The Supreme Court, while dealing with the validity of the Building and other Construction Workers
(Regulation and Employment and Conditions of Service) Act, 1996 said that the legislation is intended
as a social security measure for the benefit of building and other construction workers directly
relatable to their constitutionally recognised right to live with basic human dignity, enshrined in Art. 21
of the Constitution read with Arts.42, 38 and 39. The Act was held valid. 34
[See also under 'Industrial Relations', ante.].
Licensing

32.  Under Sections 8 of the Cinematograph Act , 1918, the District Magistrate
imposed, inter alia, the following conditions in the licence granted to the Appellant, the
owner of a cinema concerned:
28. The licensee should exhibit at each performance one or more of approved
film of such length and for such length of time as the Provincial or Central
Government may direct.
28. The licensee should exhibit at the commencement of the performance not
less than 2,000 feet of one or more approved films.
Held, that both the above conditions amounted to 'unreasonable' restrictions upon
the fundamental right guaranteed to the Appellant under Art. 19(1)(g), and were,
accordingly, void. The first condition gives an absolute and unfettered discretion
to the Government, without imposing any limitation as to the nature of the film or
the duration of the time during which the licensee would be obliged to exhibit an
'approved film', nor does it offer any guide as to how the Government is to
exercise its discretion. The second condition is better in no way since it imposes
the minimum length of the approved film to be exhibited, but, not the maximum.
Hence, the discretion of the authority is as unfettered as in the case of condition
(a).35
However, where a large percentage of population is illiterate and has very limited
access to knowledge, information and ideas, it is important that such knowledge,
and information is disseminated to the vast volume of population in a manner
which will ensure that the ideas and information are in fact conveyed to them, and
they can assimilate and debate these ideas before accepting or rejecting them.
Requiring an entertainment medium like cinema theatre to show for a short
duration of its programme, films which educate and impart education cannot be
considered as unreasonable restriction on the right to carry on business. 36

36.  On the other hand--

21. For the purpose of ensuring payment of a tax, a law may, reasonably
provide for the cancellation of the registration of a dealer, even though such
restriction may result in the extinction of his business. 37
19. The State may impose conditions for the entry into business, having regard
to the importance of the business in the national economy, e.g., the membership
of a stock exchange, or the business of import or export. 38 A reduction in the
import quota of licensee, in accordance with the import policy of the Government,
and after giving an opportunity to the licensee to be heard, cannot be said to be
unreasonable.39
14. A provision under Cycle Rickshaw Byelaws framed under Delhi Municipal
Corporation Act that licences could be issued only to the owners who are actual
 652

rickshaw pullers is apparently done to prevent exploitation of rickshaw pullers by

the owners of rickshaw pullers. It was held that such a condition is imposed in
public interest.40
Though cinema theatre is a private property of the owner, but exhibition of films
involves public interest, while imposing condition of licence, the licensing authority
can classify the number of seats and also fix the rates for admission. The owner
has no unrestricted power to fix the rates. Classification of seats and fixation of
rules of admission have direct and inevitable effect on public welfare. Fixation of
rates does not have the inevitable effect to drive out the licensee from his trade or
business. It assures orderly exercise of right to trade or business or avocation or
occupation.41
An uncontrolled and unguided power or discretion to grant or refuse to grant
licences entrusted on local controller was held invalid since amounts to
unreasonable restriction of right to trade or business. 42
A provision conferring wide powers to grant or cancel a licence as an
administrator, without mentioning the grounds on which he could exercise the
power is held to be unreasonable.43The only safeguard against improper exercise
of power was that the licensing officer would record reasons for the act ion taken
by him. This was not regarded as an effective safeguard as there was no higher
authority to examine the propriety of these reasons and to review or revise the
decision and reasons recorded by him were then only for his own subjective
satisfaction and not for furnishing any remedy to the aggrieved person.
A licence issued by the US Government cannot be accepted in India for driving
motor vehicles in view of the fact that road and traffic conditions in India are
different from USA. A person holding a licence in USA will be considered as a
person having no licence to drive motor vehicle in India. 44

[See, further, under 'reasonableness of permits and licences,' post].

Money lending, gambling, etc.
Money lending to poor villagers has been held to be not a trade and commerce as it is exploitation of
the village people. Such an activity has been held as "anti-socialist, usurious, and unscrupulous". It is
not a trade under Art. 19(1)(g).45 But, on the other hand, money lending amongst commercial
community is trade as it is an integral part of trade and commerce. 46
The restrictions placed on financial act ivities of unincorporated bodies and prohibiting such bodies
from accepting public deposits for the purpose of money lending business was held valid. It was held
that there cannot be a fundamental right to carry on the business of financing with other people's
money. There can be no unrestricted fundamental right to accept deposits from the public. It was
observed that there is no restriction on their freedom when the same can be done by their money or
from the finances advanced by their near relations or from financial institutions. Even if the restriction
amounts to total prohibition, it was held that the same was in public interest. 47 Limiting the number of
depositors that can be accepted by an individual, firm or unincorporated association for the purpose of
money lending business was held reasonable. It was held that a ceiling for acceptance of deposits
and to require maintenance of certain liquidity of funds as well as not to exceed borrowings beyond a
particular percentage of net owned assets is necessary to safeguard the depositors. 48 It was further
held that the provision for refund of excess deposit within a period of two years is valid.
Loans at usurious rates are categorised as anti-social and reprehensible. It was held that every
systematic profit oriented activity, however, sinister and socially diabolic cannot exalt itself into a
trade.49
The creditworthiness of the Residuary Non-Banking Companies receiving deposits for the purpose of
their business would be sensitive. It thrives on the confidence of the public, on the honesty of its
 653

management, and its reputation of solvency. Whether, an impugned provision imposing a fetter on the
exercise of fundamental right guaranteed under Art. 19(1)(g) amounts to a reasonable restriction
imposed in the interest of general public, must be judged not in the background of any theoretical
standard or pre-determinate patterns, but in the light of the nature and the incidence of the right, the
interest of the general public sought to be secured by imposing restrictions and the reasonableness of
the quality and the extent of the fetters imposed by the restriction. If the business of the Non-Banking
Companies is detrimental to the interest of depositors, the Reserve Bank of India, which is a banking
Bank, has the power to issue direction to protect the interest of depositors which the company is
bound to implement. The directions of RBI, which amount to restrictions, though apparently harsh in
form, in its systematic working, would inculcate discipline in the business management, subserve
public confidence in the ability of the company to honour its contractual liability and assure due
payment at maturity of the amount deposited together with interest, without any impediment. Such
directions are reasonable restrictions under Art. 19(6). 50 A total ban on prize-chit scheme was held
valid since, it is speculative.51
In the Srinivasa Enterprises case52it was held that prize-chits serve no social purpose, but are
prejudicial to the public interest as they exploit the poor people and so they can be totally banned.
Prize competitions involving substantial skills are regarded as business act ivities. On the other hand,
a prize competition which is of a gambling nature would not fall within the protection of Art. 19(1)(g). 53
Regulation or restriction imposed in the conduct of chits was held to be reasonable, i.e., enacted with
a view to avoid fraud on subscribers for delaying payment by the foreman. 54 Regulations prescribing
procedure of service of printed catalogue, i.e., procedure to auction pawned articles if not redeemed
was held to be valid as it is framed keeping in view the public interest and inasmuch as the interest of
the power.55
There is no fundamental right to trade or business in lottery. There are three ingredients in the sale of
lottery tickets: (1) prize, (2) chance and (3) consideration. When one purchases a lottery ticket, he
purchases for a prize which is by chance and the consideration is the price of the ticket. The holder of
such a ticket knows that the consideration which he has paid may be for receiving nothing. This
element of chance makes lottery or gambling. Even if the State conducts the lottery, the same element
of chance is continuing and there is no element of skill. It remains within the boundaries of gambling. 56
Gambling activities, from their very nature and in essence are "extra commercium," although, the
external forms, formalities and instruments of trade may be employed. It is not protected by Art. 19(1)
(g) or 301 of the Constitution.57
No one can claim fundamental right in smuggled goods58 and no one has a right to sell adulterated
foodstuffs.59 In re. Sant Ram,60 the court held that the occupation of a "tout" is not a business or
occupation protected under Art. 19(1)(g) since, the occupation has a corrupting influence on the
administration of justice.
In T.K. Abraham v. State of Travancore-Cochin ,61 the Court held that tobacco was deleterious as liquor
and hence, there was no fundamental right to carry on trade in it.
Cultivation of 'poppy' could be prohibited, where there was evidence that cultivators conveyed opium
and its derivatives beyond the frontiers of the country. 62
Marketing, control of

58i)  Marketing legislation which seeks to enable producers to get a fair price for
the commodities by eliminating middlemen and providing a regulated market, cannot be
said to impose unreasonable restrictions on the citizens' right to do business unless it is
clearly established, that the provisions are too drastic and in excess of the object to
achieve which it was enacted.63
A legislation prohibiting commission agents exploiting their dominant position and to
make illegal and excessive gains at the cost of producers and to protect innocent
agriculturists who bring their produce to the market areas from the hands of commission
agents is valid being in the interests of general public. 64
 654

Statute regulating markets not only protects interests of agriculturists, but also those of
traders. It was held that marketing of agricultural produce is not confined to first
transaction of sale by the producer to the trader, but most necessarily include all
subsequent transaction in the course of movement of the commodity into the ultimate
hands of the consumer, so long as the commodity retains the character of agricultural
producer.65
When a legislation is passed for the purpose of better regulation of the
purchase/sale/storage and processing of agricultural produce and establishment of
markets for agricultural produce in the State, the State will be within its rights to prohibit
unauthorised markets within the notified area and such an act ion is necessary for
proper regulation or monitoring of sale in the notified market area. 66 A provision imposing
obligation on the tender to provide storage space in the market area to the producers for
their agricultural produce is not unreasonable.67 It was further held in that case that the
provision for sale by open auction so that producers may get best price for their
commodity is also not unreasonable.
A policy decision taken to shift a wholesale vegetable and fruit market from the city limits
to the outside city limits due to traffic congestion, pollution and diseases was held to be a
reasonable restriction.68
53ii)  It cannot be held to be excessive or unreasonable merely because a power
is given to the administrative authority to bring within the scope of the Actany crops
within the definition of 'commercial crops', by amending the Schedule; 69 or because it
seeks to control also produce grown outside the 'market area', if such incidental control
is necessary to make the legislation effective;70 or because it directs sale by public
auction, prohibiting private sales by the producers; 71 or because it imposes restrictions
as to the place where a particular commodity may be sold. 72
But even where the law of marketing is valid, a notification or order issued under it shall fail, if its terms
are unreasonable.73
The Supreme Court has held in a number of cases that the Agricultural Produce Markets Act does not
violate Art. 19(1)(g).74
Monopolies
Since a monopoly prima facie constitutes a restriction upon the freedom of every citizen to enter into
and carry on any business or trade, control of monopolistic practices in the public interest must be
held to be reasonable.75
The Constitution was amended incorporating sub-clause (ii) to Clause (6) of Art. 19 in 1951. As per the
amendment, a law relating to the creation of State monopoly should be presumed to be in the interest
of general public. Akadasi Padhan v. State of Orissa ,76 though it has no retrospective effect.77 The
newly incorporated sub-clause (6) of Art. 19 enables the State to create monopoly in its favour or a
corporation owned or controlled by it, to the exclusion of citizens, competely or partially 78
subordinating, thus, the right of the citizens to carry on the trade or business to the right of the State to
trade.79 This sub-clause was added to the Constitution by the First Amendment 1951 to negate the
effect of the decision of the Allahabad High Court in Motilal v. State of UP ,80 which had defeated the
policy of nationalisation of Road Transport Services initiated by the Uttar Pradesh Government. Prior
to the amendment, the State monopoly was subject to the twin test of "reasonableness" and "public
interest". What is the effect of amendment was explained in Saghir Ahmed v. State of UP .81 The Court
said: "The new clause in Art. 19(6) has no doubt been introduced with a view to provide that a State
can create monopoly in its favour in respect of any trade or business, but the amendment does not
make the establishment of such monopoly a reasonable restriction within the meaning of first clause of
Art. 19(6). The result of the amendment is that the State would not have to justify such action as
reasonable at all in a court of law and no objection could be taken to it on the ground that it is an
infringement of right guaranteed under Art. 19(1) of the Constitution. In that case, monopoly was
created in favour of State under the UP State Road Transport Act ; a legislation which was passed
earlier to Constitutional amendment. The order of nationalisation was also prior to the amendment.
 655

The Supreme Court refused to give retrospective effect to the amendment to validate the action of the
Government. On the other hand, applying the test of reasonable restriction and public interest, it
declared that the State law violated Art. 19(1)(g) and was not protected by clause (6) as it stood at the
time of the enactment and as such the Act was declared void under Art. 13(2) of the Constitution.
The first amendment had the effect of revivification on a pre-constitutional law. In Bhikaji Narain
Dhakras v. State of MP ,82under the Central Province and Berar, Motor Vehicles (Amendment) Act,
1947, an existing law when the Constitution came into force. This had created a monopoly in favour of
the State by authorising it to exclude all private transport operators from the business of transport.
Part of the Act became void under Art. 13(1) after the Constitution came into force to the extent of its
inconsistency i.e., to the extent that they were inconsistent with the fundamental rights to trade or
business under Art. 19(1)(g). The Act, however, remained operative vis--vis the non-citizens. But after
the First Amendment was enacted into the Constitution, the impediment having been removed, the
dormant part of the Act was held by the court to have become revivified and ceased to be
unconstitutional.
As said earlier, in the Saghir Ahmed case above, the court categorically ruled that the amendment did
make the establishment of monopoly as a reasonable restriction, and at the same time the State
would not have to justify such action as reasonable at all in a court of law. In Akadasi Pradhan v. State
of Orissa ,83 it was observed that the amendment clearly indicated that State monopoly in respect of
any trade or business must be presumed to be reasonable and in the interest of the general public.
The Court adopted a liberal approach to the problem relating to clause (6). The purpose of
amendment according to court was only to clarify the intent of the framers of the Constitution who had
assumed that State monopoly would fall under and be protected by clause (6) as it originally stood on
the assumption which was rendered invalid by judicial decision. It was thus thought necessary to
clarify the intention by making the amendment.
Another important point settled by the court in the above case was that when the State carries on any
trade or business or industry it must carry it either departmentally or through its officers. But where it is
inexpedient to do so, the State might employ the service of agents provided they work on behalf of the
State and not for themselves. The word 'agent' in clause 19(6)(ii) could not be extended to mean it in
any commercial sense and that any agreement entered into by a person with a government which
permitted him to carry on the trade substantially as his own under which neither he has made himself
accountable nor was the State responsible for his act ion could not be upheld. Such an agreement
was declared wholly inconsistent with the requirement of s. 3(1)(c).
The test laid down in Akaderi Pradhan and Vrajlal Manilal & Co.'s case was further affirmed in Rustom
Cavasjee Cooper v. UOI ,84 where the court by majority said that basic and essential provisions of law
were not exposed to challenge that they impaired the guarantee under Art. 19(1)(g) whether, the
citizens were excluded completely or partially from carrying on that trade. However, restrictions which
were incidental or subsidiary to the carrying on of State trade must satisfy the test of main limb. 85
In H.C. Narayanappa v. State of Orissa ,86 the court observed that Art. 19(6) was a mere saving
provision. Its function is not to create a power, but to immunize from attack, the exercise of power
falling within its ambit. The right of State to carry on trade to the exclusion of others did not arise by
virtue of Art. 19(6). The above view was further affirmed in Kondala Rao v. AP State Road Transport
Corpn .87
Article 19(6) has also been interpreted to permit the scope of State trade and competition with any
citizen. It was held that under Art. 19(6) the State may carry on any business either as a monopoly
complete or partial or in competition with any citizen and that would not have the effect of infringing
any fundamental right.88
Article 19(1)(g) does not guarantee a monopoly to a particular individual or association to carry on any
occupation and of other persons are also allowed the right to carry on the same occupation, and an
element of competition is introduced in business that does not in the absence of bad faith on the part
of the authorities amount to a violation of Art. 19(1)(g). Competition in trade or business is not
derogatory of the right.89
 656

'Monopoly', as contemplated under Art. 19(6) of the Constitution is something to the total exclusion of
others. The creation of a small captive market in favour of State-owned undertaking out of a larger
market can hardly be termed as creation of monopoly as contemplated under Art. 19(6) of the
Constitution.90 A monopoly cannot be created as a cloak for conferring private benefit on a limited class
of persons, nor can a monopoly right be conferred on a citizen. It was held that the validity of a law by
which the State assumed the monopoly to trade in a given community, has to be judged by the test of
whether, the entire benefit arising therefrom, is to enure to the State and the monopoly is not used as
a cloak for conferring private benefit upon limited class of persons. 91
Giving preference to co-operative societies in the matter of allotment of fair price shops was held as
"not creating monopoly". It was held, "Co-operative societies play positive and progressive role in the
economy of our country and most surely, in the fair and effective distribution of essential articles of
food. There certainly was a reasonable classification and a nexus with the object intended to be
achieved, which was a fair and assured supply of rations to the consumer. The fundamental right to
traders like the petitioner to carry on business in foodstuffs was in no way affected. They could carry
on foodstuff without hindrance as dealers. No one could claim a right to run a fair price shop as an
agent of the government. All that he could claim was a right to be considered to be appointed as an
agent of the government to run a fair price shop. If the government took a policy decision to prefer
consumer's co-operative societies for appointment as their agents, to run fair price shops, in the light
of frustrating and unfortunate experience gathered in last two decades, there could be no
discrimination.92
Similarly favourable treatment of public sector organisation particularly the ones dealing in essential
commodities or services are not discriminatory.93
When notice inviting tender is open to response by all and even if one single manufacturer is
ultimately selected for a region or State, it cannot be said that the State has created a monopoly
business in favour of a private party. 94 Though the Supreme Court upheld the Scheme for awarding
contract for high security registration plates in that case, the decision does not prevent the State from
changing its policy due to changed circumstances. The Government has discretion to adopt a different
policy to serve public interest and make it more effective. However, a change of policy must be in
conformity with the Wednesbury reasonableness and free from arbitrariness, irrationality, bias and
malice.95
1 Har Shankar v. Dy. Excise Commr., AIR 1975 SC 1121 : (1979) 3 SCC 212; Kaushal v. Union of India, AIR 1978 SC
1457 : (1978) 3 SCC 558; Sat Pal v. Lt. Governor, AIR 1979 SC 1550 (1557) : (1979) 4 SCC 232; State of M.P. v.
Nandalal, AIR 1987 SC 251 : (1986) 4 SCC 566 (para. 32).

2 State of Kerala v. Kandath Distillers, AIR 2013 SC 1812 : (2013) 6 SCC 573.

3 State of Punjab v. Devans Modern Breweries Ltd. (2004) 11 SCC 26.

4 State of Bihar v. Nirmal Kumar Gupta, AIR 2013 SC 993 : (2013) 2 SCC 565.

5 State of Maharashtra v. Indian Hotel & Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519; see alsoAnuj
Garg v. Hotel Assn. of India, AIR 2008 SC 663 : (2008) 3 SCC 1.

6 Krishan Kumar Narula v. State of J&K., AIR 1967 SC 1368 : (1967) 3 SCR 50.

7 Nashirwar v. State of M.P., AIR 1975 SC 360 : (1975) 1 SCC 29.

8 State of A.P. v. Mc.Dowell, AIR 1996 SC 1627 : (1996) 3 SCC 709.

9 Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574.

10 Secretary to Government of Tamil Nadu v. K. Vinayagmurthy, AIR 2002 SC 2968 : (2002) 7 SCC 104.

11 Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 : (1994) Supp (4) SCR 477 (supra).

12 State of A.P. v. Mc.Dowell & Co., (1996) 6 SCC 709 : AIR 1996 SC 1627 (supra). See alsoBihar Distillery v. UOI,
(1997) 2 SCC 727 : AIR 1997 SC 1208.

13 See alsoUgar Sugar Works Ltd. v. Delhi Administration, AIR 2001 SC 1447 : (2001) 3 SCC 635.
 657

14 SeeState of Kerala v. Kandath Distilleries, AIR 2013 SC 1812 : (2013) 6 SCC 573 (supra).

15 (1979) 3 SCC 212.

16 (1978) 3 SCC 558.

17 AIR 1967 SC 1368.

18 (1975) 1 SCC 29.

19 (1996) 3 SCC 709 : AIR 1996 SC 1627.

20 (1995) 1 SCC 574 : 1994 Supp (4) SCR 477.

21 State of Maharashtra v. Nagpur Distilleries, (2006) 5 SCC 112 : AIR 2006 SC 1987.

22 Govt. of Maharashtra v. Deokar's Distillery, (2003) 5 SCC 669.

23 Har Shankar v. Dy. Excise Commr., AIR 1975 SC 1121 : (1979) 3 SCC 212; Kaushal v. Union of India, AIR 1978 SC
1457 : (1978) 3 SCC 558; Sat Pal v. Lt. Governor, AIR 1979 SC 1550 (1557) : (1979) 4 SCC 232; State of M.P. v.
Nandalal, AIR 1987 SC 251 : (1986) 4 SCC 566 (para. 32).

24 Cooverjee v. Excise Commr., AIR 1954 SC 220 : 1954 SCR 873.

25 Southern Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863 : (1981) 4 SCC 391 (para s. 18-21).

26 Southern Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863 : (1981) 4 SCC 391 (para s. 18-21).

27 State of U.P. v. Synthetics Ltd., AIR 1980 SC 8.

28 Chintamanrao v. Madhya Pradesh, (1950) SCR 759 : AIR 1951 SC 118.

29 Mangalore Ganesh Beedi Works v. Union of India, (1974) 4 SCC 43 : AIR 1974 SC 1832 : (1974) 1 LLJ 367.

30 Unichoyi v. State of Kerala, AIR 1962 SC 12 (17) : (1962) 1 SCR 946.

31 Manohar Lal v. State of Punjab, AIR 1961 SC 418 : (1961) 2 SCR 343; Manohar Lal v. State, AIR 1951 SC 315
(316) : 1951 SCR 671; Ramdhandas v. State of Punjab, AIR 1961 SC 1559 (1563) : (1962) 1 SCR 852.

32 Bhikusa v. Union of India, AIR 1963 SC 1591 (1597) : (1964) 1 SCR 860.

33 Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61 : (2009) 12 SCALE 138.

34 Dewan Chand Buildings & Contractors v. UOI, (2012) 1 SCC 101 : (2011) 13 SCALE 12.

35 Seshadri v. Dt. Magistrate, AIR 1954 SC 747 : (1955) 1 SCR 686.

36 Union of India v. Motion Picture Association, AIR 1999 SC 2334 : (1999) 6 SCC 150. See alsoMinerva Talkies v.
State of Karnataka, 1988 (Supp.) SCC 176; Brij Niwas Das v. Chief Commissioner, Ajmer, ILR (1958) 8 Rajasthan.
1076 and order in appeal Chief Commissioner, Ajmer v. Brij Niwas Das, AIR 1963 SC 408 : (1963) 2 SCR 145.

37 Rahaman v. State of A.P., AIR 1961 SC 1471 : (1962) 1 SCR 694.

38 Madhubhai v. Union of India, AIR 1961 SC 21 (26) : (1961) 1 SCR 191.

39 Ramchand v. Union of India, AIR 1963 SC 563 (566) : (1962) 3 SCR 72.

40 All Delhi Cycle Rickshaw Operators' Union v. Municipal Corpn. of Delhi, AIR 1987 SC 648 : (1987) 1 SCC 371.

41 Deepak Theatre v. State of Punjab, AIR 1992 SC 1519 : 1992 (Supp-1) SCC 684.

42 Dwaraka Prasad v. State of U.P. AIR 1954 SC 224 : (1954) SCR 803.

43 SeeDwaraka Prasad Laxmi Narain v. State of UP, AIR 1954 SC 224 : (1954) SCR 803.

44 State v. Sanjeev Nanda, AIR 2002 SC 3104 : (2012) 8 SCC 450.

 658

45 State of UP v. Kartar Singh, AIR 1964 SC 1135 : (1964) 6 SCR 659; see alsoPathumma v. State of Kerala, AIR
1978 SC 771 : (1978) 2 SCR 537.

46 Fateh Chand v. State of Maharashtra, AIR 1977 SC 1825 : (1977) 2 SCC 670.

47 Bhavesh D. Parish v. Union of India, AIR 2000 SC 2047 : (2000) 5 SCC 471. See alsoMs. S. Bagavathi v. State of
Tamil Nadu, (2007) 2 MLJ 526(FB) : AIR 2007 (NOC) 1147(Mad) .

48 T. Velayudhan Achari v. Union of India, (1993) 2 SCC 582 : (1993) 1 SCR 832.

49 Fateh Chand Himmatlal v. State of Maharashtra, AIR 1977 SC 1825 : (1977) 2 SCC 670 : (1977) 2 SCR 828.

50 Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, AIR 1992 SC 1033 : (1992) 2 SCC
343.

51 Srinivasa Enterprises v. Union of India, AIR 1981 SC 504 : (1980) 4 SCC 507.

52 Srinivasa Enterprises v. Union of India, AIR 1981 SC 504 : (1980) 4 SCC 507 (supra).

53 SeeState of Bombay v. R.M.D. Chamerbaugwala, AIR 1957 SC 699; RMDC v. UOI, AIR 1957 SC 628 : (1957) SCR
930.

54 Shriram Chits and Investment (P.) Ltd. v. Union of India, AIR 1993 SC 2063 : 1993 (Supp-4) SCC 226.

55 A. Giridhar Lal v. State of Tamil Nadu, (2000) 7 SCC 767.

56 B.R. Enterprises v. State of U.P., AIR 1999 SC 1867 : (1999) 9 SCC 700.

57 State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699 : (1957) SCR 874. See alsoKrishna Chandra v.
State of M.P., AIR 1965 SC 307 : (1964) 1 SCR 765.

58 Boota Singh v. State, AIR 1961 Punjab 21.

59 APG v. S.M. Associates, AIR 1971 SC 2346 : (1970) 2 SCC 71 : (1971) 1 SCR 166.

60 AIR 1960 SC 932 : (1960) 3 SCR 499.

61 AIR 1958 Ker 129(FB) .

62 Bahadur Singh v. UOI - an unreported judgment referred and followed in Balley Singh v. State, AIR 1967 All 341.

63 Arunachala v. State of Madras, AIR 1959 SC 300 : 1959 Supp (1) SCR 92. Sreenivasa v. State of A.P., AIR 1983 SC
1246 : (1983) 4 SCC 353 (para. 15). See alsoJan. Mohd. Noor Mohd. Baghan v. State of Gujarat, AIR 1966 SC 385 :
(1966) 1 SCR 515.

64 Karan Singh v. State of M.P., AIR 1986 SC 1506 : 1986 (Supp.) SCC 305. See alsoState of M.P. v. Galla Tilhan
Vyapari Sangh, AIR 1977 SC 2208 : (1977) 1 SCC 657.

65 Ramesh Chandra Kachardas Porwal v. State of Maharashtra, AIR 1981 SC 1127 : (1981) 2 SCC 722.

66 Chint Ram Ram Chand v. State of Punjab, (1996) 9 SCC 338 : AIR 1996 SC 1406.

67 Vishnu Dayal Mahendra Pal v. State of U.P., AIR 1974 SC 1489 : (1974) 2 SCC 306.

68 Mohd. Murtaza v. State of Assam, (2011) 12 SCC 413 : (2011) 5 LW 332.

69 Md. Hussain v. State of Bombay, AIR 1962 SC 97 (102) : (1962) 2 SCR 659.

70 Muhammadbhai v. State of Gujarat, AIR 1962 SC 1517 (1525; 1527) : 1962 Supp (3) SCR 875.

71 Vishnu Dayal v. State of U.P., AIR 1974 SC 1489 : (1974) 2 SCC 306 (para. 15).

72 Arunachala v. State of Madras, AIR 1959 SC 300 : 1959 Supp (1) SCR 92. Sreenivasa v. State of A.P., AIR 1983 SC
1246 : (1983) 4 SCC 353 (para. 15). See alsoJan. Mohd. Noor Mohd. Baghan v. State of Gujarat, AIR 1966 SC 385 :
(1966) 1 SCR 515.

73 Hegde v. Marketing Committee, AIR 1971 SC 1017 : (1971) 1 SCC 349.

 659

74 SeeMohammed Hussain v. State of Bombay, AIR 1962 SC 97 : (1962) 2 SCR 659; Mohammed Bhai v. State of
Gujarat, AIR 1962 SC 1517 : 1962 (Supp-3) SCR 875; Sreenivasa General Traders v. State of AP, AIR 1983 SC 1246 :
(1983) 4 SCC 353.

75 Rashid Ahmed v. Municipal Bd., AIR 1950 SC 163 (165).

76 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 (Supp-2) SCR 691. See alsoVrajlal Manilal & Co. v.
State of MP, AIR 1970 SC 129 : (1969) 2 SCC 248 : (1970) 1 SCR 400.

77 Saghir Ahmad v. State of U.P., AIR 1954 SC 728 : (1955) 1 SCR 707.

78 UOI v. Sri Landu Lal, AIR 1963 SC 1681 : (1964) 3 SCR 624.

79 Ramachandra v. State of Orissa, AIR 1956 SC 298 : (1956) SCR 28.

80 AIR 1951 Allahabad 257(FB) .

81 AIR 1954 SC 190 : (1954) SCR 371.

82 AIR 1955 SC 781 : (1955) 2 SCR 589.

83 AIR 1963 SC 1047 - supra.

84 AIR 1970 SC 564 : (1970) 1 SCC 248 : (1970) 3 SCR 530.

85 See alsoAmritsar Municipality v. State of Punjab, AIR 1969 SC 1100 : (1969) 1 SCC 475 : (1969) 3 SCR 447.

86 AIR 1960 SC 1073 : (1960) 3 SCR 742.

87 AIR 1961 SC 82 : (1961) 1 SCR 642.

88 Parbhani Transport Co-operative Society v. RTA, AIR 1960 SC 801 : (1960) 3 SCR 177.

89 Harman Singh v. RTA, Calcutta Region, AIR 1954 SC 190 : (1954) SCR 371. See alsoMithilesh Garg v. Union of
India, AIR 1992 SC 443 : (1992) 1 SCC 168.

90 Indian Drugs and Pharmaceuticals Ltd. v. Punjab Drugs Manufacturers Association, AIR 1999 SC 1626 : (1999) 6
SCC 247.

91 Rasbihari v. State of Orissa, AIR 1969 SC 1081: (1969) 1 SCC 414 : (1969) 3 SCR 374; see alsoState of Rajasthan
v. Mohan Lal, AIR 1971 SC 2068.

92 Sarkari Sasta Anaj Vikreta Sangh v. State of M.P., (1981) 4 SCC 471.

93 Oil & Natural Gas Commission v. Association of Natural Gas Consuming Industries of Gujarat, 1990 (Supp.) SCC
397. Also seeKrishnan Kakkanth v. Govt. of Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495; Hindustan Paper Corpn.
Ltd. v. Govt. of Kerala, (1986) 3 SCC 398.

94 Association of Registration of Plates v. Union of India, AIR 2005 SC 469 : (2005) 1 SCC 679. See alsoAir India Ltd.
v. Cochin, International Airport Ltd. (2000) 2 SCC 617 : AIR 2000 SC 801; Asia Foundation & Construction Ltd. v.
Trafalgar House Construction (I) Ltd., (1997) 1 SCC 738 : JT (1999) 2 SC 136.

95 Shimmit Utsch India (P.) Ltd. v. WB Transport Infrastructure Development Corpn. Ltd., (2010) 6 SCC 303 : (2010) 5
SCALE 617. The decision in Assn. of Registration of Plates (supra) was clarified.

Reservation of articles for the protection of handloom industry, to avoid unequal competition between
powerloom and handloom sectors, is not creation of a monopoly even though reservation of the
articles is for exclusive production of handloom industry. Further, the action is protected under Art s.
43 and 46 of the Constitution of India .1
[See, further, under Art. 19(6)(ii), post].
Motor Vehicles
 660

33.  A crop of cases have come up under the Motor Vehicles Act , 1939 and
1988.
37.  It has been held that there is no violation of Art. 19(1)(g) in relation to the
granting of permits--
22. If preference is given to a State undertaking as against private operators. 2
20. If rival operators are denied the opportunity of representing against the grant
of permit to other persons.3
15. If new competitors are introduced into the field. 4 A rule in the Motor Vehicles
Rules laying down a scheme for the evaluation of the merits of various applicants
for a stage carriage permit and giving preference to new entrants for short routes
is valid as it is salutary and avoids monopoly. 5
A restriction imposed on carrying luggage on roof of tourist vehicles is reasonable,
keeping in view the safety of passengers.6
9. If the termini of public service vehicles is altered for the convenience of the
travelling public.7
6. Traffic congestion and problem of pollution are rampant in towns. Under the
New Motor Vehicles Act , the power to place restriction on the number of permits
has been rendered more objective and made to flow from one stage to another. In
the City of Hyderabad permit for three wheels contract carriage has reached an
alarming figure. The restriction imposed in grant of three wheeled contract
carriage permits to a particular figure is not unreasonable. Imposition of such
restriction was treated as almost a statutory obligation. A measure taken in such
circumstances cannot be said to be unreasonable restriction under Art. 19(1)(g)
read with Clause (6) of the Constitution.8
The conditions imposed for registration of private tour operators for the need of
proper Haj arrangements was held valid. The Court said that the condition
imposed, will ensure that only genuine private tour operators can come forward
for registration.9

24.  Again, any provision which purports to be an implementation of Art. 39(b)-(c)

of the Constitution cannot be challenged as violative of Art. 19(1)(g). 10
Nationalisation
See under Cl. (6)(ii) post.
Pavement hawking
Controversy has been going on in India for some time as to the constitutional law relating to street
trading or hawking on pavements, which has caused an alarming problem in all big cities, making it
"impossible for the pedestrians to walk on footpaths or even on the streets property so-called". 11
Since, the controversy has led to conflicting decisions it would be useful to discuss the issues involved
separately:

29.  Peddlar, squatter, stall-holder

First of all, a distinction is to be made between a peddlar who moves about hawking his goods,
without occupying any particular site on the pavement (or footpath), and a person who occupies a
particular area of the pavement as a squatter without erecting any structure and a trader who erects a
permanent or quasi-permanent stall, without moving about.

31I.  Customary right and fundamental right

The English common law relating to street trading cannot be imported into India in toto, after 1950 for
the reason that England has no fundamental right and no provision such as Cl. (1)(g) and Cl. (6) of
Art. 19 of the Indian Constitution.
 661

In India is no longer necessary to rely on common law or custom to assert a right to carry on business,
since it is guaranteed by Art. 19(1)(g) as a fundamental right. Nor is it necessary for the Government
or local authorities to rely on common law to impose restrictions on that right, as Cl. (6) authorises the
State to impose any restriction which can be justified as to be necessary "in the interests of the
general public".
A. The right guaranteed by Art. 19(1)(g) against the State is to carry on a trade on all public places,
which includes a street or highway, subject, of course, to reasonable restrictions under Cl. (6).
The right of a hawker to transact business while going from place to place has been recognised for a
long period, subject to proper regulation. Street trading, whether as an itinerant vendor or hawker or
from a stationary position/receptacle/kiosk/footpath is a fundamental right guaranteed under Art. 19(1)
(g). But there is no fundamental right for a citizen to occupy a particular place in any street for the
purpose of engaging himself in "street trading". 12 The same principle was reiterated by the Supreme
Court wherein, it was held: "The rights under Art. 19(1)(g) are very broad. The hawkers and squatters
have a fundamental right to carry on business on the public streets, but the same should be regulated
as they are subject to reasonable restriction under Art. 19(6). The right of a hawker to transact
business, while going from place to place is recognised in India for a long period. The right of hawking
for carrying on business on the streets cannot be denied if they are properly regulated. The streets in
India are vested in the municipalities and they have to be used by the municipalities as trustees. The
hawkers' and squatters' or the vendors' right to carry on hawking under Art. 19(1)(g), which conflicts
with the rights of commuters to move freely and use the roads without any impediment under Art.
19(1)(d) must be harmonised and regulated by subjecting them to reasonable restriction only under a
law.13
The primary ground for such restriction in the case of highway or public road is that every member of
the public has the right to pass and repass along it. This right of the public stems from the theory that
a public street is dedicated for the use of the public. 14 It may also be created by a statute.
It follows that no individual can claim a fundamental right to erect a stall or other structure on a public
street or its pavement or footpath which obstructs the right of passage belonging to other members of
the community.
Even the Municipality or other local authority has no right to erect a structure on any portion of a public
street (except when necessary for its maintenance or user as a pathway) 15 or to let it to any person for
the purpose of trading or otherwise.16
The fundamental right to carry on a trade or business on a public property must be commensurate
with the nature of that property. Since a public road is meant for the passage of the public, while an
itinerant hawker may claim a fundamental right to vend his goods, without squatting on any particular
spot,17 nobody can claim any fundamental right to occupy any particular place on the pavement either
by squatting or erecting a stall, for the purpose of trading. 18
No person can be heard to say that he has a fundamental right to carry on street trading in a manner
which is bound to create insanitary and unhygienic conditions in the neighbourhood. 19
A scheme for benefitting street vending hawkers, squatters and tehbazari holders, it also serves a
public purpose. While preparing the scheme, convenience and interests of the public at large have to
be kept in view. To the extent possible, space should be made available to squatters or tehbazari
vendors without causing inconvenience to the general public. Transparency in the identification of
sites for street vending is required. The Court said that the width of the road and the availability of the
footpath for general public, after accommodating squatters have to be especially kept in mind, while
identifying the site. The Court said that in such places, cooking of food items should not be permitted
and no licence should be granted in a non-hawking area. 20
Policy decisions should be taken by the State as to the articles which could be permitted to be sold on
pavement as there are hawkers who sell extremely costly luxury articles including sophisticated
electronic goods imported or smuggled into the State and the municipal authority would be justified in
not extending any benefit or right in favour of such hawkers and the rights and benefits that would be
conferred upon by the State must be in favour of other hawkers dealing with other articles or things. 21
 662

'Street trading' is a recognised fundamental right. The right to carry on trade or business on the street
or on pavements, causing any hindrance to passers-by also extends to the Panchayat. Thus, the
order prohibiting the legal and legitimate act ivity of selling vegetables while moving from place to
place on push carts or carrying vegetable markets on their heads is violative of fundamental rights. 22
Hawking may not be permitted where due to narrowness of road, free flow of traffic or movement of
pedestrians is hindered or where for security reasons an area is required to be kept free or near
hospitals, places of worship, etc. There is no fundamental right to carry on hawking business under
Art. 21, nor any hawker has a fundamental right to do business at a particular place. The contention
that there can be no hawking zones on sides of major, trunk and arterial roads and should be
excluded therefrom automatically was not accepted by the Supreme Court. If without too much
hindrance to vehicular and pedestrian traffic hawking on such roads, hawking could be permitted. The
Court also imposed certain conditions or restrictions based upon which the hawkers shall do
business.23 If, by any scheme, any specific area is allotted to hawkers or squatters, they have to
confine their business to the area allotted and will not be entitled to any additional space. 24 In cases,
where it is found that squatting is illegal and eviction has been ordered, no direction could be given to
provide the squatters, sanitary facilities as an interim measure, i.e., till they are actually evicted.25
Even assuming that the fundamental right to carry on a trade extends to any spot on the pavement of
a public road, it cannot be overlooked that a trader who erects any stationary structure on the public
road thereby, becomes a trespasser and the appropriate authority may take all necessary act ions to
remove such structures or objects of a trespasser, as sanctioned by the law. 26
B. If, however, the pedlar does not settle at any particular spot on the highway, the State cannot
prohibit his business altogether, without providing hawking zones where a licence for hawking should
not be refused except for good reasons.27
Penal Proceedings
Penal proceedings must be fair, and the decision communicated to the person affected. 28
Price fixation

34.  The freedom of business of a trader to fix to his prices for the purpose of
making profit may be interfered with by the State, by imposing reasonable restrictions, in
order that the State may discharge its duties under the Directive Principles [Art s. 38 and
39(b)] to control the distribution of the material resources of the community for the
common good,29 and to ensure that the articles in question are available to the consumer
public at the minimum prices possible.30
38.  The Court may, however, interfere with such control if it is unreasonable,
and the standard of reasonableness varies for, (a) 'essential' commodities, and (b)
nonessential commodities (even though they may be called 'public utility' goods or
services).31
25.
29. Essential Commodities. Where the commodity is essential or vital to
human needs, the price may be fixed so low for the survival of the customer that it
may make it possible only for the most efficient manufacturers to carry on driving
away inefficient producers.32 Price fixation of molasses is essentially a matter of
economic policy and the same should not be subject-matter of challenge under
Art. 19(1)(g) of the Constitution, when the policy was fair and had been in force
for a long time.33
29. Where the commodity or service is needed by the consumer but that need is
not so vital, a greater consideration for the profit of the producer over his cost
should be given according to circumstances.
17. The foregoing standard is to be applied even where the trader is a public
undertaking or State enterprise:
 663

In the case of essential commodities or services, while private concerns must be

allowed a minimal return on the capital invested, public undertakings may even
have to run at losses if need be.
Where the fixation of price of an essential commodity is necessary to protect the
interests of consumers in view of the scarcity of supply, such restriction cannot be
challenged as unreasonable on the ground that it would result in the elimination of
middlemen for whom it would be unprofitable to carry on business at the fixed
rate34 or would not yield a fair return to the producer. 35
In such a situation, it may even be necessary to fix the price uniformly for the
whole industry on the basis of the cost of the most efficient manufacturer. 36
Price fixation is in the nature of a legislative function, eventhough, it may be
based on an objective criteria. It is imperative that the action of the authority
should be inspired by reason. The Government cannot fix an arbitrary price nor
can a price be fixed on extraneous considerations. If such a price does not secure
a reasonable return on the capital employed, such a fixation is liable to be
challenged both on the ground of its being inconsistent with the guidelines
provided under the Essential Commodities Act (Sugar Control Order) and also
as violative of Arts. 19(1)(f) and (g) and 31 of the Constitution. 37
While fixing prices, the relevant law should lay down the considerations on the
basis of which the price has to be fixed and the discretion should not be
absolute.38 The tariff policy under the Electricity Act , 2003 tries to balance the
interest of consumers and the need for investment, while prescribing the rate of
return. It also tries to promote trading in electricity, for making markets
competitive. Under the tariff policy, there is a mandate given to the Regulatory
Commission to monitor transactions continuously and ensure that electricity
traders do not indulge in profiteering in case of market failure. Tariff policy directs
the Regulatory Commission to fix trading margins in a manner which would
reduce costs of electricity to consider and at the same time they should also
endeavour to meet the requirements for investments. 39
While considering the fixation of price for cotton yarn, it was held, "The question
of fair price to the consumer with reference to the dominant object and purpose of
the legislation claiming equitable distribution and availability at fair price is
completely lost sight of if profit and producer's return are kept in the forefront". It
was held that in determining the reasonableness of a restriction imposed by law in
the field of industry, trade or commerce, it has to be remembered that the mere
fact that some of those who are engaged in these areas and who allege a loss of
business due to such imposition of law, will not render the law unreasonable. 40
In deciding the nature and extent of the guidance which should be given to the
delegate, the Legislature must inevitably take into account the special feature of
the object which it intends to achieve by a particular statute. The object which was
intended to be achieved and the means which were required to be adopted in the
achievement of the said object should be clearly enumerated by the Legislature
as a matter of legislative decision. Whether or not, some other matters also
should be taken in the legislative decision, must be left to the Legislature itself.
The question which is to be considered is, whether, the power conferred upon the
delegate is uncanalised or unguided. Having regard to the problems which the
Legislature wanted to attack, it may come to the conclusion that it would be
inexpedient to limit the discretion of the delegate in fixing the maximum prices by
reference to any basic price.41
In Union of India v. Hindustan Aluminium Corpn. Ltd .,42 it was held, "The interest
of producers or manufacturers of an essential commodity is no doubt a factor to
be taken into consideration, but surely it is of much lesser importance and must
 664

yield to the interest of general public who are the consumers". It was observed
that, "loss to an industry for a temporary period is no ground to set aside the price
fixation of an essential commodity". It was held that, "no price fixation order
requires guarantee profit to an establishment in respect of each unit of articles,
served or sold. It is the overall picture of trade and commerce that needs to be
examined.43 In Prag Ice & Oil Mills v. Union of India ,44 it was held that, reasonable
profit of the dealer is not a sine qua non, but it is the interest of the consumer
which is of primary consideration.
The economics of pricing in a controlled economy is entirely different from a free
market. The equilibrium in the latter is reached by an interaction of supply and
demand. Its graph keeps on moving up and down governed by the principle of
scarcity. However, the controlled economy does not operate on demand and
supply. The production, th edistribution and the supply are all regulated and
controlled by the Government in public interest. Such orders are issued in public
interest for the common benefit and fair price for the needy and the poor. The
legality of such orders cannot be tested on the cost structure of free economy or
maximum profit theory. The concept of cost structure and profit in a controlled
economy are entirely different.45

13.  Non-essential commodities. Where the goods and services do not fall
under the category of 'essential' commodities or services, greater consideration may be
given to commercial profits.46 When a public undertaking fixes the prices of a
'nonessential' but, public utility goods or services, the Court would not interfere, unless, it
is irrational or whimsical, merely because it has an element of commercial profits. 47
1.  Business carried on by the State. When a business is carried on by the
State or its instrumentality, prices fixed by it are open to judicial review on the test of
reasonableness,48because it is bound to act fairly and reasonably, in view of the
provisions in Art s. 14, 19, 38 and 39(b) of the Constitution. 49
4.  Price-fixation being a legislative act, notice to or prior consultation with the
consumers is not necessary to validate the fixation.50
Public Premises

35.  The Public Premises (Eviction of Unauthorised Occupants) Act, 1971, has
been enacted for a public purpose, viz., making available public premises, after eviction
of persons in unauthorised occupation.51
39.  If does not violate Art. 19(1)(g), if it is applied to the premises used for
commercial purposes, and a speedy machinery is provided for evicting unlawful
occupants from such premises.52
Taxation

30.  In matters of taxation, the Court must defer to the legislative judgment and
policy.53 Thus,
32I.  Where a statute empowers the Government to grant exemption from a tax to
any specified class, in the public interest, the Court would not question the policy of the
Government in exercising this power or interfere merely because the exemption granted
has been confined to new units and not-extended to old units doing the same business. 54
18II.  Mere (i) excessiveness55 of a tax, or (ii) the absence of a corrective
machinery, or the finality of assessment, would not render the tax as an unreasonable
burden on Art. 19(1)(g), provided (i) it is not confiscatory in nature 56; or (ii) there are other
safeguards.57
1V  A taxing statute is not per se regarded as a restriction on the freedom under
Art. 19(1)(g), even if it imposes some hardships in individual cases. Then again, the
mere excessiveness of a tax or even the circumstance that its imposition might tend
 665

towards the diminutive of earnings or profits of the persons of incidence does not per se
and without more, constitute the violation of rights under Art. 19(1)(g). 58 The courts do not
usually interfere with a tax on the ground of it being excessive or that it imposes a heavy
burden on trade and commerce or that the profits of the business are greatly reduced,
thereby,59 except in cases when the court regards the impact of such taxation as
confiscatory or discriminatory.60
1  The newspaper industry enjoys two of the fundamental rights, namely, 'freedom of
speech and expression' and the 'freedom to engage in any profession, occupation, etc.'
under Art. 19(1)(g). The first, since, it is concerned with the field of expression and
communication, and the second, since, communication has become an occupation or
profession and as there is an invasion of trade, business and industry into this field,
where, the freedom of expression is being exercised. While there can be no tax on the
freedom of speech and expression, tax is leviable on the profession and occupation, the
trade and the industry. Hence, tax is leviable on the newspaper industry. However, when
such taxation transgresses into the field of expression and stifles that freedom, it
becomes unconstitutional. As long as it is within reasonable limits and does not impede
the freedom of expression, it will not contravene Art. 19(2). The delicate task of
determining when it crosses from the area of profession, occupation, trade or industry
into the area of freedom of expression and speech and interferes with that freedom has
been entrusted to the courts.61
3I.  Merely giving retrospective effect to a taxing statute 62 is not unresonable,63
unless it is arbitrary64 in nature.
No such charge can be brought where the law has provided a limitation upon
retrospective recovery.65
To test, whether, the retrospective operation of tax operates so harshly as to violate the
fundamental right under Art. 19(1)(g), the Court considers such factors as relevant as the
context in which retroactivity is contemplated, such as, whether the law is one of
validation of taxing statutes struck down by the court for certain defects, the period of
retroactivity and the degree and extent of any unforeseen or unforeseeable financial
burden for the past period, etc. A sales-tax rendered void by the court, when validated by
the Legislature often curing the defects mentioned in the judgment with retrospective
effect, has been held to be valid. Had it not been validated, dealers who had already
collected the tax from the customers would have had a windfall as they would not have
had any such right, had the original law been held as valid. 66
A tax which is 'compensatory' in nature can never operate as an unreasonable restriction
on the right to carry on trade or business. The very idea underlying such a tax is service,
more or less commensurate with the tax levied and no citizen can claim a right to
engage in trade without paying for special services he receives from the State. This is
part of the cost of carrying on business.67
A tax imposed without authority violates the fundamental right under Art. 19(1)(g). 68
Sales-tax is a tax on the sale of goods. Unless confiscatory, such a tax does not impose
unreasonable restrictions on the guaranteed right to trade or business, whethers or not
law permits or prohibits the dealers from passing the tax to the purchasers. 69
A provision in the Income Tax Act, that, if any claim for deduction in view of expenditure
incurred for the business, above a particular amount should only be made by a cross-
cheque or cross-demand draft is not an unreasonable restriction since, such a restraint
is intended to curb the chances and opportunities to use or create black money. 70
The requirement of a licence to carry on trade in essential commodities and payment of
licence fee is not an unreasonable restriction.71
A steep increase in customs duty will not violate Art. 19(1)(g), unless, it is shown to have
destroyed the right to carry on business.72
 666

33I.  On the other than,--

2. A tax which offends Art. 301 or 304 would also offend Art. 19(1)(g). 73
However, a tax can be held to be a restriction on the freedom under Art. 301 only
if the restriction stems from the provisions of the law as its 'direct and immediate
effect' to restrict the free flow of trade, commerce or intercourse. 74
3. Hence, a petition under Art. 32 would lie for violation of Art s. 301 and 304. 75

When is a total prohibition of a business reasonable

U.S.A.
(A) U.S.A.--It has already been pointed out (see ante), that in the case of businesses which are
inherently dangerous to the community, that, a total prohibition would be upheld as a reasonable
exercise of the police power. Thus, the manufacture 76 or sale of liquor77 or of adulterated food or drugs,
or the holding of public billiard and pool rooms; 78 option to buy or sell comodities such as grain at a
future time,79 may be totally prohibited in the interests of public health, safety or morals.
If, on the other hand, the business or vocation is not an evil per se but is a common or ordinary
occupation of the community, where every citizen has the right to carry on, e.g., selling flowers,80 it
would be an unwarranted interference with the constitutional guarantee to prohibit such trade or
profession altogether, though a reasonable regulation on any of the valid grounds for exercise of the
police power may be permissible according to circumstances. 81
Of course, there is no fixed standard for classifying all occupations into those which are inherently
vicious and those which are not, so that the question must ultimately have to be decided by the
Courts, having due regard to the legislative choice of methods for controlling an apprehended evil. 82
(B) India.
India

31.
3. As pointed out earlier (see ante), our Supreme Court, too, has held that the
State has the power to prohibit trades which are inherently illegal or immoral or
injurious to the health or welfare of the public. The laws prohibiting trades in
noxious or dangerous goods or trafficking in women83 or the manufacture or sale
of intoxicating liquors84 or explosives85 cannot be challenged on the ground that
they impose a prohibition and not a mere 'restriction'. The rationale is that in such
cases, 'reasonable restriction' includes prohibition, having regard to the
exceptional circumstances calling for restriction86, namely, the patent and
widespread danger to the community.87 In Narendra Kumar v. UOI ,88 the Supreme
Court construed the term "restriction" to include prohibition and ruled that
reasonableness of such a restriction has to be considered "in the background of
the facts and circumstances under which the order was made, taking into account
the nature of the evil that was sought to be remedied by law, the ratio of the harm
caused to an individual citizen by the proposed remedy, to the beneficial effect
reasonably expected to result to the general public and whether, the restraint
caused by the laws was more than what was necessary in the interests of the
general public."
The question, whether, 'reasonable restriction' could include total prohibition,
cannot be answered categorically. It depends upon the nature of the mischief
which the Legislature seeks to remedy. Where a business or trade is inherently
dangerous, total prohibition thereof would be reasonable; as the business of
making or selling intoxicant liquors is attended with danger to the community, it
may be entirely prohibited or permitted under such conditions as will limit to the
utmost its evils and it is also open to the government to charge a fee for granting
 667

an exclusive privilege of selling foreign liquor. For the same reason, it would be
legitimate to empower the executive to settle this privilege in any manner at its
discretion provided it is not arbitrary. Similarly, trading in dangerous goods such
as explosives or trafficking in women or tourism may be totally prohibited.
However, outside the above exceptional categories, a total prohibition of the right
to carry on a business would be regarded as an unreasonable restriction, and
greater the restriction, the more the need for scrutiny by the courts. In order to
determine whether, total prohibition would be reasonable, the court has to
balance the direct impact on the fundamental right of the citizen affected thereby,
against the greater public or social interest sought to be ensured. 89
The right to practise the medical profession is not absolute. An unqualified person
can be totally prohibited from practising the medical profession. Such prohibition
is reasonable, since, it is to safeguard the health of all persons. 90
A notification completely prohibiting manufacture and sale of a particular drug
issued on the basis of the opinion of an expert Committee regarding adverse
effects in case of consistent use was held as a reasonable restriction. 91'Potable
liquor' as a beverage is an intoxicating and depressant drink which is dangerous
and injurious to health and its trade can be completely prohibited. 92 A total ban on
the manufacture and sale of an ayurvedic toothpaste and tooth powder containing
tobacco which is likely to affect the health of the public is a reasonable
restriction.93 Arbitrariness of a legislation prohibiting the sale of certain drugs
cannot be adjudged to be arbitrary when the Parliament is of the view that it is to
ensure the safety of human and animal life. If a drug manufactured, is not in
conformity with the prescribed standard and is likely to be injurious to health or to
endanger the life of a patient, by a necessary consequence, prohibition is implicit.
It was held that the provisions of the Drugs and Cosmetics Act , 1940 which is
intended to achieve the purpose is valid.94
Prohibiting objectionable and unethical advertisements for the purpose of
discouraging self-medication under the Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954 is valid.95
4. The foregoing power of the Legislature would extend--
9. To control the production etc. of medicinal preparations which are
capable of being used as an alcoholic beverage.96
9. To empower the Executive to settle the privilege of carrying on
business in intoxicants in any manner at its discretion, provided only it is
not arbitrary,97 and does not violate Art. 14.98
36.

34I.  It is not to noxious trades alone that the Supreme Court has confined its
decisions, upholding prohibition as a reasonable restriction.
30. In Arunachala v. State of Madras ,99 the court upheld the validity of the
Madras Commercial Crops Markets Act, 1933, which provided for the
establishment of certain controlled markets for the sale of commercial crops and
provided that after the establishment of such markets, no person would be
allowed to establish any other market within the specified distances of the
controlled markets, so that the growers of such crops would be obliged to resort
to the controlled markets only for the sale of their produce. The Act did not directly
prohibit the business of middlemen engaged in the trade of selling commercial
crops, but the result of the operation of the Act would be to eliminate middlemen.
It was held, that the total or substantial elimination of middlemen was a
reasonable restriction in order to prevent the exploitation of the poor cultivators
engaged in the production of commercial crops which necessitated such
marketing legislations.
 668

It was the public interest, in protecting the growers of commercial crops, which
sustained the reasonableness in the Arunachala case100 and the interest of the
public in the supply of essential commodities,101 which sustained the
reasonableness in the Narendra case,1 even though, the goods involved were not
inherently dangerous.
A marketing legislation which seeks to enable producers to get a fair price for the
commodities by eliminating middlemen and providing a regulated market, is not
an unreasonable restriction, unless, it is clearly established that the provisions are
too drastic to achieve the object for which it was enacted. In order to make
effective such legislation for the control of a market, it would be reasonable for the
Legislature to control transaction between traders and also the sale or produce
grown outside the market area, if sold in the market area itself. 2 The abolition of
the commission agency system with the intent to protect innocent agriculturists is
not violative of Art. 19(1)(g).3
Article 19(1)(g) does not guarantee the fundamental right to carry on trade or
business which creates pollution or which takes away that communities' safety,
health and peace. It cannot be said that a citizen has a right under Art. 19(1)(g) to
carry on trade or business or to manufacture poison which may be used for killing
people. This right is negatived as nobody has any right to carry on any trade or
business in intoxicating liquor by virtue of the right conferred under Art. 19(1)(g). 4
Where an Act has been passed for better regulation of the purchase/sale/ storage
and processing of agricultural produce and establishment of markets for the
proper regulation, a provision prohibiting unauthorised marketing in the notified
area being established is a reasonable restriction which is in public interest. 5
In order to determine whether, total prohibition would be reasonable, the court has
to balance the direct impact on the fundamental rights of citizens, as against the
greater public or social interest sought to be safeguarded. The standard of
judging reasonability of the restriction or a restriction amounting to prohibition
remains the same except that a total prohibition must also satisfy the test that a
lesser alternative would be inadequate.6 When an existing law reasonably
safeguards the interests of women employed in eating houses, permit rooms and
bars and protects their dignity, without any attempt being made to implement the
same, an introduction of a new law which totally prohibits their right to dance (i.e.,
the right to profession) in such establishment was held invalid. Such a law was
not necessary.7 A legislation aimed at the protection of women in employment
avenues must balance safety concerns with the right of women to autocracy in
employment. The concern and interference in safety must be proportionate to the
aim. The empowerment of women is a wiser approach than prohibition. No law in
its ultimate effect should end up perpetuating the oppression of women. A law
made under the guise of "protective discrimination" will be bad, if it ultimately or
its effect will be to perpetuate the oppression of women. The State should take
steps to empower women in place of employment, even if it is liquor shop. The
Court said that the duty of the State in employment avenues, where women would
face adverse circumstances is not to prohibit them from such employment
avenues, but to focus on factoring in ways through which unequal consequences
of differences based on sex can be eliminated. Empowerment is a more tenable
and socially wise approach than prohibition.8
In Sylstopic Laboratories (P) Ltd. v. Prem Gupta ,9 a complete ban on
manufacture and sale of certain medical formulations was held not to be an
unreasonable restriction and not violative of Art. 19(1)(g).
Trades which are harmful or dangerous to the ecology may be regulated or totally
prohibited.10
 669

A total prohibition on a person from carrying on his profession at an age chosen

by the Government would not be a reasonable restriction unless special reason
exists.11 The Court expressed the view that the freedom of carrying on a
profession should be enjoyed by the citizens to the fullest possible extent without
putting "shackles" of avoidable cobweb of rules and regulations putting
restrictions on the enjoyment of such freedoms. As such, clause 17 of the
conditions of licence, issued by the Tourism Department of the State, restricting
the age of tourist guides as sixty years was held to be unconstitutional.
Trade, business or profession contemplated by Art. 19(1)(g) means an
independent business, trade or profession. An agent, who is accountable to the
principal, realises the charges after deducting his commission. Such a
relationship was held beyond the scope of Art. 19(1)(g) of the Constitution. 12
A government order directing the local authorities not to issue any fresh licence
for dance shows and floor shows with intend to totally prohibit such performances
is violation of Art. 19(1)(g). The apprehension that the licences are misused for
exhibiting obscene or indecent dances cannot be a ground to issue executive
orders directing the authorities not to issue any licences, without amending the
'law'. Further, the police can very well invoke other effective ways to curb the
misuse, and the total prohibition is not warranted.13
The right to purchase and ply an auto-rickshaw is a fundamental right. But a rule
which prohibits the rights to transfer the same before the lapse of five years is a
violation of this article.14
Where the prohibition is only with respect to the exercise of the right to trade in a
particular area or relating to a particular matter, there is no total prohibition of the
right and will be a removable restriction.15
30. In Narendra's case,16 the impugned provision was Cl. 1 of the Non Ferrous
Metal Control Order, 1958, made under the Essential Commodities Act , 1955--
"No person shall acquire... any non-ferrous metal except under and in accordance
with a permit issued in this behalf by the Controller in accordance with such
principles as the Central Government may from time to time specify."
While laying down the 'principles', the Central Government prohibited the issuing
of any permit to any 'dealer'; it could be issued only to certain manufacturers. The
result was a total elimination of dealers or middlemen from the trade of imported
copper. It was held that the total elimination of middlemen from this business was
a 'reasonable restriction' in view of the shortage of production of these metals in
India, the demand for them in various industries in India, the need to keep the
prices low and to prevent the abuses made by private importers as in the past. 17
Thus, the Court justified a total prohibition on the ground of 'public interest' even
though the trade was not inherently dangerous.
The words, "reasonable restriction" in Art. 19(6) can in appropriate cases include
'prohibition' as well. The basic question of reasonableness would depend upon
several factors like the nature of the business, the nature and effect of restriction,
the ambit of the right and the effect of the restrictions on the right and nature of
mischief that the Legislature seeks to remedy. In order to determine whether total
prohibition would be reasonable, the court has to balance its direct impact on the
fundamental rights of the citizens affected thereby, as against the general public
or social interest sought to be ensured. The fact that a particular district was
carved out of a forest area, the restrictions do not become total. 18
18. In the case of essential commodities (e.g., wheat); it would justify a total ban
on its export.19
 670

In this context, it is to be noted that the Essential Commodities Act , 1955, has
been totally shielded from judicial review by placing it in the 9th Sch. [Entry 126,
Sch. IX, post].
The prohibition or closure of a business as a coercive sanction for realisation of a
tax has been upheld as reasonable.20

19II.  It is to be remembered in this context that while the burden of proving to the
satisfaction of the Court, that any restriction imposed on the exercise of a fundamental
right is reasonable, lies on the State, the onus becomes heavier to show that a total ban
on the exercise of a fundamental right is necessary for the maintenance of the interests
of the general public,21--having regard to the following considerations, inter alia:
31. the inherent pernicious nature of the act prohibited; or its capacity or
tendency to be harmful to the general public;
31. the possibility of achieving the object by imposing a less drastic restraint.
19. In the absence of exceptional situations, such as the prevalence of a State
of emergency, national or local, or the necessity to maintain necessary supplies,
or to stop activities inherently dangerous,--the existence of a machinery to satisfy
the administrative authority that a case for imposing restriction is made out or a
less drastic restriction might ensure the object intended to be achieved. 22

1 Porvej Aktar v. Union of India, (1993) 2 SCC 221 : (1993) 1 SCR 803. See alsoBrij Bhushan v. State of J&K., AIR
1986 SC 1003 : (1986) 2 SCC 354.

2 Sher Singh v. Union of India, AIR 1984 SC 200 : (1984) 1 SCC 107 (para s. 6-7).

3 Hans Raj v. State of U.P., AIR 1975 SC 389 : (1975) 2 SCR 916 (para. 8).

4 Harnam v. R.T.A., AIR 1954 SC 190 : 1954 SCR 371.

5 P. Venkiah v. G. Krishna Rao, AIR 1981 SC 1910 : (1981) 4 SCC 105.

6 Sharma Transports v. State of Maharashtra, AIR 2011 SC 3279 : (2011) 8 SCC 647.

7 Ibrahim v. R.T.A., AIR 1953 SC 79 : 1953 SCR 290.

8 Andhra Pradesh Motor Vehicles Dealers Association v. Govt. of India, AIR 2003 A.P. 134.

9 UOI v. Rafique Shaikh Bhikan, AIR 2012 SC 2453 : (2012) 6 SCC 265.

10 Kanagaraj v. Govt. of T.N., AIR O. 1991 Mad 182 (para. 40).

11 Bombay Hawkers' Union v. Bombay Municipal Corporation, AIR 1985 SC 1206 : (1985) 3 SCC 528 (para. 8).

12 Sodan Singh v. New Delhi Municipal Corporation, AIR 1989 SC 1988 : (1989) 4 SCC 155.

13 SeeGainda Ram v. Municipal Corpn. of Delhi, (2010) 10 SCC 715; see alsoFertilizer Corpn. Kamgar Union v. UOI,
(1981) 1 SCC 568 : AIR 1981 SC 344; K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107 : (1982) 2 SCC 273;
Bombay Hawkers' Union v. Bombay Municipal Corpn., AIR 1985 SC 1206 : (1985) 3 SCC 528; Olga Tellis v. Bombay
Municipal Corpn., AIR 1986 SC 180 : (1985) 3 SCC 545.

14 Municipal Bd. v. Mahadeoji, AIR 1965 SC 1147 : (1965) 2 SCR 242 (paras. 8, 10).

15 Municipal Bd. v. Mahadeoji, AIR 1965 SC 1147 : (1965) 2 SCR 242 (paras. 8, 10).

16 Pal Md. v. Sadarangani, AIR 1985 Mad 23 (para. 20).

17 Sodan Singh v. N.D.M.C., (1989) 4 SCC 155 : AIR 1989 SC 1988 (paras. 17, 19).

18 Sodan Singh v. N.D.M.C., (1989) 4 SCC 155 : AIR 1989 SC 1988 (paras. 17, 19).
 671

19 Pyarelal v. New Delhi Municipal Committee, AIR 1968 SC 138 : (1967) 3 SCR 747.

20 Sudhir Madan v. Municipal Corpn. of Delhi, (2007) 15 SCC 497.

21 South Calcutta Hawkers' Assn. v. Govt. of West Bengal, AIR 1997 Cal 234; Sodan Singh v. New Delhi Municipal
Corpn., AIR 1989 SC 1988 : (1989) 4 SCC 155; Bapuji Nagar Khudra Byabsai Assn. v. State of Orissa, AIR 1997 Ori
189.

22 Shaik Dastagiri v. Executive Officer, Uday.agiri Grampanchayat, AIR 2002 AP 384; Sodan Singh v. New Delhi
Municipal Corpn ., (supra); Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, AIR 1997 SC 152 : (1997) 11
SCC 121.

23 Maharashtra Ekta Hawkers' Union v. Municipal Corporation, Greater Mumbai, (2004) 1 SCC 625. See alsoSodan
Singh v. New Delhi Municipal Corpn., AIR 1989 SC 1988 : (1989) 4 SCC 155.

24 Sarojini Nagar Market Shopkeepers' Association v. NDMC, (2000) 10 SCC 341.

25 Union of India v. Hawker Ganatantrik Nagarik Samity, (2003) 9 SCC 302.

26 In Calcutta, this problem has been aggravated by the fact that various political parties are supporting the pavement
stall-owners in lieu of their votes and other inducements. There is, thus, none to plead for the pedestrians who are
driven from the pavement and the footway into the open street under the risk of being run over by automobiles. Since,
the highest authorities shut their eyes to such glaring lawlessness, they become responsible for such anti-social act
ivities. Even in those areas where 'hawkers corners' have been set up in open spaces, adequate steps are not taken to
force the trespassers to remove to those corners from the public footways. SeeSouth Calcutta Hawkers' Assn. v. Govt.
of West Bengal, AIR 1997 Cal 234.

27 Bombay Hawkers' Union v. Bombay Municipal Corpn., AIR 1985 SC 1206 : (1985) 3 SCC 528 (para. 8).

28 Liberty Mills v. Union of India, AIR 1984 SC 1271 : (1984) 3 SCC 465 (para. 21).

29 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, (1990) Supp. SCC 397 : AIR 1990 SC
1851 (paras. 28, 30, 31, 36)--3 Judges.

30 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, (1990) Supp. SCC 397 : AIR 1990 SC
1851 (paras. 28, 30, 31, 36)--3 Judges.

31 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, (1990) Supp. SCC 397 : AIR 1990 SC
1851 (paras. 28, 30, 31, 36)--3 Judges.

32 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, (1990) Supp. SCC 397 : AIR 1990 SC
1851 (paras. 28, 30, 31, 36)--3 Judges.

33 Siel Ltd. v. UOI, AIR 1998 SC 3076 : (1998) 7 SCC 26; Delhi Science Forum v. UOI, AIR 1996 SC 1356 : (1996) 2
SCC 405; Dalmia Cement (Bharat) Ltd. v. UOI, (1996) 10 SCC 104.

34 Narendra v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

35 Shree Meennakshi Mills v. Union of India, AIR 1974 SC 366 (378) : (1974) 1 SCC 468; Prag Ice Mills v. Union of
India, AIR 1978 SC 1296 : (1978) 3 SCC 459.

36 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, (1990) Supp. SCC 397 : AIR 1990 SC
1851 (paras, 28, 30, 31, 36)--3 Judges; Cf.; Union of India v. Cynamide India, AIR 1987 SC 1802 : (1987) 2 SCC 720.

37 Malaprabha Co-op. Sugar Factory Ltd. v. Union of India, AIR 1994 SC 1311 : (1994) 1 SCC 648; Panipet Co-
operative Sugar Mills v. Union of India, AIR 1973 SC 537 : (1973) 1 SCC 129; Shri Sitaram Sugar Co. Ltd. v. Union of
India, (1990) 3 SCC 223; Saraswathi Industrial Syndicate v. Union of India, AIR 1974 SC 460 : (1974) 2 SCC 630.

38 Dwaraka Prasad v. State of U.P., AIR 1954 SC 224 : (1954) SCR 803.

39 PTC India Ltd. v. Central Electricity Regulatory Commission, AIR 2010 SC 1338 : (2010) 4 SCC 603.

40 Shree Meenakshi Mills Ltd. v. Union of India, AIR 1974 SC 366 : (1974) 1 SCC 468.

41 UOI v. Bhanamal Gulzarimal Ltd., AIR 1960 SC 475 : (1960) 2 SCR 627.

42 Union of India v. Hindustan Aluminium Corpn. Ltd., AIR 1983 Calcutta 307.

43 Welcome Hotel v. State of A.P., AIR 1983 SC 1015 : (1983) 4 SCC 575.
 672

44 Prag Ice & Oil Mills v. Union of India, AIR 1978 SC 1296 : (1978) 3 SCC 459.

45 Maharashtra Rajya Sahakari Sabkar Karkhana Sangh Ltd. v. State of Maharashtra, 1995 (Supp-2) SCC 475 : JT
(1995) 3 SC 581.

46 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, (1990) Supp. SCC 397 : AIR 1990 SC
1851 (paras, 28, 30, 31, 36)--3 Judges.

47 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, (1990) Supp. SCC 397 : AIR 1990 SC
1851 (paras, 28, 30, 31, 36)--3 Judges.

48 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, AIR 1990 SC 1851 : 1990 Supp SCC 397
(para. 15-16).

49 O.N.G.C. v. Association of Natural Gas Consuming Industries of Gujarat, AIR 1990 SC 1851 : 1990 Supp SCC 397
(para. 15-16).

50 H.S.S.K. v. Union of India, (1990) 4 SCC 516 : AIR 1990 SC 2128 (para. 12).

51 Asoka Marketing v. P.N.B., AIR 1991 SC 855 : (1990) 4 SCC 406 (para. 28) (CB).

52 Asoka Marketing v. P.N.B., AIR 1991 SC 855 : (1990) 4 SCC 406 (para. 28) (CB).

53 Hoechst v. State of Bihar, (1983) 4 SCC 45 : AIR 1983 SC 1019 (para. 82).

54 Bharat Textiles v. State of Maharashtra, (1989) Supp. (1) SCC 153 : 1988 Supp (3) SCR 72 (paras. 13-14, 17).

55 Express Hotels v. State of Gujarat, (1989) 3 SCC 677 : AIR 1989 SC 1949 (paras. 28, 36, 43) B.; Fed. of Hotels v.
Union of India, (1989) 3 SCC 634 : AIR 1990 SC 1637 (para. 62) (CB).

56 Nazeria Motor Service v. State of A.P., AIR 1970 SC 1864 : (1969) 2 SCC 576.

57 Express Hotels v. State of Gujarat, (1989) 3 SCC 677 : AIR 1989 SC 1949 (paras. 28, 36, 43) B; Babubhai v. State
of Gujarat, (1985) 2 SCC 732 : AIR 1985 SC 613 (para. 8).

58 SeeExpress Hotels (P) Ltd. v. State of Gujarat, AIR 1989 SC 1949 : (1989) 3 SCC 677; Federation of Hotels v. UOI,
AIR 1990 SC 1637 : (1989) 3 SCC 634.

59 Nazeeria Motor Service v. State of AP, AIR 1970 SC 1864 : (1969) 2 SCC 576.

60 See K.T. Moopil Nair v. State of Kerala, AIR 1961 SC 552 : (1961) 3 SCR 77.

61 Express Newspapers v. UOI, AIR 1986 SC 515 : (1985) 1 SCC 641; see alsoA. Suresh v. State of Tamil Nadu, AIR
1997 SC 1889 : (1997) 1 SCC 319.

62 Sonia Bhatia v. State of U.P., (1981) 2 SCC 585 : AIR 1981 SC 1274 (para. 29).

63 Empire Industries v. Union of India, AIR 1986 SC 662 : (1985) 3 SCC 314.

64 Ramkrishna v. State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897.

65 J.K. Cotton Mills v. Union of India, AIR 1988 SC 191 : 1987 Supp SCC 350 (para s. 30, 35).

66 Krishnamurthi & Co. v. State of Madras, AIR 1972 SC 2455 : (1973) 1 SCC 75. See alsoUjagar Prints v. Union of
India, AIR 1989 SC 576 : (1989) 3 SCC 488; National Agricultural Co-operative Marketing Federation of India Ltd. v.
Union of India, AIR 2003 SC 1329 : (2003) 5 SCC 23; Empire Industries Ltd. v. Union of India, AIR 1986 SC 662 :
(1985) 3 SCC 314; Epari Chinna Krishnamoorthy v. State of Orissa, AIR 1964 SC 1581 : (1964) 7 SCR 185.

67 G.K. Krishnan v. State of Tamil Nadu, AIR 1975 SC 583 : (1975) 1 SCC 375; Bhagatram Rajeevkumar v. CST, 1995
(Supp-1) SCC 673.

68 Kailash Nath v. State of U.P., AIR 1957 SC 790; State of Kerala v. P.J. Joseph, AIR 1958 SC 296; Himmatlal Harilal
Mehta v. State of M.P., AIR 1954 SC 403 : (1954) SCR 1122; Mohammad Yasin v. Town Area Committee, Jalalabad,
AIR 1952 SC 115 : (1952) SCR 572; Bengal Immunity Co. v State of Bihar, AIR 1955 SC 661 : (1955) 2 SCR 603.

69 S. Koder v. State of Kerala, AIR 1974 SC 2272 : (1974) 4 SCC 422.

70 Attar Singh Gurmukh Singh v. Income Tax Officer, AIR 1991 SC 2109 : (1991) 4 SCC 385.
 673

71 Dwaraka Prasad Laxmi Narayan v. State of U.P., AIR 1954 SC 224 : (1954) SCR 803; D.S. & G. Mills (P.) Ltd. v.
Union of India, AIR 1959 SC 626 : 1959 (Supp 2) SCR 123.

72 Pankaj Jain Agencies v. Union of India, (1994) 5 SCC 198 : AIR 1995 SC 360.

73 Syed v. State of Mysore, AIR 1975 SC 1443 : (1975) 2 SCC 131 (para. 6); Video Electronics v. State of Punjab,
(1990) 1 SCJ 352 : AIR 1990 SC 820 : (1990) 3 SCC 87 (para. 10). But see Ram Chandra Palai v. State of Orissa, AIR
1956 SC 298.

74 Syed v. State of Mysore, AIR 1975 SC 1443 : (1975) 2 SCC 131 (para. 6); Video Electronics v. State of Punjab,
(1990) 1 SCJ 352 : AIR 1990 SC 820 : (1990) 3 SCC 87 (para. 10). But see Ram Chandra Palai v. State of Orissa, AIR
1956 SC 298.

75 Syed v. State of Mysore, AIR 1975 SC 1443 : (1975) 2 SCC 131 (para. 6); Video Electronics v. State of Punjab,
(1990) 1 SCJ 352 : AIR 1990 SC 820 : (1990) 3 SCC 87 (para. 10). But see Ram Chandra Palai v. State of Orissa, AIR
1956 SC 298.

76 Mugler v. Kansas, (1887) 123 US 623.

77 Crowley v. Chrestensen, (1890 137 US 86.

78 Clarke v. Deckebach, (1927) 274 US 392 (397); Murphy v. California, (1912) 235 US 623.

79 Booth v. Illinois, (1902) 184 US 425.

80 Kresge Co. v. Couzens, (1939) 290 Mich. 185.

81 Dent v. West Virginia, (1889) 129 US 114.

82 Kotch v. River Port Pilot Commrs., (1947) 330 US 552.

83 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

84 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246; Har Shankar v.
Dy. Excise Commr., AIR 1975 SC 1121 : (1975) 1 SCC 737 (para. 53).

85 Southern Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863 : (1981) 4 SCC 391 (para s. 18-20).

86 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

87 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246; Southern
Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863 : (1981) 4 SCC 391 (para s. 18-20).

88 AIR 1960 SC 430 : (1960) 2 SCR 375.

89 SeeMini Taxi Owners & Drivers Assn. v. State of AP, (2001) CrLJ 2421(AP) .

90 Rajasthan Pradesh Vaidya Samithi v. UOI, AIR 2010 SC 2221 : (2010) 12 SCC 609.

91 Systopic Laboratories (P) Ltd. v. Prem Gupta (Dr.), AIR 1994 SC 205 : 1994 (Supp-1) SCC 160.

92 Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 : 1994 (Supp-4) SCR 477.

93 Laxmikant v. Union of India, (1997) 4 SCC 739 : JT 1997 (5) SC 39.

94 Pratap Pharma (P) Ltd. v. Union of India, AIR 1997 SC 2648 : (1997) 5 SCC 87.

95 Hamdard Dawakhana v Union of India, AIR 1960 SC 554 : (1960) 2 SCR 671.

96 Southern Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863 : (1981) 4 SCC 391 (para s. 18-20).

97 State of Orissa v. Harinarayan, AIR 1972 SC 1816 : (1972) 2 SCC 36; Ramana Dayaram Shetty v. International
Airport Authority of India, AIR 1979 SC 1628 : (1972) 2 SCC 36 (para. 25).

98 State of M.P. v. Nandlal, AIR 1987 SC 251 : (1986) 4 SCC 566 (para. 32).

99 Arunachala v. State of Madras, AIR 1959 SC 300 (305) : 1959 (Supp-1) SCR 92; M.B. Cotton Assocn v. Union of
India, AIR 1954 SC 634. See alsoSreenivasa General Traders v. State of AP, AIR 1983 SC 1246 : (1983) 4 SCC 353.
 674

100 Arunachala v. State of Madras, AIR 1959 SC 300 (305) : 1959 (Supp-1) SCR 92; M.B. Cotton Assocn v. Union of
India, AIR 1954 SC 634.

101 Krishna v. State of Rajasthan, AIR 1982 SC 29 : (1981) 4 SCC 550.

1 Narendra v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

2 Sreenivasa General Traders v. State of A.P., AIR 1983 SC 1246 : (1983) 4 SCC 353. See alsoRamesh Chandra
Kachardas Porwal v. State of Maharashtra, AIR 1981 SC 1127 : (1981) 2 SCC 722.

3 Karan Singh v. State of M.P., AIR 1986 SC 1506 : 1986 (Supp) SCC 305.

4 Burrabazar Fireworks Dealers' Assn. v. Commissioner of Police, Calcutta, AIR 1998 Cal 121.

5 Chint Ram Ram Chand v. State of Punjab, (1996) 9 SCC 338 : AIR 1996 SC 1406; Labha Ram & Sons v. State of
Punjab, (1998) 5 SCC 207.

6 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 : AIR 2006 SC 212. See alsoBalram
Kumawat v. Union of India, AIR 2003 SC 3268 : (2003) 7 SCC 628; Indian Handicrafts Emporium v. Union of India, AIR
2003 SC 3240 : (2003) 7 SCC 589.

7 State of Maharashtra v. Indian Hotel & Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519.

8 Anuj Garg v. Hotel Association of India, AIR 2008 SC 663 : (2008) 3 SCC 1.

9 AIR 1994 SC 205 : 1994 (Supp-1) SCC 160.

10 Indian Handicrafts Emporium v. UOI, AIR 2003 SC 3240 : (2003) 7 SCC 589.

11 B.P. Sharma v. UOI, AIR 2003 SC 3863 : (2003) 7 SCC 309.

12 UOI v. Binani Consultants (P) Ltd., AIR 1995 Cal 234.

13 Govt. of Pondicherry v. S. Muthukumarswamy, AIR 2007 Mad 140. State of Maharashtra v. Indian Hotel &
Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519.

14 V. Swarna Prabha Dwarka v. RTA, AIR 2007 (NOC) Ker 301.

15 Sushila Saw Mill v. State of Orissa, AIR 1995 Ori 256; Krishna Kumar v. Municipal Committee, (2005) 8 SCC 612;
State of Gujarat v. Mirzapur Moti Kureshi Kassah Jamat, AIR 2006 SC 212 : (2005) 8 SCC 534.

16 Narendra v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

17 Rahaman v. State of A.P., AIR 1961 SC 1471 : (1962) 1 SCR 694.

18 Sushila Saw Mill v. State of Orissa, AIR 1995 Ori 256.

19 Krishna v. State of Rajasthan, AIR 1982 SC 29 : (1981) 4 SCC 550.

20 Rahaman v. State of A.P., AIR 1961 SC 1471 : (1962) 1 SCR 694.

21 Municipal Corpn. v. Jan Md. (1986) 3 SCC 20 : AIR 1986 SC 1205 (para. 15). See alsoLaxmi Khandsari v. State of
U.P., AIR 1981 SC 873 : (1981) 2 SCC 600 : (1981) 3 SCR 92; Mohd. Faruk v. State of M.P., AIR 1970 SC 93 : (1969)
1 SCC 853. See alsoMaharashtra v. Indian Hotel & Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519.

22 Municipal Corpn. v. Jan Md. (1986) 3 SCC 20 : AIR 1986 SC 1205 (para. 15). See alsoLaxmi Khandsari v. State of
U.P., AIR 1981 SC 873 : (1981) 2 SCC 600 : (1981) 3 SCR 92; Mohd. Faruk v. State of M.P., AIR 1970 SC 93 : (1969)
1 SCC 853. See alsoMaharashtra v. Indian Hotel & Restaurants Assn., AIR 2013 SC 2582 : (2013) 8 SCC 519.

The doctrine ofres extra commercium

The expression 'res extra commercium' means, a thing which by law is excluded from the sphere of
private transaction; the things not subject to commerce or trade; the thins which cannot be bought or
sold. The expression means, 'outside commerce'.23 Those things which had been dedicated to the
public such as public roads, rivers, titles of honour, etc.24 It means a thing which by law is excluded
 675

from the sphere of private transaction; things not subject of commerce of trade; things which cannot
be bought or sold.25

36.  In some cases, the problem of reasonableness of a total prohibition has

been sought to be avoided by cutting at the root of it, that is, by holding that trades and
callings which are inherently noxious26 do not come within the protection of the
fundamental right guaranteed by Art. 19(1)(g) at all, so that no question of the validity of
restrictions imposed thereon may possibly arise. The theory was enunicated by DAS
C.J. in the Chamarbaugwala case27 where, it was held that gambling (and prize
competitions of that nature) is an inherently vicious transaction which is against public
policy and, being res extra commercium, does not constitute 'trade' within the meaning
of Art. 19(1)(g).28
40.  The doctrine propounded by DAS, C.J., was applied by the Supreme Court,
in subsequent cases, to hold that there is no fundamental right to trade in the following
businesses of a deleterious nature:29
23. to deal in adulterated foodstuff.30
21. to act as a tout.31
16. to deal in intoxicants.32
10. to deal in explosives.33

Following the decision in RMD Chamerbaugwala v. UOI ,34 the Kerala High Court
held that tobacco was as deleterious as liquor and hence, there is no fundamental right
to trade in tobacco.35
So also, no one can claim a right to trade in smuggled goods. 36 Trade and cultivation of
poppy could be prohibited.37
26.  The authority or this interpretation of Cl. (1)(g) of Art. 19, read with Cl. (6)
thereof, cited by DAS C.J., where certain decisions under s. 92 of the Australian
Constitution,38 under which it has been held that a total prohibition of certain inherently
dangerous trades, such as trafficking in women, transportation of lottery tickets, does not
offend against the freedom of inter-State trade and commerce because such inherently
dangerous transactions do not constitute 'trade' at all.
However, as DAS C.J. himself had observed, the scheme of Art. 19 of our Constitution,
is altogether different from the aforesaid provision of the Australian Constitution and the
use of the decisions under those provisions in the matter of interpretation of Art. 19 of
our Constitution can be made only "with caution and circumspection". In the words of his
Lordship:
"The scheme of the Australian Constitution also is different from that of ours, for in the
Australian Constitution there is no such provision as we have in Art. 19 (6)..." 39
The scheme of Art. 19 is that the fundamental rights are declared in general terms in the
various sub-clauses of Cl. (1) and the restrictions which can be imposed by the State on
such rights are exhaustively laid down in the limitation Clauses (2)-(6), and that is the
reason why Parliament had to insert new grounds of restriction in Cl. (2), by the
Constitution (First Amendment) Act, 1951. If a speech which incites the commission of
murder or other crime was not 'speech' at all within the meaning of Cl. (1)(a), no law
would be required to enable the State to suppress it, nor would a constitutional
amendment have been required to authorise the Legislature to make a law for its
suppression. The Author is not unmindful of the fact that in the American decisions like
Beauharnis v. Illinois ,40it has been observed that vicious utterances, such as those which
are defamatory or obscene, are not 'constitutionally protected speech' within the
meaning of the Fourteenth Amendment, so that the State act ion to suppress them is not
subject to the 'clear and present danger' test. But there, again, that line of approach was
due to the fact that in the American Constitution, there was no limitation clause to enable
the State to impose restrictions upon the rights guaranteed by the Fourteenth
 676

Amendment, so that the State action to suppress them is not subject to the 'clear and
present danger' test. But there again, that line of approach was due to the fact that in the
American Constitution, there was no limitation clause to enable the State to impose
restrictions upon the rights guaranteed by the Fourteenth Amendment and that the
doctrines of 'Police Power' or of 'clear and present danger' were all invented by the
Courts to legalise the imposition of restrictions where the Constitution had prescribed no
limitations. However, even there, the imposition of restrictions upon defamation 41 or the
incitement to crime42 is justified as an exercise of the 'Police Power' as an exception to
the guarantee of freedom of speech on the ground of an 'over-riding social interest', 43
and not because such utterances are not included within the protection of the Fourteenth
Amendment ab initio. It is only when the individual abuses his freedom of speech by
making such anti-social utterances that he may be said to have transcended "The
bounds of the freedom of speech which the Constitution protects" 44 and then the Police
Power comes into operation. It is in this sense that the observations in the Beauharnis
case45 have to be appreciated.
14.  It is submitted that the reasoning in Chamarbaugwala's case46 should not be
extended. It would be more logical and in accordance with the rules of interpretation to
held that anything which is a trade or business according to the Dictionary meaning
would prima facie come within Art. 19(1)(g);47 whether, the State can, by making a law,
restrict or totally prohibit any trade which is injurious to the public interest, is a question
to be decided by the Court by an application of Cl. (6) of the Article.
6.  The view of the Author, as stated in the preceding paragraph (see Art. 19(6)
post) received support from two unanimous decisions of the Constitution Bench, in 1965
and 1967:
32. The case of Krishnachandra v. State of M. P .,48 was also a case relating to
gambling. It was an appeal for prosecution under the Gambling Act, where the
constitutionality of the Act was challenged under Art. 19. There was no reference
to the observations of DAS, C.J., in the R.M.D.C. case,49 nor did the Court, in
upholding the validity of the Act, suggest that gambling could not be brought
under Art. 19(1)(g) because it did not constitute a 'business' within the purview of
Art. 19(1)(g). On the other hand, the Court assumed that it came under that
provision, and, upon an examination of the provisions of the impugned Act, held
that the safeguards provided by the Act constituted 'reasonable' restrictions.
32. The case of Krishan Kumar50was direct and more pronounced. In this case,
the, Petitioners had been refused a licence to do business in liquor under the J&K
Excise Act. The constitutionality of the Act, having been challenged on the ground
of contravention of Art. 19(1)(g), divergent views were expressed by the judges of
the High Court on the question whether, the Petitioners could at all claim a
fundamental right under Art. 19(1)(g), to do business in liquor. Hence, this
question directly arose in the appeal before the Supreme Court. The unanimous
Court rejected this contention of the State:
2. Upon an analysis of the previous decisions, including the R.M.D.C.
case,51 the Court held that--
"None of them held that a right to do business in liquor was not a
fundamental right",
but stated that the nature of the restrictions would depend upon the nature
of the trade.
2. As to the contents of Art. 19(1)(g), the Court held that any business
would prima facie come within the ambit of Art. 19(1)(g), subject, of course,
to the power of the State to impose restrictions under Cl. (6),--the degree
of such restriction, extending to a total prohibition, varying with the nature
of the business involved.
2. The doctrine of res extra commuercium, in its application to Art.
19(1)(g), suggesting that dangerous or harmful trades or occupations
 677

would not constitute 'business' within the meaning of Art. 19(1)(g), was
rejected by SUBBA RAO, C.J., in the following words--
"The acceptance of this broad argument involves the position that the
meaning of the expression 'trade or business' depends upon and varies
with the general acceptance of the standards of morality obtaining at a
particular point of time in our country. Such an approach leads to
incoherence in thought and expression. Standards of morality can afford a
guidance to impose restrictions, but cannot limit the scope of the right." 52
37.

In State of Kerala v. Kandath Distilleries ,53 the court held that Art. 47 of the
Constitution is one of the Directive Principles of State Policy which is fundamental in the
governance of the country and the State has the power to completely prohibit the
manufacture, sale, possession, distribution and consumption of liquor as a beverage
because it is "inherently dangerous" to human health. Consequently, it is the privilege of
the State and it is for the State to decide whether it should part with the privilege which
depends on the liquor policy of the State. A citizen has, therefore, no fundamental right
to do trade or business in liquor as a beverage, and the activities which are extra
commerciumcannot be carried on by any citizen; the State can completely prohibit trade
or business in potable liquor and can also create a monopoly in itself for such trade or
business. The State can also impose restrictions and limitations on the trade or business
of liquor as a beverage in which the restrictions are different in nature from those
imposed on trade or business in legitimate act ivities and goods which are res
commercium.54
In UOI v. Martin Lottery Agencies Ltd .,55 the court said that the concept of res extra
commercium may in the future be required to be considered afresh, having regard to its
origin in the Roman Law as also a concept, thereof. The Court said that 'Gambling is res
extra commercium as has been held in RMD Chamarbaugwala's case56 and B.R.
Enterprises v. State of UP .'57 The doctrine of res extra commercium was invoked in
United States of America where keeping in view the nature of right conferred on its
citizens and the concept of imposition of reasonable restrictions thereon being absent, it
was held that gambling should be frowned upon being opposed to constitutional
jurisprudence. While borrowing the said principle in the Indian context, however, it must
be borne in mind that Constitution of India envisages reasonable restrictions in respect
of almost all the fundamental rights of the citizens. No citizen has an absolute
fundamental right. Whereas the same principle may apply in Australia, it may not apply
to the European countries where gambling and even sale of narcotic drugs subject to
licensing provisions, if any, is permissible. Hence, it was held that the concept of res
extra commercium may be required to be considered afresh.
5.  It is striking that, that notwithstanding the clear pronouncements in Krishan
Kumar's case,58 a three-judge Division Bench, in 1974, again asserted the proposition 59
that--
"...there is no fundamental right of citizens to carry on trade or business in liquor',
And this proposition has been affirmed in 1975 by the Constitution Bench.
The observations of SUBBA RAO, C.J., were sought to be explained, but, with respect,
the explanation is not convincing. The three reasons given by RAY C.J., in the Division
Bench, only go to show that a total prohibition of such trade would be a 'reasonable'
restriction under Cl. (6) of Art. 19. and not that Art. 19(1)(g) would not be attracted at all.
These reasons are--
24. that "there is the police power of the State to enforce public morality to
prohibit trade in noxious or dangerous goods";
 678

22. that "there is the power of the State to enforce an absolute prohibition of
manufacture or sale of intoxicating liquor"60;
17. that "Art. 47 states that the State shall endeavour to bring about prohibition
of the consumption except for medicinal purposes of intoxicating drinks...".

3.  In view of the broad assertion by the Division Bench, 61 it has become
necessary to take up the basic principle of interpretation, namely, that in the absence of
anything in the context, a Court should interpret statutory language in its literal or
ordinary sense.
33. According to the Webseter's New World Dictionary, 'business' "refers
generally to the buying and selling of commodities and services and connotes a
profit motive".
As has been stated earlier, our Supreme Court has interpreted the term in the
above literal sense, in various contexts, e.g., to refer to--
10. Some adventure which has the object of earning profit or gain; 62
10. Anything which is an occupation as distinguished from a pleasure" 63;
4. Some real, substantial and systematic or organised course or
activity or conduct with a set purpose.64
38.
39. A learned Author,65 has relied on an English decision to say that the
occupation of a 'burglar' cannot be a trade.66 However, the observation made
therein, rested on the specific statutory definition of a 'trade' under the Income-
tax Act .
As SUBBA RAO, C.J., pointed out,67 from the above literal standpoint, there is
nothing to distinguish between dealing in 'ghee' and dealing in 'liquor'.
33. There is nothing in the context of Art. 19 to displace the above literal or
ordinary meaning of the word 'business'.
Nor is there anything in Art. 47 to suggest,--as the Division Bench assumes, 68--
anything to the contrary. On the other hand, Art. 47, itself indicates that the
manufacture and sale of liquor for medicinal purposes, at least, would be a
'business', which should not be 'prohibited' by the State.
20. Above all, the scheme of Art. 19, as has been explained in para. 3 of this
caption, is contrary to that under the American or Australian Constitutions, under
which deleterious trades have been excluded from the category of trades, in
some cases.

3.  The voice of the unanimous Constitution Bench in Krishan Kumar69 has,
however, been lost, and by a series of subsequent decisions the Supreme Court has
applied the doctrine of res extra commercium to trading in liquor70 to hold that there
cannot be any fundamental right to carry on such trade or business. 71
In the dissenting judgment, in State of Punjab v. Devans Modern Breweries Ltd .,72 it was
observed that applicability of res extra commercium is a judge made law and the
Constitution does not provide for it. It was held that dealing in a commodity which is
governed by a statute cannot be said to be inherently noxious and pernicious. A society
cannot condemn a business, nor does there exist any permission in this behalf, if such
business is permitted to be carried out under the statutory enactments made by the
Legislature competent therefor. The Legislature being the final obiter as to the morality
or otherwise of a civilised society, has also to state as to business in which articles would
be criminal in nature and the society will have no say in the matter... The courts, while
interpreting a statute, would not take recourse to such interpretation whereby, a person
can be said to have committed a crime although the same is not a crime in terms of
statutory enactment. Whether, dealing in a commodity by a person constitutes a crime or
 679

not, can only be the subject-matter of a statutory enactment. Per B.N. AGARWAL J.,
when a statute governs the trade in a particular community, the provision contained
therein would only regulate the same and not the principle behind the maxim "res extra
commercium", per S.B. SINHA, J. the majority judgment held that, "liquor" is 'res extra
commercium' and the prohibition can be imposed.
In Khoday Distilleries Ltd. v. State of Karnataka ,73 the Court held that a citizen has no
fundamental right to trade or business in liquor and the act ivities which are "res extra
commercium" cannot be carried on by any citizen and the State can completely prohibit
such business.74
It has been extended to--
25. A business such as money-lending, when it is carried on not as ancillary to
commercial activity, but as a deleterious business which stagnates the rural
economy.75
23. Any business, such as prize chits,76 which involves an element of gambling.77
Likewise, lotteries, even if the same is conducted by the State, is gambling and is
not protected. The holder of a lottery ticket knows that the consideration which he
has paid may be for receiving nothing, but there are a few who may be lucky to
receive the prize which is just by chance.78 But horse racing is neither gaming nor
gambling and is mere game of skill.79

Whether the State can create a monopoly right in favour of an individual or individuals
A distinction has to be made between a monopoly created by the State in favour of itself or its agency
and a monopoly granted to private individuals or corporations, not controlled by the State.80
The right guaranteed under Art. 19(1)(g) does not guarantee monopoly right to a particular individual
to carry on any trade or occupation. If other persons are allowed to carry on the same business and
an element of competition is introduced, it does not amount to violating Art. 19(1)(g). 81
Every citizen has a right to carry on trade and the State which itself is a great trader, manufacturer and
industrialist cannot act arbitrarily in giving jobs or while distributing largesse. In Ramana Narayan
Shetty v. International Airport Authority ,82 it was held that the Government is subjected to two
limitations in all its activities i.e., (1) in regard to the terms on which largesse may be granted and (2)
with regard to the persons who may be recipient of such largesse.

32.  The amendment of Cl. (6) by the Constitution (First Amendment) Act, 1951
precludes the Court from questioning the reasonableness of a law which creates a
monopoly in favour of the State itself or of a corporation owned or controlled by the
State, to carry on a trade to the exclusion of the citizens. 83 The amendment made by the
Legislature in Art. 19(6), shows that according to the Legislature a law relating to the
creation of State monopoly, should be presumed to be in the interest of the general
public. Article 19(6)(ii) clearly shows that there is no limit placed on the power of the
State in respect of the creation of State monopoly. The amendment clearly indicates that
State monopoly in respect of any trade or business must be presumed to be reasonable
and in the interest of the general public, so far as Art. 19(1)(g) is concerned. 84 Once, it is
held that policy of nationalisation of transport services is valid, which no doubt, is an
essential service and a type of State monopoly, and a consequence that may follow
cannot be taken into consideration; otherwise, no social reform can ever be brought
about. All schemes of monopoly and individual interest in such cases must yield to the
good of the general public.85 In that case, the court was considering the Tamil Nadu
Stage Carriage and Contract Carriages (Acquisition) Act which was enacted to
nationalise the State transport industry by stages. The Act was held to be valid.
While the Government considers taking over the management of an undertaking and the
process of nationalisation is pending, if there is a genuine apprehension that pending
 680

finalisation, the assets of the undertaking are likely to be frittered away, it can assume
the management and the court will not enquire whether, there are any alterative
remedies available to the Government other than taking over the management when the
action is in the public interest.86
The exclusion of citizens from the trade, into which the State enters, may be 'complete'
or 'partial'. There is thus, no limitation on the State's power to make laws conferring
monopoly on itself, in respect of an area, and the person or persons to be excluded. 87
Thus, while the State enters into the business of road transport, it may take over only a
particular service,88e.g., the bus service, or exclude private operators from notified routes
or areas.89
The incidents of 'State monopoly' will be explained under the 'Trading by the State', post.
35I.  However, where such a right is conferred on a private individual or a group
of individuals to the exclusion of others, the reasonableness of the restriction imposed in
the latter case may be questioned by the Court, for, the amendment of Cl. (6) does not
cover this case.90
In such a case, the reasonableness has to be determined with reference to the circumstances relating
to the trade or business in question.
Provisions in Handloom (Reservation of Articles for Production) Act, 1985 reserving certain articles to
the handloom industry and to the exclusion of powerloom industry was held reasonable. It does not
create any monopoly in their favour especially when a large portion is made available for other
manufacturers.91 Where on the basis of policy of the Government for industrialisation of the State,
certain concessions are given to implement such policy, it is not creating a monopoly in favour of any
one, and in such cases, wide publicity also may not be necessary as in the case of contracts and
distribution of other largesse. The concessions given to implement the policy are only an incentive and
not a monopoly.92
A right under Art. 19(1)(g) does not extend to shutting out competition. Public interest is protected by
healthy competition.93 Competition in the trade or business may be subject to such restrictions as are
permissible and are imposed by the State by a law enacted in the interest of general public under Art.
19(6); but a person cannot claim independently of such restriction that another person shall not carry
on business or trade so as to affect his trade or business adversely. 94
In view of Art. 19(6)(ii), the carrying on of any trade, business industry or service by the State would
not be questionable on the ground that it infringes the right guaranteed under Art. 19(1)(g), even
though by the law the State excludes citizens wholly or partially from the trade or business entered
upon by the State. The State is, therefore, free to create a monopoly in favour of itself. 95 A monopoly
right cannot be conferred on a citizen under the Constitution nor can it be justified under the
Constitution. The State can enter into a monopoly, but if the State confers any monopoly right on a
citizen, it would be indefeasible and impermissible and would be an infraction of the inviolable
provision of the Constitution.96
Article 14 prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. But
selection of one manufacturer or contractor through the process of open competition is not creation of
monopoly and is not violative of Art. 19(1)(g).97 A policy decision to give preference to co-operative
societies for the grant of licence under the Assam Foodgrains (Licensing and Control) Order, 1961 is
not creating a monopoly.98 But in that the action of the Government was struck down for other reasons.
When monopoly in 'kendu' leaves was given to certain agents appointed by State, but those persons
were free from Government control and the profit was theirs and not of the State, it was held to create
monopoly and violates Art. 19(1)(g).99
'Monopoly' as contemplated under Art. 19(6) is something to the total exclusion of others.
A 'monopoly' is defined to be an institution or allowance from the sovereign power of the State, by
grant, commission or otherwise to any person or corporation for the sole buying, selling, making,
working or using of anything whereby any person or persons, bodies or corporations are sought to be
 681

restrained of any freedom or liberty they had before, or hindered in their lawful trade. All grants of this
kind are void at common law, because they destroy freedom of trade, discourage labour and industry,
restrain persons from getting an honest livelihood and put it in the power of the grantees to enhance
the price of commodities. They are void because they interfere with the liberty of the individuals to
pursue a lawful trade or employment. Creation of a small captive market in favour of State owned
undertaking out of a larger market is not creation of monopoly. 100

81a)  There are certain trades which are so inherently dangerous (e.g., the
business relating to intoxicating liquor) that the State cannot, without danger to the
society, allow normal trading by all persons. In such cases, the creation of a monopoly
right in favour of an individual or individuals for the purpose of effective State control
might be reasonable.101
84b)  Though not inherently dangerous, the business may require special
experience and stability, e.g., 'hedging contracts' relating to essential commodities. In
such cases, it would not be unreasonable for Government to grant a monopoly of such
business to an organisation whose fitness is out of question. 102 In the case of an
essential commodity, even the total elimination of a class of traders has been held to be
a 'reasonable restriction'.103 Drastic restrictions placed on dealers of gold by the Gold
(Control) Order was held valid.104

23 See Trayner's Latin Maxims - 4th Edition. SeeGodawat Pan Masala Products (P.) Ltd. v. Union of India, AIR 2004
SC 4057 : (2004) 7 SCC 68; Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574.

24 State of Punjab v. Devan Modern Breweries Ltd., (2004) 11 SCC 26. See alsoGodawat Pan Masala Products India
Pvt. Ltd. v. UOI, AIR 2004 SC 4057: (2004) 7 SCC 68; Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC
574.

25 P. Ramanatha Aiyer, Advanced Law Lexicon,3rd Edn., Book III.

26 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

27 R.M.D.C. v. Union of India, AIR 1957 SC 628 (631) : 1957 SCR 930; State of Bombay v. Chamarbaugwala, AIR
1957 SC 699 (718-721) : 1957 SCR 874.

28 R.M.D.C. v. Union of India, AIR 1957 SC 628 (631) : 1957 SCR 930; State of Bombay v. Chamarbaugwala, AIR
1957 SC 699 (718-721) : 1957 SCR 874.

29 State of U.P. v. Kartar Singh, AIR 1964 SC 1135 (1138) : (1964) 6 SCR 679.

30 State of U.P. v. Kartar Singh, AIR 1964 SC 1135 (1138) : (1964) 6 SCR 679.

31 Sant Ram, in re, (1960) 3 SCR 499 : AIR 1960 SC 932.

32 Har Shankar v. Dy. Commr., AIR 1975 SC 1121 (1030-32) : (1975) 1 SCC 737; Sat Pal v. Lt Governor, AIR 1979 SC
1550 : (1979) 4 SCC 232.

33 Southern Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863 : (1981) 4 SCC 391 (para. 18-20).

34 AIR 1957 SC 628 : (1957) SCR 930 (supra).

35 T.K. Abraham v. Travancore-Cochin, AIR 1958 Kerala 129 : ILR 1958 Kerala 148- FB .

36 Boota Singh v. State, AIR 1961 Punjab 21; Balbir Singh v. Collector of Central Excise and Customs, AIR 1960
Punjab 488; State of Punjab v. Krishnan Lal, AIR 1960 Punjab 664.

37 Bahadhur Singh v. UOI - unreported judgment referred to in Balley Singhv. State, AIR 1967 All 341 - after taking into
consideration the provisions of the Opium Act, 1857 and the Dangerous Drugs Act, 1930 .

38 King v. Connare, (1939) 61 CLR 596; Mansell v. Beck, 30 ALJ 346.

39 R.M.D.C. v. Union of India, AIR 1957 SC 628 (631) : 1957 SCR 930.

40 Beauharnis v. Illinois, (1952) 343 US 250.

 682

41 Near v. Minnesota, (1931) 285 US 697.

42 De Jonge v. Oregon, (1937) 290 US 353.

43 Cf. Beilan v. Board of Public Education, (1957) 357 US 399.

44 De Jonge v. Oregon, (1937) 290 US 353.

45 Beauharnis v. Illinois, (1952) 343 US 250.

46 State of Bombay v. Chamarbaugwala, AIR 1957 SC 699 (718-721) : 1957 SCR 874.

47 As DAS CJ. observed in Chamarbaugwala's case, AIR 1957 SC 699 : 1957 SCR 874, the American Congress would
have no power to control gambling and like spurious transactions, under its power over 'inter-State commerce' if they
were not held to be 'commerce'.

48 Krishnachandra v. State of M.P., AIR 1965 SC 307 (310-1) : (1964) 1 SCR 765, per HIDAYATALLAH, J.
(GAJENDRA GADKAR, WANCHOO, DAS GUPTA & SHAH, JJ., agreeing).

49 R.M.D.C. v. Union of India, AIR 1957 SC 628 (631) : 1957 SCR 930.

50 Krishan Kumar v. State of J.&K., AIR 1967 SC 1368 : (1967) 3 SCR 50 (para. 11), per SUBBA RAO, C. J. (SHAH,
SIKRI, RAMASWAMI & VAIDILINGAM, JJ., agreeing). Followed in Aamar v. Collector of Excise, AIR 1972 SC 1863 :
(1972) 2 SCC 442 (para. 13).

51 R.M.D.C. v. Union of India, AIR 1957 SC 628 (631) : 1957 SCR 930.

52 Krishan Kumar v. State of J.&K., AIR 1967 SC 1368 : (1967) 3 SCR 50 (para. 11), per SUBBA RAO, C.J. (SHAH,
SIKRI, RAMASWAMI & VAIDILINGAM, JJ., agreeing) followed inAamar v. Collector of Excise, AIR 1972 SC 1863 :
(1972) 2 SCC 442 (para. 13).

53 AIR 2013 SC 1812 : (2013) 6 SCC 573.

54 See alsoVital Dattatraya Kulkarni v. Shamrao Tukaram Power, (1979) 3 SCC 212; P.N. Kaushal v. UOI, (1978) 3
SCC 558; Krishna Kumar Narula v. State of J & K, AIR 1967 SC 1368; Nashirwar v. State of MP, (1975) 1 SCC 29;
State of AP v. Mc Dowell & Co., (1996) 5 SCC 709; Khoday Distilleries v. State of Karnataka, (1995) 1 SCC 574.

55 (2009) 12 SCC 209 : (2009) 11 JT 151.

56 AIR 1957 SC 699.

57 (1999) 9 SCC 700 : AIR 1999 SC 1867.

58 Krishan Kumar v. State of J.&K., AIR 1967 SC 1368 : (1967) 3 SCR 50 (para. 11), per SUBBA RAO, C.J. (SHAH,
SIKRI, RAMASWAMI & VAIDILINGAM, JJ., agreeing) followed inAamar v. Collector of Excise, AIR 1972 SC 1863 :
(1972) 2 SCC 442 (para. 13).

59 Nahirwar v. State of M.P., AIR 1975 SC 360 : (1975) 1 SCC 29.

60 Har Shankar v. Dy. Commr., AIR 1975 SC 1121 (para. 52). [RAY, C.J., MATHEW CHANDRACHUD, ALIGIRISWAMI,
GUPTA, JJ.] : (1975) 1 SCC 737.

61 Nahirwar v. State of M.P., AIR 1975 SC 360 : (1975) 1 SCC 29.

62 Commr of I.T. v. R.W.I.T. Club, (1954) SCR 289 (308-9) : AIR 1954 SC 85.

63 State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 (613) : (1960) 2 SCR 866.

64 Narain S. W. Mills v. Commr. of E.P.T., AIR 1955 SC 176 (181) : (1955) 1 SCR 952.

65 Seervai, Constitutional Law of India, 1967, at p. 283.

66 Southern Inspector of Taxes v. A.B., (1933) 1 KB 713 (719).

67 Krishan Kumar v. State of J&K, AIR 1967 SC 1368 : (1967) 3 SCR 50 (para. 11). See alsoKalyani Stores v. State of
Orissa, AIR 1966 SC 1686 : (1966) 1 SCR 865; State of Kerala v. P.J. Joseph, AIR 1958 SC 728.

68 Nahirwar v. State of M.P., AIR 1975 SC 360 : (1975) 1 SCC 29.

 683

69 Krishan Kumar v. State of J&K, AIR 1967 SC 1368 : (1967) 3 SCR 50 (para. 11). See alsoKalyani Stores v. State of
Orissa, AIR 1966 SC 1686 : (1966) 1 SCR 865; State of Kerala v. P.J. Joseph, AIR 1958 SC 728.

70 State of M.P. v. Nandalal, AIR 1987 SC 251 : (1986) 4 SCC 566 (para. 32); Kaushal v. Union of India, AIR 1978 SC
1457 : (1978) 3 SCC 558; Sat Pal v. Lt. Governor, AIR 1979 SC 1550 (1557) : (1979) 4 SCC 232. See alsoV.K.
Ashokan v. CCE, (2009) 14 SCC 85; State of Kerala v. Kandath Distillers, AIR 2013 SC 1812 : (2013) 6 SCC 573;
State of Bihar v. Nirmal Kumar Gupta, AIR 2013 SC 993 : (2013) 2 SCC 565.

71 State of M.P. v. Nandalal, AIR 1987 SC 251 : (1986) 4 SCC 566 (para. 32); Kaushal v. Union of India, AIR 1978 SC
1457 : (1978) 3 SCC 558; Sat Pal v. Lt. Governor, AIR 1979 SC 1550 (1557) : (1979) 4 SCC 232. See alsoV.K.
Ashokan v. CCE, (2009) 14 SCC 85; State of Kerala v. Kandath Distillers, AIR 2013 SC 1812 : (2013) 6 SCC 573;
State of Bihar v. Nirmal Kumar Gupta, AIR 2013 SC 993 : (2013) 2 SCC 565.

72 State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26.

73 Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574.

74 See alsoSat Pal & Co. v. Lt. Governor of Delhi, (1979) 4 SCC 232.

75 Fateh Chand v. State of Maharashtra, AIR 1977 SC 1825 (1839) : (1977) 2 SCC 670.

76 Sant Ram, in re, (1960) 3 SCR 499 (506) : AIR 1960 SC 932.

77 Srinivasa Enterprises v. Union of India, AIR 1981 SC 504 : (1981) 1 SCR 801 (para. 16).

78 B.R. Enterprises v. State of U.P., AIR 1999 SC 1867 : (1999) 9 SCC 700.

79 K.R. Lakshmanan (Dr.) v. State of Tamil Nadu, (1996) 2 SCC 226 : AIR 1996 SC 1153.

80 Parbhani Transport Society v. R.T.A., AIR 1960 SC 801 (805) : (1960) 3 SCR 177; Daruka v. Union of India, AIR
1973 SC 2711 : (1973) 2 SCC 617.

81 Ravichandran v. Govt. of Tamil Nadu, (2000) 1 CTC 477.

82 Ramana Narayan Shetty v. International Airport Authority, AIR 1979 SC 1628 : (1979) 3 SCC 477 : (1979) 2 LLJ
217.

83 Krishan Kumar v. State of J.&K., AIR 1967 SC 1368 : (1967) 2 SCR 732 (para. 11).

84 Adadasi Pradhan v. State of Orissa AIR 1963 SC 1047 : 1963 (Supp-2) SCR 691 (supra).

85 State of Tamil Nadu v. L. Abu Kavur Bai, AIR 1984 SC 326 : (1984) 1 SCC 515.

86 UOI v. Elphinstone Spg. & Wvg. Co. Ltd., AIR 2001 SC 724 : (2001) 4 SCC 139; see alsoMohd. Faruq v. State of
MP, AIR 1970 SC 93 : (1969) 1 SCC 853; Dwarakadas Srinivas v. Sholapur Spg. & Wvg. Co. Ltd., AIR 1954 SC 119 :
(1954) SCR 674.

87 Fateh Chand v. State of Maharashtra, AIR 1977 SC 1825 (1839) : (1977) 2 SCC 670. See alsoJ.Y. Kondala Rao v.
APSRTC, AIR 1961 SC 82 : (1961) 1 SCR 642; Parbhani Transport Co-op. Society Ltd. v. RTA, AIR 1960 SC 801 :
(1960) SCR 177; H.C. Narayanappa v. State of Mysore, AIR 1960 SC 1073 : (1960) 3 SCR 742.

88 Kondala v. A.P.S.R.T.C., AIR 1961 SC 82 (87) : (1961) 1 SCR 642.

89 Narayanppa v. State of Mysore, (1960) 3 SCR 742 (753) : AIR 1960 SC 1073.

90 This view of the Author is affirmed by State of Rajasthan v. Mohan Lal, AIR 1971 SC 2068 (2069) : (1971) 3 SCC
705.

91 Brij Bhushan v. State of J&K., AIR 1986 SC 1003 : (1986) 2 SCC 354.

92 M/s. Kasturi Lal Lakshmi Reddy v. State of J & K., (1980) 4 SCC 1 : AIR 1980 SC 1992. See alsoTej Singh
Sarupriya v. Rajasthan State Mines and Minerals Ltd., AIR 2001 Rajasthan 225.

93 Mithilesh Garg v. Union of India, AIR 1992 SC 443 : (1992) 1 SCC 168. See alsoHarnam Singh v. RTA, Calcutta
Region, AIR 1954 SC 190 : (1954) SCR 371.

94 The Nagar Rice & Flour Mills v. N. Teekappa Gowda & Bros., AIR 1971 SC 246 : (1970) 1 SCC 575 : (1970) 3 SCR
846.
 684

95 SeeAssociation of Registration of Plates v. UOI, AIR 2005 SC 1354 : (2004) 5 SCC 364.

96 State of Rajasthan v. Mohanlal Vyas, AIR 1971 SC 2068 : (1971) 3 SCC 705.

97 Association of Registration of Plates v. Union of India, AIR 2005 SC 469 : (2005) 1 SCC 679.

98 Mannalal Jain v. State of Assam, AIR 1962 SC 386 : (1962) 3 SCR 936. See alsoSahakari Sasta Anaj Vikreta
Sangh v. State of MP, AIR 1981 SC 2030 : (1981) 4 SCC 471.

99 Akadasi Padhan v State of Orissa, AIR 1963 SC 1047 : 1963 (Supp. 2) SCR 691; Rasbihari Panda v. State of
Orissa, AIR 1969 SC 1081 : (1969) 1 SCC 414; New Bihar Biri Leaves Co. v. State of Bihar, AIR 1981 SC 679 : (1981)
1 SCC 537.

100 Indian Drugs and Pharmaceuticals Ltd. v. Punjab Drugs Manufacturers' Association, AIR 1999 SC 1626 : (1999) 6
SCC 247.

101 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246; State of
Orissa v. Harinarayan, AIR 1972 SC 1816 : (1972) 2 SCC 36 (para. 17).

102 M.B. Cotton Association v. Union of India, AIR 1974 SC 634.

103 Narendra Kumar v. Union of India, (1960) 2 SCR 375 (390) : AIR 1960 SC 430. [The Essential Commodities Act,
1955 is now totally protected by Sch. IX, Entry 126].

104 Manick Chand Paul v. Union of India, AIR 1984 SC 1249 : (1984) 3 SCC 65.

55c)  Canalisation of a particular business in favour of specified individuals has

also been upheld as 'reasonable', where vital interests of the community are concerned,
e.g., the distribution of essential commodities, when affected by black marketing,
profiteering, hoarding and the like;1 or if the business affects the economy of the country. 2
23d)  On the same principle, business having an impact on the national economy 3,
such as that of import and export4, or business affected with profiteering or the like 5 have
been considered on a special footing and it has been held that the refusal of the
opportunity to enter into such business to persons outside a selected agency, cannot be
said to be unreasonable.
14e)  But where there is nothing innocuous in the nature of the business itself,
e.g., the business of selling vegetables,6 the prohibition of normal trading by all persons
and the granting of a monopoly right to a particular individual cannot be held to be
reasonable.
In such a case, even though a monopoly is not granted to any particular trader and there
is no express prohibition against the carrying on of the business by anybody, there is an
unreasonable restriction on the freedom of business if the effect of a Municipal by-law,
charging a licence fee, is to bring about a total stoppage of a business in the commercial
sense.7

20II.  It follows that in the absence of exceptional circumstances, any pre-

Constitutional grant or contract creating a monopoly in favour of an individual would be
void because of contravention of Art. 19(1)(g).8
10V.  Since the exception in Cl. (6) can be created only by a 'law' made by the
State, where there is no law authorising a monopoly, Cl. (6)(ii) cannot be invoked, and
the reasonableness of the administrative order seeking to create such monopoly may be
questioned.9 In Akadasi Pradhan v. State of Orissa ,10 the Court upheld the validity of an
Orissa law conferring monopoly rights on the State in the matter of trade in Kendu
leaves. Nevertheless, court restricted the scope of protection under Art. 19(6)(ii). It was
held that Art.19(6)(ii) protects only those statutory provisions which are "basically and
essentially necessary" for creating State monopoly and not such provisions as are only
"subsidiary, incidental or helpful" of the State operation of State monopoly. Such
 685

subsidiary provisions are not immunized by Art.19(6)(ii) and they would have to satisfy
the twin tests of "reasonableness" and "public interest" as laid down in Art. 19(6). 11
What constitutes a monopoly

37.  The Dictionary meaning of the word 'monopoly' is the exclusive possession
or control of a commodity or business and the elimination of free competition with
respect to it. A 'monopoly' is defined as an exclusive right granted to a few of something
which was before of common right. It is a privilege conferred on one or more persons, to
the absolute exclusion of others. A monopoly is that which has been granted, as a
monopoly of trade or of the manufacture of any particular article, to the exclusion of all
competitors. It is withdrawing that which is a common right from the community and
vesting it in one or more individuals to the exclusion of all others. 12 For the purpose of
Art. 19(6), "monopoly" means "total exclusion of others". Creation of a small captive
market in favour of State-owned undertaking out of a larger market cannot be termed as
"monopoly".13 Such privilege may be granted by the State in favour of itself or a private
individual or body of individuals. Selection of one manufacturer through the process of
open competition is not creation of any monopoly in violation of Art. 19(1)(g) read with
Cl. (6). When notice inviting tender is open to response to all and if one single tenderer
is ultimately selected, for a region or a State, it is not creation of monopoly. 14
41.  But no monopoly is created where the law empowers a licensing authority to
grant license having regard to certain considerations, one of which result in a preference
of co-operative societies in certain areas,15 which form a distinct class.16 A Government
circular for settling "sairats" with bona fide co-operative societies consisting of genuine
fishermen and excluding middleman and speculator, was held that such a settlement of
fisheries in favour of co-operative societies does not create a monopoly and Art. 19(1)(g)
is not violated.17
A favourable treatment in favour of public sector undertakings especially while dealing with essential
commodities is not discriminatory and not violative of Art. 19(1)(g). 18 It was held therein that a contract
for a long period for the supply at a lower rate to co-operative society, on par with State Electricity
Board or Fertilizer Corporation or Municipal Corporation as justified. Same is the case of a
Government company.19
As regards the question whether the trade, etc. protected by Art. 19(6)(ii) could be carried on through
agents, the Supreme Court held that the State could only act as a human agency and could carry on
trade or business through a Government department or through officers who are members of public
service. But there may be cases where the mode of carrying on trade or business were not suitable,
as for example, where the trade was seasonal, and in such cases, Government could engage agents
working for and on behalf of Government for remuneration and not on their account or in their own
interest.20 Agency in this sense was permissible and was within the scope of Art. 19(6)(ii). 21
In Rasbihari v. State of Orissa ,22 the question was regarding the validity of Orissa Kendu Leaves
(Control of Trade) Act, 1961. Under the Act, the State has assumed monopoly in trade of Kendu
leaves. Under the Scheme adopted by Government under s. 10 of the Act, Government invited offers
for advance purchases only for persons who had purchased kendu leaves during 1967. The
petitioners challenged the Scheme as a colourable device to make it appear constitutional under Art.
19(1)(g) & 6(ii), whereas it was intended for the benefit of the supporters of the party in power and to
increase party's funds to the detriment of the public. In that case, Supreme Court observed: "(a) (i) As
held in Akadasi's case (supra) (i) the expression "law relating to monopoly" covered only provisions
"integrally and essentially" connected with the creation of monopoly and provisions which were
incidental or subsidiary to the creation of monopoly must stand the test of Art. 19(1)(ii). The Act cannot
be used by the State for the private benefit of agents; it must be administered only for the benefit of
the general public and any arrangement in which under the guise of a monopoly the State permitted a
set of persons to make profit for themselves by carrying on business in Kendu leaves on their behalf
will be invalid. (b) Section 10 of the Act is a counterpart of s. 3 and authorises the Government to sell
or otherwise dispose Kendu leaves in such manner as the Government may direct. If the monopoly of
 686

purchasing Kendu leaves by s. 3 is valid, in so far as it is intended to be administered only for the
benefit of the State, the sale or disposal of Kendu leaves by the Government must also be in the
public interest and not to serve the private interests of any person or class of persons. (c) If the
Scheme creates a class of middlemen who would purchase Kendu leaves from the Government at
concessional rates and would earn large profits disproportionate to the nature of the services rendered
or duty performed by them, it cannot claim the protection of Art. 19(6)(ii). (d) Section. 10 leaves the
method of sale and disposal of Kendu leaves to the Government as they think fit. The action of the
Government if conceived and executed in the interest of general public, it is not open to judicial
scrutiny. But it is not open to the Government thereby to create a monopoly in favour of third parties
from their own monopoly. (e) The impugned scheme is not integrally and essentially connected with
the creation of monopoly by the Act and the scheme must stand the test of Art. 19(6). As no attempt is
made by Government to support the scheme as reasonable restriction under Art. 19(6), it violated Art
s. 14 and 19(1)(g) and hence void.
A Government policy to purchase certain medicines for Government hospitals only from public sector
manufacturers was held not to amount to monopoly. The policy does not prohibit other manufacturers
from manufacturing and selling their products to other consumers. The Government's requirement for
drugs is very limited. There is a lot of public demand for drugs in the open market from other
consumers. It was held: "Monopoly as contemplated under Art. 19(6)(ii) of the Constitution is
something to the total exclusion of others. Creation of a small captive market in favour of State-owned
undertaking out of large market can hardly be treated as creation of monopoly as contemplated under
Art. 19(6) of the Constitution, more so because this captive market consists of State owned hospital
and dispensaries". The Court concluded that no monopoly is created by the impugned policy.
When the prohibition is only with respect to the exercise of the right referable only to a particular area
of activity or relating to particular matters, there is no total prohibition. Hence, when total prohibition is
imposed on the slaughter of cow and her progeny, the ban is total with regard to slaughter of one
particular class of cattle and is not on total act ivity of butchers as they are left free to slaughter cattle
other than specified in the impugned Act.23
Right to trade in a commodity in which the State has a monopoly

38.  Where the State has a monopoly, not merely because, the individual has no
fundamental right to trade in it (as in the case of intoxicant) but also where a monopoly
has been created by a law passed under Cl. (6)(ii) of Art. 19, 24 relating to a commodity as
regards which a citizen has a fundamental right to trade.
The law relating to such trading act ivities must be presumed to be reasonable and in the
interest of general public. A law relating to State monopoly should be presumed to be
reasonable and the State is not required to justify its trade as "reasonable" and as "being
in the interests of general public".25 In such cases, no objection can be taken if the State
carries the business as a monopoly, complete or partial to the exclusion of all or some
citizens only or in competition with any citizen.26
It was held that when State creates a monopoly for itself, the right of citizens to carry on
trade has been subordinated to the right of the State. 27
The citizen cannot carry on business in that commodity except on the terms laid down in
the statute by which the monopoly was created. Such statute cannot be challenged as
an unreasonable restriction upon the Petitioner's fundamental right because of the
second part of Cl. (6) of Art. 19.
42.  In this context, it is to be noted that to say that a citizen has no fundamental
right to trade in certain commodities, such as intoxicants, and the State has, therefore,
the right to settle the right to deal in such goods on; such manner as it likes, would not
confer upon the State any extra--Constitutional power to raise any revenue from any
licensee of such right unless the power to levy such tax or duty can be derived from any
of the Entries in the 7th Sch. to the Constitution. 28
 687

Reasonableness of taxing laws

33.  Where a tax is imposed upon a trade or business without legal authority 29 or
in contravention of a limitation imposed by the Constitution (e.g., Art. 286),30 it constitutes
a patent infringement of the right guaranteed by Art. 19(1)(g). Tax laws are also subject
to fundamental rights under Art. 19 and frequent challenge is under Art. 19(1)(f) and (g).
In Express Newspaper (P) Ltd. v. UOI ,31 there was an unsuccessful challenge to the
decision of a Wage Board on the ground that the wages fixed by it interfered with the
freedom of press which was included in freedom of speech and expression. Approving
and following the decision of American Supreme Court in Grosjean v. American Press
Co .,32 for the proposition that a statute imposing a tax on the business of publishing
advertisement would be void if it was found to be deliberate and calculated device in the
guise of a tax to limit the circulation of information to which the public was entitled by
virtue of the constitutional guarantee.
36I.  The early view suggested in Ramjilal v. I.T.O .33 that the taxing power under
our Constitution is an independent power embodied in Part XII, so that Part III could not
be attracted to it in any case, has been dispelled by a number of later decisions. 34
21II.  Hence, the reasonableness of a taxing statute may be challenged not only
where it does not lay down any procedure for assessment or recovery of the tax 35 but
also where the procedure laid down is not reasonable. 36 In Pattabhiraman v. Asst.
Commr. of Urban Land Tax ,37 it was held that s. 6 of Madras Urban Land Tax Act 1966
conferred an unguided power to Asst. Commissioner to fix the market value of urban
land tax and the test laid down for determining land tax was per se quite an arbitrary
estimate. The words "if sold in the open market" will be quite meaningless in many cases
as there is no open market in the built up areas and such market is not conceivable. But
the levy of a tax lawfully imposed under a statute with the competence of the Legislature,
cannot be deemed to infringe the fundamental right guaranteed under Art. 19(1)(f) and
(g).38
11V.  Mere excessiveness of a tax39 or reduction of profits40 does not render it an
unreasonable restriction on the freedom of business41; but it may be so if it seeks to
confiscate property in the name of taxation.42 A tax law will be struck down if its
magnitude is confiscatory and requires the tax payer to sell his property for payment of
tax or results in closure or destruction of the business of the person taxed. 43 When the
taxing power of the State is used to impose a fee by way of a condition precedent to the
exercise of fundamental right obviously, such an imposition would amount to a restriction
on the right, for, without payment of such fee, the business cannot be carried on at all. 44 It
was also held therein that an illegal tax is always an unreasonable restriction and will
necessarily violate freedom of trade, occupation or business. Taxes per se are not a
restriction on the right under Art. 19(1)(g) and their excessiveness or otherwise cannot
be agitated under this provision.
6.  Provision for arrest and detention of a wilful defaulter or for prevention of
evasion of a tax would not be unreasonable in the case of payment of public revenues. 45
4I.  So long as a sales tax is not confiscatory and does not change its character
as a tax on the transaction of sale, as distinguished from a tax on the income of a dealer,
it cannot be said to constitute an unreasonable restriction in contravention of Art. 19(1)
(f)-(g) on the mere ground that the dealer is unable to pass it on to the purchaser or
consumer.46
1II.  Retrospective operation of a taxing statute is not necessarily unreasonable, 47
but it may be so in particular circumstances.48 The court may in such cases examine the
reasonableness of retrospectivity.49
The test whether a retrospective imposition of tax operates so harshly as to violate fundamental right
under Art. 19(1)(g), the court considers such factors as relevant as the context in which retroactivity
was contemplated, such as whether the law is one of validation of taxing statute struck down by court
for certain defects, the period of such retroactivity and the degree and extent of any unforeseen or
 688

unforeseeable financial burden for the past period. A sales tax law which was declared void was
validated retrospectively after curing the defects pointed out by court. The court declared the law as
valid. Court said that had the law not been validated, dealers who had already collected the tax from
the customers would have a windfall as they would not have had any such right that the original law
been held valid.50
Provisions in taxing statute designed to prevent evasion of tax do not amount to an unreasonable
restriction under Art. 19(1)(g). Section 16(3)(a)(i) and (ii) of Income Tax Act which imposes on a
person tax in respect of income earned by his wife and minor children in partnership business was not
unreasonable as it was designed to prevent evasion of tax by carrying on business nominally in the
name of a wife and minor child.51
(II) PROCEDURAL REASONABLENESS

34.  As has been explained earlier, a procedure which does not comply with the
principles of natural justice must be held to unreasonable, 52 in the absence of abnormal
circumstances justifying the departure.
34. Exceptions are, however, acknowledged in exceptional circumstances, such
as--
11. An emergency.53
11. The maintenance of essential supplies.54
5. The trade being inherently dangerous.55 The right to practise any
profession or carry on any occupation, trade of business does not extend
to practising profession or carrying on an occupation, trade or business
which are inherently vicious and pernicious. It does not entitle a citizen to
carry on trade or business activities which are immoral and criminal. These
are res extra commercium i.e., they are outside commerce. May be the
interest of a citizen lies in carrying on trade or business which is
pernicious, but demands of public interest have to be given primacy and
they override individual interest. Since the business of sale of lottery tickets
is of pernicious nature, no person has a legal or a fundamental right in it. 56
A trade or business which may seriously affect safety, health and peace of
community, which is guaranteed, can be prohibited.57
In adjudging the reasonableness of the restriction imposed on the exercise
of power on the fundamental rights of the citizen, absence of a power for
judicial review and of machinery to review an order recalling or amending
the order in exercise of that power have to be given due weight. 58
40.
34. A provision for judicial review of an administrative decision is one of the
criteria of reasonableness59 but it is not an essential condition of reasonableness if
there are other safeguards against arbitrary act ion of the administrative
authority60 such as administrative appeal or revision.61
Where an appeal is provided from the decision of a Tribunal and it is obliged to
act quasi-judicially the reasonableness of the law cannot be challenged on the
ground that it did not specifically provide for notice or for hearing. 62
But judicial review of an administrative decision is not an essential condition of
'reasonableness' in all cases. Thus,--
12. The validity of the Minimum Wages Act , 1948 has been upheld on
the ground that though there is no provision for judicial review of the
decision of Government in the matter of fixing the minimum wages,
Government acts with the advice of' an Advisory Board which consists of
an equal number of representatives of both the employers and employees
engaged in the industries for which the wages are to be fixed. There is thus
sufficient safeguard against arbitrary exercise by Government of its
 689

discretionary power and the restrictions cannot be held to be

unreasonable.63
12. Though there was no provision for appeal, the provision in a Wakf
Act which authorised the majlis to alter or modify the budget prepared by
the Mutwalli was held to be reasonable because the authority of the majlis
was restricted by the provision that they would not modify a budget to an
extent inconsistent with the wishes of the Wakf in so far as it could be
ascertained.64
41.

37I.  In general, the vesting of absolute discretion in an administrative authority to

regulate the exercise of a fundamental right would be an unreasonable restriction on the
exercise of the fundamental right.65 The fundamental right of a citizen to carry on trade
can be restricted only by making a law imposing in the interest of the general public
reasonable restriction on the exercise of such a right, that such restriction should not be
arbitrary or excessive beyond what is required in the interest of general public and that
an uncontrolled and uncanalised power conferred on the authority would be an
unreasonable restriction on such right. Though legislative policy may be expressed in a
statute, it must provide a suitable machinery for implementing that policy in such a
manner that such implementation does not result in undue or excessive hardship and
arbitrariness. A provision which leaves an unbridled power to an authority cannot in any
sense be characterised as reasonable.66
In Harak Chand v. UOI ,67 the provision in Gold Control Act for licensing of dealers was
held invalid because it conferred unguided power on the executive. The administrator in
granting licences was to have regard to such factors as "suitability of the applicant";
anticipated demand as "estimated by him for the ornament in the region and 'public
interest'. It was held that these terms are vague, not capable of objective assessment,
provided no objective norm to guide administrator's discretion and thus unfettered power
had been given to him to grant or refuse a licence. The court also held it unreasonable to
prescribe the same condition for renewal of licence as the initial grant of licence as that
rendered the entire future of business uncertain and subject to arbitrary administrative
will. In Chandrakant Krishnarao Pradhan v. Collector of Customs ,68 the question related
to the power of Customs Collector to reject an application under Customs House Agents
Licensing Rules, 1960, which simply said that the authority can reject the application, if
he is of opinion that the applicant is not 'suitable' was held invalid as it vested discretion
in the Collector to reject the application for "trumpery reason". The Collector was not
required to give reason while rejecting the application. But the provision authorising the
collector to cancel a licence for failure to comply with rules was held valid as rules were
made for compliance and not for its breach and there was also a provision for appeal to
a higher authority. A provision in Calcutta Corporation Act required a licence for the use
of premises for a purpose which in the opinion of the Corporation was dangerous to life,
health or property. The opinion of the Corporation was made conclusive as it could not
be challenged in court. The provision was declared unconstitutional being unreasonable
under Art. 19(6) as it put carrying out of a business entirely at the mercy of the
Corporation.69 The function of canceling a licence has been characterised as a
quasijudicial function and hence principles of natural justice must be followed. 70 A rule
conferring an uncontrolled power to cancel a licence without stipulating the reason be
given and some procedure to be followed by licensing authority for the purpose is not
reasonable.71
But the vesting of discretionary power in an administrative authority cannot he held to be
unreasonable where the policy according to which the discretion is to be exercised is laid
down in the law.72
Even if very wide powers are given to an authority, that by itself may not be a ground to
contend that it is not valid, if it can be found from Preamble, Statement of Objects and
 690

Reasons and the relevant provisions of the Act and Rules that the authority has to
exercise the powers for implementing such policy. In such cases, the power is not
unguided.73
22II.  On the other hand--
26. The vesting of the power to decide a dispute relating to the exercise of a
fundamental right in a judicial or quasi-judicial authority constitutes a reasonable
restriction on the fundamental right, inasmuch as such tribunal has necessarily to
decide after hearing the parties and after considering the reasonableness of the
restriction involved.74 Thus, though the right to determine the mode of employment
of labour is an ingredient of the fundamental right of an employer, he cannot urge
that the conferment of power upon industrial tribunals to adjudicate upon labour
disputes constitutes an unreasonable restriction upon the exercise of that
fundamental right.75
24. A law imposing a civil liability cannot, ex facie, be regarded as unreasonable
merely because it prescribes a special procedure for speedy recovery, e.g., the
procedure for recovery of arrears of land revenue, or provides for imprisonment in
default of payment.76

On the other hand,--

If a law permits the administrative authority not to give reasons for his decision affecting
a right guaranteed by Art. 19(1), it would be prima facie un-reasonable because it would
render nugatory the power of the Supreme Court under Art. 32. 77But when a statutory
provision requiring the authority to give reasons for an act ion taken by it is usually
regarded as mandatory and the court will insist on a strict compliance with such
requirement. When a statute enabling an authority to take an action in the discretion
requires that the grounds on which it forms its opinion should be stated by it in the order
itself, non-statement of grounds would vitiate the act ion. The reason is that such a
provision is in public interest and it helps to avoid arbitrary or capricious exercise of
discretionary power and exclude discrimination or extraneous consideration. 78
It is now clearly settled that a system of licensing of a trade is not unreasonable provided
that licensing officers are not left with uncontrolled power to grant, revoke or cancel a
licence. There should be reasonable norms, policy or principles to guide administrative
power as well as some procedural safeguards. In Municipal Corpn., Ahmedabad v. Jan
Mohammed ,79 Supreme Court said: "Where, however, power if entrusted to an
administrative agency to grant or withhold a permit or licence in its uncontrolled
discretion the law ex facie infringes the fundamental rights under Art. 19(1)(g)".
23II.  There may be circumstances in which a post-decisional (instead of pre-
decisional), hearing would meet the requirements of natural justice 80 for examine in the
matter of price-fixation.81
Reasonableness of permits and licences
Though the nomenclature is sometimes blurred,82 there is a distinction between a 'permit' and a
'licence'. A 'permit' is provided for by the Legislature when it is intended to prohibit a business except
under a permit or authority issued by a prescribed administrative authority. The object of a 'licence', on
the other hand, is to regulate the conditions under which a business may be carried out. 83 A licence is
not necessarily a permit. A licence is intended to regulate business while a permit would be one
without which a business can ever be started so that a permit may amount to a prohibition of the
business in regard to persons who are unable to obtain the same. 84
Under our Constitution, a legislative provision for either a permit or a licence must be 'reasonable' in
order to be a valid restriction under Cl. (6) of Art. 19, though different considerations may have to be
taken into account in determining the reasonableness in the two cases.
(1) Reasonableness of permits.--I. It has been stated earlier that, as a rule, any provision which
imposes a system of previous restraint and makes the exercise of a fundamental right dependent
 691

upon the uncontrolled discretion of an administrative authority, is prima facie an infringement of that
fundamental right.
It follows, therefore, that, in the absence of exceptional 85 circumstances, a law which confers on an
administrative authority absolute discretion to grant or withhold 86, or revoke87 a permit for the carrying
on of restraint and, makes the exercise of a fundamental right dependent upon the fundamental right
to carry on that business. In some cases, the permit restrictions have been upheld on the ground that
the impugned law provides for giving the applicants an opportunity of being heard before disposing of
the application for permit or licence.88 In Dwaraka Prasad v. State of UP ,89 the authority was given
power to issue a licence. But such power was left to the unrestrained will of a single individual. There
was no provision for any appeal or review. The only safeguard was that the authority has to give
reason for the action taken by him. This was held to be insufficient, as there was no higher authority to
examine the propriety of these reasons. Every act ion taken by the authority depended on the
subjective satisfaction. This was held to be unreasonable. 90 Clause 9(a) of Imports (Control) Order,
1955 authorises the Chief Controller of Imports and Exports to cancel any licence if it was granted
through inadvertence or mistake or has been obtained fraud or misrepresentation. Clause 10 of the
Order provides that no action shall be taken for cancellation unless the licensee has been given
reasonable opportunity of being heard. It was held to be a valid and reasonable restriction. 91
In Veerappa Pillai v. Raman ,92 the Supreme Court, of course, upheld the validity of the Motor Vehicles
Act , 1939 (Now repealed by the Motor Vehicles Act , 1988 (59 of 1988)) under which the right to
carry on the business in motor transport is made dependent upon a permit which is issued by an
administrative authority in his absolute discretion and the administrative authority is not bound to grant
a permit even though the applicant satisfies all the conditions prescribed by the statute. In that case,
however, the validity of the statute was not considered at all with reference to Art. 19(1)(g) and the
only question examined by the Supreme Court was whether the High Court could interfere with the
decisions of the administrative authorities created by the Act in view of the fact that the Act made
elaborate provision for appeal and revision by setting up a regular hierarchy of administrative bodies.
The Veerappa case93 is no authority for the proposition that a law which confers absolute discretion to
grant or withhold a permit for the carrying on of a business, to carry on which the person has a
fundamental right, would still be a 'reasonable' restriction within the meaning of Art. 19 of the
Constitution. The granting of a licence with respect to a trade which is not inherently dangerous 94
cannot be regarded merely as a privilege. A citizen has the right 95 to carry on such trade subject to
such restrictions as may he imposed by the State, provided they are reasonable, 96 and a law, which
empowers an administrative authority to refuse a licence, at his discretion, even though the applicant
has complied with the conditions specified in the statute, must be regarded as unreasonable. The
power to decide whether the statutory conditions have been fulfilled, must necessarily be given to that
authority,97 and this discretion is wider where (as in Sections 47 of the Motor Vehicles Act ) the
authority is empowered to take into account administrative considerations, apart from certain specified
conditions,--such as objections from a police or other local authority 98. But, apart from this, if the
licensing authority is guided by considerations extraneous to the statute, his act ions would be ultra
vires, particularly because his function is quasi-judicial,99 except where he is authorised by the Act on
policy considerations.100
In short,--

35.  If the law requires that an act which is inherently dangerous, noxious or
injurious to the public interest, health or safety, or is likely to prove a nuisance to the
community, shall be done under a permit or licence of an executive authority, it is not per
se unreasonable; and no person may claim a licence or permit to do that act as of
right.101
38I.  Where the law providing for grant of a licence or permit confers a discretion
upon an administrative authority regulated by rules or principles, express or implied, and
exercisable in consonance with the rules of natural justice, it will be presumed to impose
a reasonable restriction.102
 692

24II.  Where, however, power is entrusted to an administrative authority to grant or

withhold a permit or licence in its uncontrolled discretion, the law ex facie infringes the
fundamental right under Art. 19(1)(g).103
Vesting of an absolute and uncontrolled power in an authority falls outside the Constitution
altogether.104
In Papanasam Labour Union v. Madura Coats Ltd .,105 the Supreme Court considered the validity of
Sections 25M of the Industrial Disputes Act which requires an employer to secure permission of an
authority before laying off workers. The Court upheld the provision because of "procedural
reasonableness". The Court said that the provision is valid. It has taken care of the following
safeguards:- (1) The concerned authority is to decide the employer's application expeditiously, and in
any case, within a period of two months from the date of seeking permission, "otherwise the
permission should be deemed to have been granted; (2) The concerned authority has to record
reasons in writing for granting or refusing permission applied for; and (3) the order has to be
communicated to the applicant. As regards substantive reasonableness, the Court ruled that the
power in question would be exercised by "a specified authority" and as it can well be presumed, it
would be a high authority who would be conscious of his duties and obligation.

1 Glass Chatons Assocn. v. Union of India, AIR 1961 SC 1514; Meenakshi Mills v. Union of India, AIR 1974 SC 366
(386); Bhatnagars v. Union of India, (1957) SCR 701.

2 State of Rajasthan v. Vyas Mohan Lal, (1971) UJSC 222 (223) : AIR 1971 SC 2068; Harichand v. Mizo Dt. Council,
(1967) 1 SCR 1012.

3 State of Rajasthan v. Vyas Mohan Lal, (1971) UJSC 222 (223) : AIR 1971 SC 2068; Harichand v. Mizo Dt. Council,
(1967) 1 SCR 1012.

4 Glass Chatons Assocn. v. Union of India, AIR 1961 SC 1514 : (1962) 1 SCR 862.

5 Meenakshi Mills v. Union of India, AIR 1974 SC 366 (386) : (1974) 1 SCC 345; Bhatnagars v. Union of India, (1957)
SCR 701 : AIR 1957 SC 478.

6 Rashid Ahmed v. Municipal Board, (1950) SCR 566 : 1950 SCR 568 : AIR 1950 SC 163.

7 Yasin v. Town Area Committee, AIR 1952 SC 115 : 1952 SCR 572.

8 This view of the Author is affirmed by State of Rajasthan v. Mohan Lal, AIR 1971 SC 2068 (2069) : (1971) 3 SCC
705.

9 Punjab Drugs Assocn. v. State of Punjab, AIR 1989 P&H 117 (para. 16). New Bihar Biri Leaves v. State of Bihar, AIR
1981 SC 674 : 1980 Supp SCC 649 (para. 45).

10 AIR 1963 SC 1047 : 1963 (Supp-2) SCR 691.

11 See alsoRasbihari v. State of Orissa, AIR 1969 SC 1081: (1969) 1 SCC 414 : (1969) 3 SCR 374; New Bihar Biri
Leaves Co. v. State of Bihar, AIR 1981 SC 674 : 1980 (Supp) SCC 649 (supra).

12 P. Ramanathaiyer, Avanced Law Lexicon, 3rd Edn., Book 3, p. 3061.

13 Indian Drugs and Pharmaceuticals Ltd. v. Punjab Drugs Manufacturers' Association, AIR 1999 SC 1626 : (1999) 6
SCC 247 (supra).

14 Association of Registration of Plates v. Union of India, AIR 2005 SC 469 : (2005) 1 SCC 479.

15 Mannalal v. State of Assam, AIR 1962 SC 386 : (1962) 3 SCR 936 (para. 8).

16 Cf. M.P. Ration Soc. v. State of M.P., AIR 1981 SC 2001 : (1981) 4 SCC 535.

17 Sudhir Chandra Mandal v. State of Orissa, AIR 1989 Ori 70.

 693

18 Oil & Natural Gas Commission v. Association of Natural Gas Consuming Industries of Gujarat, AIR 1990 SC 1851 :
1990 (Supp.) SCC 397.

19 Hindustan Paper Corporation Ltd. v. Govt. of Kerala, AIR 1986 SC 1541 : (1986) 3 SCC 398. See alsoInternational
Data Management Ltd. v. State of U.P. International Data Management Ltd. v. State of U.P., AIR 1991 Allahabad 380.
But seeMahindra & Mahindra Ltd. v. State of A.P., AIR 1986 A.P. 332.

20 Amritsar Municipality v. State of Punjab, AIR 1969 SC 1100 : (1969) 1 SCC 475 : (1969) 3 SCR 447.

21 See alsoT. Mishra v. State of Orissa, AIR 1971 SC 733 : (1971) 1 SCC 153.

22 AIR 1969 SC 1081 : (1969) 1 SCC 414 : (1969) 3 SCR 374 (supra).

23 State of Gujarat v. Mirzapur Moti Kureshi Kasaab Jamat, AIR 2006 SC 212 : (2005) 8 SCC 534 (supra); see
alsoKrishna Kumar v. Municipal Committee, (2005) 8 SCC 612.

24 New Bihar Biri Leaves v. State of Bihar, AIR 1981 SC 679 : (1981) 1 SCC 537 (paras. 28, 29).

25 Akadasi Padhan v State of Orissa, AIR 1963 SC 1043 : 1963 (Supp. 2) SCR 691.

26 P.T. Society v. RTA., Aurangabad, AIR 1960 SC 801 : (1960) 3 SCR 177.

27 Ram Chandra Palai v. State of Orissa, AIR 1956 SC 298 : (1956) SCR 28; J.Y. Kondala Rao v. A.P. Road Transport
Corpn., AIR 1961 SC 82 : (1961) 1 SCR 642.

28 Synthetics v. State of U.P., (1990) 1 SCC 109 : AIR 1990 SC 1927 (paras. 105-108). [But see the majority view
expressed by LAKSHMAN J in State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26 from para 112
onward).

29 Kailash Nath v. State of U.P., AIR 1957 SC 790 (792) : (1957) 8 STC 358; State of Kerala v. Joseph, AIR 1958 SC
296 : 1958 SCJ 614; Yasin v. Town Area Committee, (1952) SCR 572 : AIR 1952 SC 115.

30 Himmatlal v. State of M.P., (1954) SCR, 1122 : AIR 1954 SC 403. See alsoState of Kerala v. P.J. Joseph, AIR 1958
SC 296; Kailash Nath v. State of U.P., AIR 1957 SC 790; Gopal Narain v. State of U.P., AIR 1964 SC 370.

31 AIR 1958 SC 578 : (1959) SCR 12 (supra).

32 (1935) 297 US 233.

33 Ramjilal v. I.T.O., (1951) SCR 127 (137) : AIR 1951 SC 97.

34 Cf. Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232 (243, 259) : (1961) 1 SCR 809; Empire Industries v. Union
of India, AIR 1986 SC 662 : (1985) 3 SCC 314 (para. 49). See alsoBalaji v. I.T.O., AIR 1962 SC 123 : (1962) 2 SCR
983.

35 Kunnathat v. State of Kerala, AIR 1961 SC 552 : (1961) 3 SCR 77 : (1961) 2 SCJ 269; Balaji v. I.T.O., AIR 1962 SC
123 (128) : (1962) 2 SCR 983; Jagannath v. Union of India, AIR 1962 SC 148 : (1962) 2 SCR 118.

36 Cf. Ram Bachan v. State of Bihar, AIR 1967 SC 1404 (1408) : (1967) 3 SCR 1. See alsoJagannath Baksh Singh v.
State of U.P., 1962 SC 1563 : (1963) 1 SCR 220.

37 AIR 1971 Mad 61(FB) .

38 Bhopal Sugar Industries v. STO, AIR 1964 SC 549 : (1964) 1 SCR 543.

39 Madar v. State of A.P., 1972 SC 1804 (1807, 1809) : (1972) 4 SCC 635; Prag Oil Mills v. Union of India, AIR 1978
SC 1296 : (1978) 3 SCC 459; Malwa Bus Service v. State of Punjab, AIR 1983 SC 634 : (1983) 3 SCC 237) (para. 22).

40 Nazeria Motor Service v. State of A.P., AIR 1970 SC 1864 : (1969) 2 SCC 576; Fed. of Hotels v. Union of India, AIR
1990 SC 1637 : (1989) 3 SCC 634 (para. 24).

41 Madar v. State of A.P., 1972 SC 1804 (1807, 1809) : (1972) 4 SCC 635; Prag Oil Mills v. Union of India, AIR 1978
SC 1296 : (1978) 3 SCC 459; Malwa Bus Service v. State of Punjab, AIR 1983 SC 634 : (1983) 3 SCC 237) (para. 22).

42 Kodar v. State of Kerala, AIR 1974 SC 2272 : (1974) 4 SCC 422 (para. 10).

43 Moopil Nair KT. v. State of Kerala, AIR 1961 SC 552; Commissioner of Commercial Taxes, Board of Revenue v.
Ramkrishnan Shrikrishnan Jhaver, AIR 1968 SC 59.
 694

44 Mohd. Yasin v. Town Area Committee, AIR 1952 SC 115 : (1952) SCR 572.

45 Ram v. State of U.P., AIR 1984 SC 1213 : (1983) 4 SCC 276 (paras. 13-14); Collector v. Ebrahim, AIR 1957 SC 688
(691-92) : 1957 SCR 970; Sodhi Transport v. State of U.P., AIR 1986 SC 1099 : (1986) 2 SCC 486 (para. 9).

46 Kodar v. State of Kerala, AIR 1974 SC 2272 : (1974) 4 SCC 422 (para. 10); Ram v. State of U.P., AIR 1984 SC 1213
(paras. 13-14); Collector v. Ebrahim, AIR 1957 SC 688 (691-92) : 1957 SCR 970; Sodhi Transport v. State of U.P., AIR
1986 SC 1099 : AIR 1966 SC 764 (para. 9); Abdul Khader v. State of T.N, AIR 1985 SC 12 : 1984 Supp SCC 563
(para. 11); Shiv Dutt v. Union of India, AIR 1984 SC 1194 : (1983) 3 SCC 529 (para. 33); J.K. Mills v. State of U.P., AIR
1961 SC 1534 (1539) : 1962 SCR 1; Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019 (1045, 1047) :
(1983) 4 SCC 45.

47 Ramjilal v. I.T.O., (1951) SCR 127 (137) : AIR 1951 SC 97.

48 Krishnamurthi v. State of Madras, AIR 1972 SC 2455 (2460); Jawaharmal v. State, (1966) 1 SCR 890 (905) : (1986)
2 SCC 486; Asstt. Commr. of Urban Land Tax v. Buckingham & Carnatic Co., AIR 1970 SC 169 : (1969) 2 SCC 55;
Ramakrishna v. State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897.; Epari v. State of Orissa, AIR 1964 SC 1581 :
(1964) 7 SCR 185.

49 Ujagar Prints v. UOI, AIR 1989 SC 516 : (1989) 3 SCC 488.

50 Krishnamurthi & Co. v. State of Madras, AIR 1972 SC 2455 : (1973) 1 SCC 75. See alsoRai Ramakrishnan v. State
of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897 - a law which gave retrospectivity for more than ten years was held
valid. See alsoJawaharmal v. State of Rajasthan, AIR 1966 SC 764 : (1966) 1 SCR 890.

51 Balaji v. ITO, AIR 1963 SC 123 : (1962) 2 SCR 983 - followed in Umedray v. ITC, AIR 1965 Punjab 114; S.
Srinivasan v. ITC, Madras, AIR 1967 SC 517 : (1967) 1 SCR 727; see alsoNavnit Lal v. ITAAC, AIR 1965 SC 1375 :
(1965) 1 SCR 909; Kannan v. Kerala, AIR 1966 Ker 143.

52 Mineral Development Co. v. State of Bihar, AIR 1960 SC 468 (472) : (1960) 2 SCR 609; Shivji Nathubhai v. Union of
India, AIR 1960 SC 606 : (1960) 2 SCR 775. See alsoJagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563 :
(1963) 1 SCR 220. Kantilal Babulal & Bros. v. H. C. Patel, AIR 1968 SC 445 : (1968) 1 SCR 735.

53 Sadasib v. State of Orissa, (1956) SCR 43 (55) : AIR 1956 SC 432.

54 State of U.P. v. Basti Sugar Mills, AIR 1961 SC 420 (426) : (1961) 2 SCR 330; Harishankar v. State of M.P. AIR
1954 SC 465 : (1955) 1 SCR 380.

55 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

56 Akhil Bharatiya Sahakari Lottery Vyapari Mahasangh v. Commissioner of Police, New Delhi, 1999 CrlLJ 3600(Del) ;
Ivory Traders and Manufacturers Assn. v. UOI, AIR 1997 Del 267 : 1997 AIHC 3988(Del) ; Sat Pal & Co. v. Lt. Governor
of Delhi, AIR 1979 SC 1550 : (1979) 4 SCC 232; State of Bombay v. R.M.D. Chamarbaughwala, AIR 1957 SC 699 :
(1957) SCR 874; M/s. Jagadeb & Sons, Bangalore v. State of Karnataka, AIR 1990 Kant 251.

57 Burrabazar Fire Works Dealers' Assn. v. Commissioner of Police, Calcutta, AIR 1998 Cal 121.

58 Virendra v. State of Punjab, AIR 1957 SC 896 : (1958) SCR 308; State of Bihar v. K.K. Misra, AIR 1971 SC 1667 :
(1970) 3 SCR 181: (1969) 3 SCC 337.

59 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

60 Bijay Cotton Mills v. State of Ajmer, (1955) 1 SCR, 752 : AIR 1955 SC 33.

61 Bashiruddin v. State of Bihar, AIR 1957 SC 645 (648) : 1957 SCR 1032.

62 Chaturbhai v. Union of India. (1960) 2 SCR 362 : AIR 1960 SC 424.

63 Chaturbhai v. Union of India. (1960) 2 SCR 362 : AIR 1960 SC 424.

64 Bashiruddin v. State of Bihar, AIR 1957 SC 645 (648).

65 Fedco v. Bilgrami, AIR 1960 SC 415 : (1960) 2 SCR 408.

66 Hari Chand Sarda v. Mizo District Council, AIR 1967 SC 829 : (1967) 1 SCR 1012. See alsoCollector of Customs v.
Nathella Sampathu Chetty, AIR 1962 SC 316 : (1962) 3 SCR 786; Harackchand Ratanchand Banthia v. Union of India,
AIR 1970 SC 1453 : (1969) 2 SCC 166.

67 AIR 1970 SC 1453 : (1969) 2 SCC 166.

 695

68 AIR 1962 SC 204 : (1962) 3 SCR 108.

69 Corporation of Calcutta v. Tramways Co. Ltd., AIR 1964 SC 1279 : (1964) 5 SCR 25.

70 Mahabir Prasad v. State of UP, AIR 1970 SC 1302 : (1970) 1 SCC 764.

71 Ganapathy v. State of Ajmer, AIR 1955 SC 188 : (1955) 1 SCR 1065; Kishan Chand Arora v. Commr. of Police, AIR
1961 SC 415 : (1960) 2 SCR 408.

72 Harishankar Bagla v. State of M.P., AIR 1954 SC 465 : (1955) 1 SCR 380.

73 Consumer Action Group v. State of Tamil Nadu, (2000) 7 SCC 425.

74 State of U.P. v. Basti Sugar Mills, AIR 1961 SC 420 (426) : (1961) 2 SCR 330; Harishankar Bagla v. State of M.P.
AIR 1954 SC 465 : (1955) 1 SCR 380.

75 Ajit Singh v. State of Punjab, AIR 1967 SC 856 : (1967) 2 SCR 143; Meenakshi Mills v. Union of India, AIR 1974 SC
366 : (1974) 1 SCC 468.

76 Hathisingh Mfg. Co. v. Union of India, (1960) 3 SCR 528 (543) : AIR 1960 SC 923.

77 Express Newspapers v. Union of India, AIR 1958 SC 578 (601) : 1959 SCR 12.

78 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248.

79 AIR 1986 SC 1205 : (1986) 3 SCC 20.

80 Liberty Mills v. Union of India, AIR 1984 SC 1271 : (1984) 3 SCC 465 (paras. 15, 21, 22).

81 O.N.G.C. v. Assocn., (1990) Supp. SCC 397 : AIR 1990 SC 1851 (para. 40); Union of India v. Cynamide, (1987) 2
SCC 720.

82 E.g., Sections 2 of the (20) of the Motor Vehicles Act , 1939 uses the word 'permit' where the object is simply to
regulate the business of transport by laying down the conditions subject to which the business may be carried on (cf.
Nageswara v. A.PS.R.T.C., AIR 1959 SC 308 (317) : 1959 Supp (1) SCR 319.

83 Cf. C.S.S. Motor Service v. State of Madras, AIR 1953 Mad 279.

84 Sajjan Bank v. Reserve Bank of India, AIR 1961 Mad 8.

85 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SC 220.

86 Dwarkaprasad v. State of U.P., (1954) SCR, 803 : AIR 1954 SC 224; Harishankar v. State of M.P., (1955) 1 SCR 380
: AIR 1954 SC 465.

87 Ganapati v. State of Ajmer, (1955) 1. SCR 1065 : AIR 1955 SC 188; Narayanan Sankaran Mooss v. State of Kerala,
(1973) II SCWR. 609 (621) : AIR 1974 SC 175.

88 Cf. Ramchand v. Union of India, AIR 1963 SC 563 (566) : (1962) 3 SCR 540.

89 Dwarkaprasad v. State of U.P., (1954) SCR 803 : AIR 1954 SC 224 (supra).

90 See alsoHari Chand Sarda v. Mizoram Dt. Council, AIR 1967 SC 829 : (1967) 1 SCR 1012; H.R. Banthia v. UOI,
AIR 1970 SC 1453 : (1969) 2 SCC 166; Chandrakant v. Jasjit Singh, AIR 1962 SC 204 : (1962) 3 SCR 108.

91 Fedco v. Bilgrami, AIR 1960 SC 415 : (1960) 2 SCR 408 (supra); see alsoMineral Development Ltd. v. State of
Bihar, AIR 1960 SC 468 : (1960) 2 SCR 609 (supra).

92 Veerappa Pillai v. Raman, (1952) SCR 583 : AIR 1952 SC 192.

93 Veerappa Pillai v. Raman, (1952) SCR 583 : AIR 1952 SC 192.

94 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SC 220.

95 Saghir Ahmed v. State of U.P., (1955) 1 SCR 707 (719) : AIR 1954 SC 728; Raman & Raman v. State of Madras,
AIR 1959 SC 694 (697) : 1959 Supp (2) SCR 227.

96 Municipal Corpn. v. Jan Mohd., (1986) 3 SCC 20 : AIR 1986 SC 1205 (para. 15) (CB).
 696

97 Ibrahim v. S.T.A.T., AIR 1970 SC 1542 : (1970) 2 SCC 233; Cooverjee B. Bharucha v. Excise Commissioner, AIR
1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

98 Harishankar v. State of M.P., (1955) 1 SCR 380 : AIR 1954 SC 465.

99 Chintamanrao v. State of M.P., (1950) SCR 759 : AIR 1951 SC 118.

100 M.B. Cotton Association v. Union of India, AIR 1954 SC 634 : 1954 Cr LJ 1704.

101 Municipal Corpn. v. Jan Mohd., (1986) 3 SCC 20 : AIR 1986 SC 1205 (para. 15) (CB).

102 Municipal Corpn. v. Jan Mohd., (1986) 3 SCC 20 : AIR 1986 SC 1205 (para. 15) (CB).

103 Municipal Corpn. v. Jan Mohd., (1986) 3 SCC 20 : AIR 1986 SC 1205 (para. 15) (CB).

104 Suman Gupta v. State of J & K., AIR 1983 SC 1235 : (1983) 4 SCC 339.

105 AIR 1995 SC 2200 : (1995) 1 SCC 501.

But a discretion is not unregulated or be unreasonable or arbitrary if the circumstances in, or the
grounds on, which it can be exercised are stated or if the law lays down the policy to achieve which
the discretion is to be exercised or if there are enough procedural safeguards in the law to provide
security against the misuse of the discretion.1
In Bijoy Cotton Mills v. State of Ajmer ,2 the validity of the Minimum Wages Act , 1948 was challenged
inter aliaon the ground that the procedure to fix the minimum wages was arbitrary as the whole matter
of fixation was left to the Government's unfettered discretion. Supreme Court held that the Act is a
valid piece of legislation. Court said that though the powers given to the Government were very large,
yet the statute provided several safeguards, namely, an Advisory Committee could be appointed, the
persons affected could make representation, consultation with advisory bodies was obligatory for
revision of minimum wages; there was a Central Advisory Board to advise the Central and State
Governments in the matter of both fixation and revision of minimum wages and to act as a
coordinating agency for different advisory bodies. Each committee or advisory body was to consist of
an equal number of representatives of employers and employees with a few independent persons who
could take a fair and impartial view of the matter. The court opined that these provisions constituted
adequate safeguards against any hasty or capricious decision by Government 3
In Barium Chemicals Ltd. v. Company Law Board ,4 the Supreme Court ruled that Sections 237(b) of
Companies Act , 1956 (Now repealed by Act 18 of 2013) is not violative of Art s. 14 and 19(1)(g) which
authorises the Central Government to order an investigation into the affairs of a company. The Court
said that though an investigation causes an inconvenience to the company in carrying on its business,
but places no restriction thereon as it is only an exploratory character. The power to order an inquiry
can only be exercised on an opinion formed on the "Objective test of the existence of circumstances"
suggesting things set out in clause (b) of s. 237.
A Tamil Nadu Act provided that no educational institution could be run without Government
permission. The relevant provision merely said that Government "may grant or refuse to grant
permission". The only safeguard was that permission will not be refused unless the applicant is given
an opportunity for making his representation. In A.N. Parasuraman v. State of Tamilnadu ,5 the
Supreme Court held the provision invalid as the Government was left with "unrestricted and unguided
discretion" which rendered the provision "unfair and discriminatory" vis--visArt. 19(1)(g). No condition
has been laid down which an institution must fulfil before applying for permission nor any test
indicated for refusing permission. The Act was completely silent about the criteria to be adopted by the
Government for granting or refusing permission. Another factor which the court took serious objection
was the provision which conferred an unrestricted and unregulated power in the State Government to
appoint any person, officer or other authority as competent authority to exercise powers under the Act.
 697

The function of cancelling a licence is quasi-judicial and principles of natural justice will apply before
cancelling the licence. But a licence could be suspended without giving a hearing to the licensee as it
is a preliminary stage of cancellation.6
In Seshadri v. Dt. Magistrate ,7 a rule requiring a cinema owner to show at each performance
approved film of such length and for such length of time as the Government might direct was held
unreasonable as the length of film and the period of time have not been specified, the Government
was vested with an unregulated discretion to compel an exhibitor to show a film of any length and
there is no principle to guide its discretion and this might lead to total loss to his business.
In Pooran Mal v. Director of Inspection ,8 the Court held that s. 132 of Income Tax Act, 1961 as valid,
for, it provided for drastic steps to be taken to prevent evasion of tax. The Court said that if the
procedure is similar to the provision as provided in CrPC for search and seizure, the same will be
valid. Court said that since s. 132 of Income Tax Act,1961 has several in-built safeguards, it is valid.
In Kishan Chand Arora v. Commissioner of Police, Calcutta ,9 the question was the power of
Commissioner to grant licences in his discretion to the keepers of eating houses and places of public
resort and entertainment. The Commissioner could, with the permission of the State Government,
insert in any such licences a condition for securing good behaviour of the keepers and prevention of
drunkenness and disorder among the persons using such places. It was held that the discretion of
power is not unguided or arbitrary. The purpose for which conditions could be imposed as mentioned
in the Statute is guided by the policy of the Government. Even lack of procedural safeguards, i.e., the
applicant has no right to be heard nor there is any provision for appeal nor was there any provision for
communicating the reason.
Entrustment of power on high ranking officials is considered as one circumstance that power will not
be misused. High ranking officials are expected to discharge their duties in a responsible manner. 10
To the foregoing general rule, there are certain exceptions where the Court would not hold the vesting
of absolute discretion in the administrative authority as unreasonable in view of the extraordinary
circumstances. In general, these are the cases where the Legislature would be justified in totally
prohibiting the trade or business:

82a)  In the case of a trade or business which is inherently dangerous to the

community and which the State is entitled either to prohibit entirely, or to permit only
under such conditions as will limit to the utmost its evils. 11
85b)  In the case of commodities essential to the life of the community.12
As will he seen presently, the Supreme Court has upheld even permanent measures, not conditioned
by any state of emergency, as regards essential commodities:

59i)  In exercise of the power conferred by s. 3(2) of the Essential Supplies Act,
1946, the State of U.P. made the U.P. Coal Control Order, 1953, the relevant provisions
of which were--

"3(1) No person shall stock, sell, store for sale... coal ... except under licence ...granted under this Order...

4(3) The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence ... for reasons to be
recorded ...".

Dwarka Prasad's case

The Supreme Court struck down Cl. 4(3) of the Order on the ground that it vested uncontrolled
discretion in the Controller in the matter of granting or withholding licences. There was no standard to
guide the exercise of the discretionary power or any check upon an improper exercise of the same. Of
course, the Order required him to state the reasons for the exercise of his discretionary power but
 698

there was no provision for any revising authority to examine the propriety of the reasons stated by the
Controller. In the absence of any revising authority, the requirement to state reasons did not place any
effective cheek upon the unfettered discretion. The reasons which were required to be recorded were
thus only for the subjective satisfaction of the licensing authority and not for furnishing any remedy to
the aggrieved person against arbitrary or discriminatory action on the part of the licensing authority. 13
The Court observed--
"A law or order, which confers arbitrary and uncontrolled power upon the executive in the matter of
regulating trade or business in normally available commodities cannot but be held to be
unreasonable".14
In the case of Dwarkaprasad,15 by using the words 'normally available commodities', the Court was
apparently reserving the power of the taking drastic steps in emergencies. As a matter of fact, in
annulling the Uttar Pradesh Coal Control Order, 1953, the Court was applying the doctrine enunciated
in the case of Chintamanrao v. Madhya Pradesh 16 that a restriction which is in excess of what is
required in the public interest was unreasonable. The law is settled that exercise of statutory power or
discretion by administrative authority affecting fundamental rights should be in consonance with the
doctrine of proportionality.17 The Court will have to consider whether the restriction imposed is
disproportionate to the situation.18 Hence, when a commodity was normally available, to make it
subject to the arbitrary control by an executive officer was an unreasonable restriction.
Harishankar's case

54ii)  lt is interesting to note that in the later case of Harishankar v. Stateof M.P .19
the Court upheld the validity of the Cotton Textiles (Control of Movement) Order, 1948,
on the ground of 'emergency'.
Section 3 of the Cotton Textiles (Control of Movement) Order, 1948, issued in exercise of the power
conferred by the Essential Supplies (Temporary Powers) Act, 1946, provided--
"3. No person shall transport or cause to be transported by rail, road, air sea or inland navigation any
cloth, yarn or apparel except under and in accordance with--
(i) a general permit notified in the Gazette of India by the Textile Commissioner, or
(ii) a special transport permit Issued by the Textile Commissioner."
In this Order, there was no provision corresponding to s. 4(3) of the U. P. Coal Control Order (see
above). In fact, there was no provision at all as to how the permits were to be issued by the Textile
Commissioner. Nevertheless, the Court held20 that the discretion conferred by the Order upon the
Commissioner was not an absolute discretion but a discretion to be exercised in conformity with the
policy apparent on the face of the Order that the transport of cotton textile was to be regulated in such
a manner that it would ensure an even distribution of the commodity in the country. One wonders
whether the same policy was not apparent in the U.P. Coal Order, which was issued in exercise of
powers conferred by the same statute. Secondly, in this case 21it was observed that the Essential
Supplies Act, 1946 was a temporary measure and enacted at a time of emergency. Both these
considerations were applicable to the U. P. Order under review in Dwarka Prasad's case.22 The
Supreme Court said that unlike Dwaraka Prasad's case, in Harishankar's case, there was sufficient
guidance for the exercise of power in the general policy of the order which was to regulate
transporters of cotton textiles in such a manner as to ensure even distribution in the country and make
it available to all at a fair price. Dwaraka Prasad's case was held as having no bearing to be compared
with Harishankar's case as there was no analogy between the two. Perhaps what the court meant by
this was that a licence to trade stood on a different footing from permits to regulate transportation on
movement of goods. Whereas in the former case, a person could not carry on a trade at all without a
licence, in the latter case, a restriction was imposed only on one aspect of the total trade, leaving the
rest free.23
M.B. Cotton Association's case
 699

(iii) Another temporary and emergency provision for permit relating to essential commodities is to be
found in the case of the M. B. Cotton Association.24 The impguned provision was Cl. 4 of the25 Cotton
Control Order, 1950, made under the Essential Supplies Act, 1946, which banned all cotton contracts
and options, in cotton except those permitted by the Textile Commissioner. The Court upheld the
reasonableness of the restriction imposed by the Order in these words--
"Cotton being a commodity essential to the life of the community, it is reasonable to have restrictions
which may, in certain circumstances, extend to total prohibition for a time, of all normal trading in the
Commodity".26
M.B. Cotton Association challenged the order of Textile Commissioner who refused permission to the
Association, while granting a permit to East India Cotton Association. Court refused to interfere with
the order of Textile Commissioner on the ground that East India Assn. was an old and well organised
body, whereas M.B. Cotton Assn. was a new body and the two Associations are not on equal footing.
Narendra's case
(iv) When we come to the later case of Narendra v. Union of India ,27 we find the 'emergency' concept
abandoned altogether, and reliance being placed, simply on the ground of a commodity being
'essential and its supply being inadequate. In this case, 28 the Court upheld the validity of the Non-
Ferrous Metal Control Order, 1958, made under the ' Essential Commodities Act , enacted by our
Parliament in 1955, irrespective of any consideration of 'emergency'. Of course, the Order required the
Central Government to lay down certain principles for guidance of the Controller in the matter of
granting permits. But that did not minimise the problem before the Court inasmuch as the effect of
applying the principles, it established, was to eliminate middlemen altogether from the business. The
requirement of laying down of principles did not make much difference from Harishankar's case29
because in that case, it was held that it was enough if the legislative policy was apparent.
It is striking that no reference in the judgment in Narendra's case30 was made to the decision in
Dwarka Prasad31 even though Dwarka Prasad32 would have been decided otherwise had the principle
formulated in Narendra's case33been applied, for, the Coal Control Order was also promulgated under
the Essential, Supplies Act, and there was no reason why. the Court should have retarded 'coal' as
nonessential'.
Another point to be noted is that, while in all the earlier cases, the provisions were temporary, having
been promulgated under the Essential Supplies Act, 1946, which was a temporary enactment, in
Narendra's case34 the impunged Order was made under the Essential Commodities Act , 1955.
(v) While granting a permit, it is legitimate for the State to lay down model conditions which would
guide the discretion of the subordinate authority in granting the permit. 35 It cannot be struck down as
unreasonable merely be cause the discretion still left to that authority is wide 36 or imposes an
additional burden for obtaining a permit, which is necessary to protect interests of the general public. 37
Under Sections 51(2)(8) of the Motor Vehicles Act , 1939 [Now repealed by the Motor Vehicles Act ,
1988 (59 of 1988)] the RTA could attach to the permit any condition which "may be prescribed". The
court held that this provision did not give any unlimited discretion to impose any condition the authority
liked. Only such condition could be imposed as had a nexus with the statutory purpose of the Act. The
Authority imposed a condition that the bus should not be more than seven years old at any time during
the validity of permit. Court upheld the condition saying the human safety was a statutory purpose and
the condition imposed was in the interest of human safety. The older the model of the bus, the less the
chance of latest safety measures being built into it. Every new model incorporates new devices to
reduce danger and promote comfort.38
In Hari Chand Sadra v. Mizo District Council ,39 the Court was considering the scope of the provision
under Lushai Hills District (Trading by Non-Tribal) Regulation, 1963 which provides for prohibition
against anyone carrying on trade without a licence. It was held that if a non-tribal wishes to carry on
any trade or business in the State, but is refused a licence, such refusal would result in total
prohibition against him from carrying on any trade. Even if the licence is issued, it is only for a
temporary period of one year and the executive committee can refuse to renew the licence which
means the trader has to stop his business. The provision did not provide any safeguard against
 700

arbitrary exercise of power in refusing the licence or renewal of licence which means the discretion is
unguided and untrammelled. Such power on the licensing authority was held unreasonable and
violative of Art. 19(1)(g).
In another case, the Supreme Court again struck down a licensing provision because it conferred an
unguided power on the executive. The Gold (Control) Act, 1968 provides for licensing of dealers in
gold and gold ornaments. The authority created under the Act was empowered to grant or renew
licence having regard to such matters, inter alia, as the number of dealers existing in a region,
anticipated demand, suitability of applicant and public interest. The Supreme Court held that all these
factors were vague, uncertain and unintelligible. The word "region" was nowhere defined in the Act .
The expression "anticipated demand" was a vague one. Similarly, the expression "suitability of the
applicant and public interest" did not provide any objective standard or norm. 40
(II) The licensing power
It is universally acknowledged that the state has, in the exercise of its 'police power', the right to
regulate the citizen's right to carry on any trade or profession to licensing, that is, to lay down
reasonable conditions subjects to which the trade or professions may be carried on. With the growing
complexity of social life, licensing is being used as a great preventive device for the protection of the
life, health, and safety of citizens in situations where the judicial sanction which is penal or remedial is
inadequate or ineffective. Thus, "to punish an aeroplane pilot for incompetence after he has caused an
accident is far less sufficient than to deny him the right to be pilot in the first place unless he meets
certain qualifications."41
U.S.A.
(A) U.S.A.--It is the nature of the business which justifies the regulation as well as the aspects which
call for regulation. As to the licensing of the sale of intoxicating liquor, the Supreme Court observed--
"The statistics of every state show a greater amount of crime and misery attributable to the use of
ardent spirits obtained at these retail liquor saloons than to any other sources. The sale ofliquors in
this way has therefore been, at all times, by the Court of every state, considered as the proper
subjects of legislative regulation. Not only may a licensing fee be exacted from the keeper of saloon
before a glass of his liquor may be thus disposed of, but restriction may be imposed as to the class of
persons to whom they may be sold, and the hours of the day, and the days of the week, on which the
saloons may be opened.... The manner and extent of regulation rest in the discretion of the governing
authority......"42.
The state is competent to regulate the right to carry on a business or profession in the interests of the
general public, which includes protection of public safety, 43 prevention of fraud,44 promotion of public
health,45 or morals,46 suppression of trade practices which are injurious to public interest, 47 and the like.
In Nebbia v. New York ,48 the court upheld the validity of a depression-era law regarding the price of
milk. The New York law was sought to prevent ruinous price cutting by establishing a milk control
board with power to fix minimum and maximum retail prices. It was contended that the enforcement of
milk price regulation denied him due process of law by preventing him from selling his product at
whatever price he desired. While rejecting the claim, the court said: "So far as the requirement of due
process is concerned and in the absence of any other constitutional limitation, a State is free to adopt
whatever economic policy may reasonably be deemed to promote "Public Welfare" and in the
enforcement of that policy by legislation, adopted to its purpose. The courts are without authority
either to declare such policy or when it is declared by the Legislature to override it". In Day-Brite
Lighting v. Missouri 49 also, the ruling provides a clear example where the Court treats legislation
seeking to implement public welfare. In reviewing a State law that provided that employees could
absent themselves from their jobs for four hours on election days and forbade the employers from
deducting wages for their absence, the court admitted that social policy embodied in the law was
debatable, but pointed out that our recent decisions made plain that we do not sit as a super
Legislature to weigh the wisdom of legislation not to decide whether the policy it expresses offends the
public welfare.50
 701

West Coast Hotels v. Parrison 51 is a case relating to payment of minimum wages to women. In that
the State had enacted a minimum wage law covering women and minors. The law provided for the
establishment of Individual Welfare Commission, which was authorised to establish such standards of
wages and conditions of labour for women and minors employed within the State of Washington as
shall be held hereunder as reasonable and not detrimental to health and morals and which shall be
sufficient for the decent maintenance of women. It was contended that legislation violates the right to
freedom of contract. The Court said: "The violation alleged by those attacking minimum wages
regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution
does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty
without due process of law. In prohibiting that deprivation, the Constitution does not recognise an
absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But
the liberty safeguarded is liberty in a social organisation which requires the protection of law against
the evils which menace the health, safety, morals and welfare of the people. Liberty under the
Constitution is thus necessarily subject to the restraints of due process and regulation which is
reasonable in relation to its subject and is adopted in the interest of the community is due process".
Court said: "The explanation of a class of workers who are in an unequal position with respect to
bargaining power and this relatively defenceless against the denial of a living wage is not only
detrimental to their health and well being, but cast a direct burden for their support upon the
community. What these workers lose in wages, the taxpayers are called upon to pay. The bare cost of
living must be met. The community is not bound to provide what is in effect a subsidy for
unconscionable employers. The community may direct its law-making power to correct the abuse
which springs from their selfish disregard of public interest". In that case, court overruled an earlier
decision, which took a contrary decision in Adkins v. Children's Hospital .52 In Muller v. Oregon 53 and
Bunting v. Oregon ,54 court upheld the constitutionality of State legislation that respectively, limited the
workday for women to ten hours and extended the same by maximum hours limited to all mill and
factory workers. It was held that such legislation was in exercise of State's police powers.
A common and effective method of regulating a business or profession for such purposes is to require
a person who wants to carry on the trade, to obtain a licence from the state as a conditions precedent
to his entering into that trade or profession and the regulatory statute lays down the conditions under
which the licence may be obtained and the business carried on under the licence. The licensee may
be required to furnish a bond as a security for due compliance with the terms of the licence. 55
As instances of business which have been subjected to licensing may be mentioned--

60i)  Professions such as those of doctors; 56 dentists;57 pedlers;58 pilots.59

55ii)  Business such as, operating private employment agencies; 60 sale of
securities61 or liquor62 or of cigarettes63 or soft drinks;64 operating public carriers on high
ways65; radio broadcasting.66
Needless to say, licensing being an exercise of the 'police power' with respect to the 'liberty' and
'property' of an individual, is subject to due process. 67
But, as Parker68 has pointed out, the Court has taken a more strict view of 'due process' with respect to
the revocation or cancellation of an existing licensing than with the respect to the granting or refusal of
a licence.

61i)  Grant or refusal.--Since it is not possible for the Legislature to state all the
conditions or considerations according to which a licence may be granted or refusal in
particular cases, some discretion must necessarily be vested in the licensing authority in
this matter.69 Thus, where the business reputation of the applicant is a relevant
consideration, it must be left to the discretion of an administrative authority to assess it in
particular cases, as it is not a matter capable of a legislative definition. 70
'Due process' would be satisfied if the law provides adequate standards for the exercise of the
discretionary power instead of conferring a 'naked' or arbitrary power to give or withhold a licensce 71
and also provides for adequate judicial review to examine the basis of challenged refusal of licence
 702

and the factual support of refusal on that basis.72 In short, the granting of an initial licence is regarded
as an administrative rather than quasi-judicial function and the view is taken that there is no vested
right of property unless the licence is granted. Hence, no hearing is required for the granting or refusal
of a licence unless the statute requires it,73 and the Courts can interfere only where the refusal is
discriminatory or arbitrary.74

56ii)  Revocation or cancellation.--Somewhat different considerations come into

play in the case of revocation or cancellation of, or refusal to renew, 75 an existing licence
which amounts to taking of vested 'property' rights, and thus comes directly under the
constitutional requirement of 'due process' with regard to the taking of property. (a)
Where, of course, a licence has been obtained by means of fraud, the licence can be set
aside without any elaborate proceeding on the ground that it was a nullity, just as a
fraudulently obtained judicial decision is.76(b) Where, however, a licence which has
created a vested property right is sought to be revoked on the ground of some
subsequent conduct of the licensee, it can be taken away only in conformity with due
process which involves--adequate notice, fair hearing and judicial review.77
The constitutional requirement on the basis of a vested right has been postulated where a person has
been admitted to a profession in one area and seeks a licence to practise in another area. 78
But here again, a distinction is made between lawful business and business which is inherently
dangerous and which can be carried on only under licence of the State. In the latter case, a licence
granted by the state is regarded not as a property but as a privilege 79 which can, accordingly, be
withdrawn by the state in exercise of its police power, at any time and without any notice or hearing,
e.g., a licence to sell intoxicating liquor. But in the case of all ordinary and lawful avocations and
business, a person has a property right to continue it, e.g., the business of manufacture and sale of a
printing press;80 conducting of a restaurant;81 acting as a bondsman82 or legal practitioner.83 Hence,
before a licence to carry on any such business is revoked, 84 the person effected should have "notice of
the grounds of complaint against him and ample opportunity of explanation and defence." 85 The law
authorising revocation of such licence must, accordingly, provide for hearing and, if it is silent, the
Court will imply such a requirement.86
India
(B) India.--Our Parliament has similarly, undertaken legislation providing for the licensing of 'prize
competitions', for the prevention of fraud [Prize competitions Act, 1955]; of dealers in stock
exchanges, in order to prevent undesirable speculation [ Securities Contracts (Regulation) Act ,
1956]; of imports [Imports (control) Order, 1955]87 or exports,88 in order to ensure a supply of proper
prices to consumers.89 In 1992, the Parliament enacted the Securities and Exchange Board of India
Act 1992 which is an Act to provide for the establishment of a Board to protect the interests of
investors in Securities and to promote the development of and to regulate the securities market and to
matters connected therewith and incidental thereto. Certain provision of Securities Contract
Regulation Act was also amended by the new legislation.
I. Under our constitution, it is obvious that the licensing power, being a restriction of the freedom of
trade, etc., must be reasonably exercised. It is now clearly settled that a system of licensing of a trade
is not unreasonable provided that licensing officers are not left with uncontrolled power to grant,
revoke or cancel a licence. There should be reasonable norms, policy or principle to guide
administrative power as well as some procedural safeguards. In Municipal Corpn., Ahmedabad v. Jan
Mohamed ,90 court said: "Where, however, power is entrusted to an administrative agency to grant or
withhold a permit or licence in its uncontrolled discretion, the law ex facie infringes the fundamental
right under Art. 19(1)(g)".
Grant or refusal
(a) If follows, therefore, that the licensing power conferred by a statute must not be exercisable subject
to standards laid down by the Legislature.91
In Dwarka Prasad v. State of Uttar Pradesh,92 the Supreme Court observed--
 703

"The power of granting or withholding licences or fixing prices of goods would necessarily have to be
vested in certain public officers or bodies and they would certainly have to be left with some amount of
discretion in these matters. So far no exception can be taken; but the mischief arises when the power
conferred on such officers is an arbitrary power unregulated by any rule or principle and it is left
entirely to the discretion of particular persons to do anything they like without any check or control by
any higher authority. A law or order, which confers arbitrary and un-controlled power upon the
executive in the matter of regulating trade or business in normally available commodities93 cannot but
be held to be unreasonable......".94
In the later case of Pannalal v. Union of India ,95 the Supreme Court has explained that a right to carry
on a trade or profession being a fundamental right guaranteed by Art. 19(1), it could not be taken
away by the Legislature as a right created by statute could be; it can only be subjected to 'reasonable
restrictions':
"Where, for example, a discretion is given in the matter or issuing licences........the discretion must be
controlled by clear rules so as to come within the category of reasonable restrictions." 96
In that case, the court also said that when power is conferred on high officials and top ranking
authorities, abuse of power cannot be assumed.
If the statute does not lay down the principles for the guidance of the licensing authority in the matter
of granting or refusing licence, it would constitute an unreasonable restriction upon the freedom of
business.97 For the said purpose, legislative policy has to be ascertained by the court from the
provisions of the Act, including Preamble and where the impugned act replaces another Act, the Court
may even look into the provisions of that Act in order to determine whether the Legislature has
conferred unguided power to the executive.98 Under our Constitution, the granting of a licence with
respect to a trade which is not inherently dangerous99 cannot be regarded as a mere privilege. A
citizen has the right to carry on such trade subject to such restrictions as may be imposed by the
State, provided they are reasonable, and a law which empowers an administrative authority to refuse
a licence, at his discretion, even though the applicant has complied with the conditions specified in the
statute, must be regarded as unreasonable.100
If the licensing authority refuses an application for licence in compliance with executive instructions
which have no legal sanction or are inconsistent with the law laying down the conditions for granting
licences, the order refusing the licence, being ultra vires, would itself be struck down as being violative
of Art. 19(1)(g).101 In that case which arose under the Assam Foodgrains (Licensing and Control)
Order, 1960 the Court laid down five considerations which a licensing authority was to keep in view in
granting or refusing licence under the Act. One of the considerations was that a co-operative society
was to be preferred to anyone else in certain circumstances. The Government, however, directed the
licensing authorities to grant licence "only" to specified co-operative society and to no other person.
Under the licensing order, the licensing authority could "prefer" a co-operative society in granting
licence if it was of the view that it would fulfil the objectives of the statutory provision in question, but to
refuse to issue a licence to anyone else in order to create monopoly in favour of one co-operative
society alone amounted to violation of the order. The Supreme Court deprecated the tendency of the
administration to issue directions not in consonance with law. The Court said: "Such a method will
destroy the very basis of the rule of law and strike at the very root of orderly administrative law".
On the other hand--

62i)  A law which vests uncontrolled discretion in the statutory authority to grant
or refuse a licence in relation to a normal business will be struck down as constituting an
unreasonable restriction upon the fundamental right under Art. 19(1)(g). 102
But law cannot be said to be unreasonable for having conferred discretionary power upon the
licensing authority, if it offers sufficient guidelines for the exercise of the power, 103 and makes it
obligatory for the licensing officer to grant a licence if the statutory conditions are complied with. 104 But
if safeguards are provided against arbitrary exercise of power to grant or cancel licences, such a law
may be upheld.105
 704

Cancellation or revocation

57ii)  If the reasons given by the licensing authority are not ultra vires and are not
irrelevant considerations, the refusal of licence cannot be held to be arbitrary or
unreasonable.106
34iii)  Imposition of a licence fee as a requirement for the grant of a licence does
not constitute an unreasonable restriction of the right to carry on a business. 107
24iv)  When the Government issues an administrative statement of policy relating
to the grant of licences relating to a controlled business, no person can claim a legal
right to obtain a licence on the strength of such administrative policy statement, which
may be changed at any time.108
Notwithstanding such policy statement, Government retains its statutory discretion to take into account
all relevant factors in the matter of granting licences, 109 except where there is anything in such
statement as may be construed as a representation binding upon the Government. 110
(b) Again, a power to cancel or revoke a licence 111without giving the person interested an opportunity of
being heard against the act ion proposed is an 'unreasonable restriction' of the fundamental right
under Art. 19(1)(g). It is now settled that the refusal, cancellation or revocation of a licence to carry on
business must comply with the minimum requirement of natural justice, i.e., opportunity to represent
against proposed action because such order visits the person in question with civil consequences. 112 A
citizen who is conducting after having obtained a licence from local authority cannot be denied the
right of hearing when the authority refused to renew the licence. Refusal to renew the licence without
giving a show-cause notice and an opportunity to be heard is violative of Art. 19(1)(g) and Art. 21. 113
Cancelling a mining lease without notice and without giving notice of adverse material is not valid. 114
1 State of Rajasthan v. Nath Mal, AIR 1954 SC 307; Bijoy Cotton Mills v. State of Ajmer, AIR 1955 SC 33.

2 AIR 1955 SC 33 : (1955) 1 SCR 752.

3 See alsoC.B. Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042 : (1970) 1 SCC 43 - where the Supreme
Court declared the legislation as valid.

4 AIR 1967 SC 295 : 1966 (Supp) SCR 311.

5 AIR 1990 SC 40 : (1989) 4 SCC 683.

6 Sukhwinder Pal Bipin Kumar v. State of Punjab, AIR 1982 SC 65 : (1982) 1 SCC 31.

7 AIR 1954 SC 747 : (1955) 1 SCR 686.

8 AIR 1974 SC 348 : (1974) 1 SCC 345.

9 Kishan Chand Arora v. Commissioner of Police, Calcutta, AIR 1961 SC 705 : (1961) 3 SCR 135.

10 Joseph Kuruvilla Vellukunnel v. RBI, AIR 1962 SC 1371 : 1962 (Supp-3) SCR 632; Matajog Dobey v. H.C. Bhari,
AIR 1956 SC 44 : (1955) 2 SCR 925; Sukhwinder Pal Bipan Kumar v. State of Punjab, AIR 1982 SC 65 : (1982) 1 SCC
31. See alsoPapanasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200 : (1995) 1 SCC 501 (supra); Harak
Chand v. UOI, AIR 1970 SC 1453 : (1969) 2 SCC 166; Chinta Lingam v. Govt. of India, AIR 1971 SC 474 : (1970) 3
SCC 768; K.L. Gupta v. BMC, AIR 1968 SC 303 : (1968) 1 SCR 274; Pannalal Binraj v. UOI, AIR 1957 SC 397 : (1957)
SCR 233.

11 Ibrahim v. S.T.A.T., AIR 1970 SC 1542 : (1970) 2 SCC 233; Cooverjee B. Bharucha v. Excise Commissioner, AIR
1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

12 Harishankar v. State of M.P., (1955) 1 SCR 380 : AIR 1954 SC 465.

13 Dwarkaprasad v. State of U.P ,., (1954) SCR, 803 : AIR 1954 SC 224; Harishankar v. State of M.P., (1955) 1 SCR
380 : AIR 1955 SC 465.

14 Dwarkaprasad v. State of U.P ,., (1954) SCR, 803 : AIR 1954 SC 224; Harishankar v. State of M.P., (1955) 1 SCR
380 : AIR 1955 SC 465.
 705

15 Dwarkaprasad v. State of U.P ,., (1954) SCR, 803 : AIR 1954 SC 224; Harishankar v. State of M.P., (1955) 1 SCR
380 : AIR 1955 SC 465.

16 Chintamanrao v. State of M.P., (1950) SCR 759 : AIR 1950 SC 118.

17 Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130.

18 Om Kumar v Union of India, AIR 2000 SC 3689 : (2001) 2 SCC 386. See alsoManeklal Chhotalal v. M.G. Makwana,
AIR 1967 SC 1373 : (1967) 3 SCR 65; Collector of Customs v. Nathella Sampathu Chetty, AIR 1962 SC 316 : (1962) 3
SCR 786; MRF Ltd. v. Inspector, Kerala Govt., (1998) 8 SCC 227; Superintendent, Central Prison v. Ram Manohar
Lohia, AIR 1960 SC 633 : (1960) 2 SCR 821.

19 Harishankar v. State of M.P., (1955) 1 SCR 380 : AIR 1954 SC 465.

20 Srinivasa Enterprises v. Union of India, AIR 1981 SC 504 : (1980) 4 SCC 507 (para. 16).

21 Harishankar v. State of M.P., (1955) 1 SCR 380 : AIR 1955 SC 465.

22 Dwarkaprasad v. State of U.P ,., (1954) SCR, 803 : AIR 1954 SC 224; Harishankar v. State of M.P., (1955) 1 SCR
380 : AIR 1955 SC 465.

23 M.P. Jain, Principles of Adminstrative Law, 6th Edn. 2007, Vol. I, p. 973.

24 M.B. Cotton Association v. Union of India, AIR 1954 SC 634.

25 Subhas v. State of U.P., AIR 1980 SC 800 : (1980) 2 SCC 324; Bhatia v. State of U.P., AIR 1981 SC 988.

26 M.B. Cotton Association v. Union of India, AIR 1954 SC 634.

27 Narendra v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

28 Narendra v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

29 Harishankar v. State of M.P., (1955) 1 SCR 380 : AIR 1954 SC 465.

30 Narendra v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

31 Dwarkaprasad v. State of U.P ,., (1954) SCR, 803 : AIR 1954 SC 224; Harishankar v. State of M.P., (1955) 1 SCR
380 : AIR 1954 SC 465.

32 Dwarkaprasad v. State of U.P ,., (1954) SCR, 803 : AIR 1954 SC 224; Harishankar v. State of M.P., (1955) 1 SCR
380 : AIR 1954 SC 465.

33 Narendra v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

34 Narendra v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430.

35 Subhas v. State of U.P., AIR 1980 SC 800 : (1980) 2 SCC 324; Bhatia v. State of U.P., AIR 1981 SC 988.

36 Subhas v. State of U.P., AIR 1980 SC 800 : (1980) 2 SCC 324; Bhatia v. State of U.P., AIR 1981 SC 988.

37 Subhas v. State of U.P., AIR 1980 SC 800 : (1980) 2 SCC 324; Bhatia v. State of U.P., AIR 1981 SC 988.

38 Subhas v. State of UP , (supra).

39 Hari Chand Sadra v. Mizo District Council, AIR 1967 SC 829 : (1967) 1 SCR 1012.

40 H. R. Banthia v. UOI, AIR 1970 SC 1453 : (1969) 2 SCC 166.

41 Parker, Administrative Law, 1952, p. 239.

42 Crowley v. Christensen, (1890) 137 US 86.

43 Nashville Co. v. Alabama, (1888) 128 US 96.

44 Carolene Products Co. v. U.S., (1944) 323 US 18.

45 Corn Products v. Eddy, (1919) 249 US 427.

 706

46 Booth v. Illinois, (1902) 184 US 425 (429).

47 West Coast Hotel v. Parrish, (1937) 300 US 379.

48 (1934) 291 US 502.

49 (1952) 342 US 421.

50 See alsoWilliamson v. Lee Optical Company, (1955) 348 US 483.

51 (1937) 300 US 379 (supra).

52 (1923) 261 US 525.

53 (1908) 208 US 412.

54 (1917) 243 US 426.

55 Packard v. Banton, (1924) 264 US 140.

56 Dent v. West Virginia, (1889) 129 US 114.

57 Weston v. Missouri, (1876) 91 US 275.

58 Olsen v. Smith, (1904) 195 US 332.

59 Olsen v. Smith, (1904) 195 US 332.

60 Brazee v. Michigan, (1916) 241 US 340.

61 Hall v. Geiger-Jones Co., (1917) 242 US 539.

62 Gundling v. Chicago, (1900) 177 US 183.

63 Gundling v. Chicago, (1900) 177 US 183.

64 Wagner v. City of Covington, (1919) 251 US 95.

65 Hendrick v. Maryland, (1915) 235 US 610 (622).

66 F.C.C. v. Woko Inc., (1946) 329 US 223.

67 Nebbia v. N.Y. (1934), 291 US 502.

68 Parker, ADMINISTRATIVE LAW, 1951, p. 39.

69 People of N.Y. v. Van De Carr, (1905) 199 US 552.

70 Brazee v. Michigan, (1916) 241 US 340.

71 Yick Wo. v. Hopkins, (1886) 118 US 356.

72 Hall v. Geiger-Jones Co., (1917) 242 US 539.

73 F.C.C. v. Woko Inc., (1946) 329 US 223.

74 F.C.C. v. Woko Inc., (1946) 329 US 223.

75 In re Carter, (1951) 342 US 862 [denying cert.].

76 U.S. v. Seatrain Lines, (1947) 329 US 424.

77 Broadcasting Co. v. F.C.C., (1943) 319 US 239; Ashbacker Co. v. F.C.C., (1945) US 327.

78 Goldsmith v. Board of Tax Appeals, (1925) 270 US 117.

79 Crowley v. Christensen, (1890) 137 US 86.

80 Duplex Printing Press Co. v. Deering, (1921) 254 US 443.

 707

81 Truax v. Corrigan, (1921) 257 US 312.

82 In re Carter, (1949) 338 US 900.

83 Ex parte Robinson, (1873) 86 US 505.

84 Ex parte Robinson, (1873) 86 US 505.

85 Ex parte Robinson, (1873) 86 US 505.

86 Cf. Wong Yang v. McGrath, (1950) 339 US 93.

87 Fedco v. Bilgrami, AIR 1960 SC 415 : (1960) 2 SCR 408.

88 Bhatnagars v. Union of India, (1957) SCR 701 (711) : AIR 1957 SC 478.

89 This aspect, it is submitted, was overlooked by the majority but emphasised by the minority (SINHA C.J. & SUBBA
RAO, J.) in Kishan Chand v. Commr. of Police, AIR 1961 SC 705 (714) : (1961) 3 SCR 135. The view of the minority
has since been affirmed by Hari Chand v. Mizo Dt. Council, AIR 1967 SC 829 : (1967) 1 SCR 1012 (para s. 6-8).

90 AIR 1986 SC 1205 : (1986) 3 SCC 20.

91 Broadcasting Co. v. F.C.C., (1943) 319 US 239; Ashbacker Co. v. F.C.C., (1945) US 327.

92 Dwarka Prasad v. State of Uttar Pradesh, (1954) SCR 803 : AIR 1954 SC 220.

93 Sant Ram, in re, (1960) 3 SCR 499 (506) : AIR 1960 SC 932.

94 Dwarka Prasad v. State of Uttar Pradesh, (1954) SCR 803 : AIR 1954 SC 220.

95 Pannalal v. Union of India, 1957 SCR 233 (262) : AIR 1957 SC 397.

96 Pannalal v. Union of India, 1957 SCR 233 (262) : AIR 1957 SC 397.

97 Pannalal v. Union of India, 1957 SCR 233 (262) : AIR 1957 SC 397.

98 Bhatnagar v. Union of India, (1957) SCR 701.

99 Cf. Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

100 This aspect, it is submitted, was overlooked by the majority but emphasised by the minority (SINHA C.J. & SUBBA
RAO, J.) in Kishan Chand v. Commr. of Police, AIR 1961 SC 705 (714) : (1961) 3 SCR 135. The view of the minority
has since been affirmed by Hari Chand v. Mizo Dt. Council, AIR 1967 SC 829 : (1967) 1 SCR 1012 (para s. 6-8).

101 Mannalal v. State of Assam, AIR 1962 SC 386 (393) : (1962) 3 SCR 936.

102 Faruk Mohammad v. State of M.P, (1969) 1 SCC 833 (857) : AIR 1970 SC 93.

103 Chandra v. Union of India, AIR 1979 SC 314 : (1979) 1 SCC 285.

104 Chandra v. Union of India, AIR 1979 SC 314 : (1979) 1 SCC 285.

105 Ram Rachhapal v. UOI, AIR 1960 Punjab 439; Ganapati v. State of Ajmer, AIR 1955 SC 188 : (1955) 1 SCR 1065;
Corpn. of Calcutta v. Tramways Co. Ltd., AIR 1964 SC 1279 : (1964) 5 SCR 25; Mahabir Prasad Santosh Kumar v.
State of UP, AIR 1970 SC 1302 : (1970) 1 SCC 764; Mohd. Hameed v. Collector. Hydrabad, AIR 1974 AP 119; Fedco v.
Bilgrami, AIR 1960 SC 415 : (1960) 2 SCR 408; Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468 : (1960)
2 SCR 609; UOI v. Annam Ramalingam, AIR 1985 SC 1013 : (1985) 2 SCC 443; Chandrakant Saha v. UOI, AIR 1979
SC 314 : (1979) 1 SCC 285; Manick Chand v. UOI, AIR 1984 SC 1249 : (1984) 3 SCC 65; Vishnu Dayal v. State of UP,
AIR 1974 SC 1489 : (1974) 2 SCC 306; M.G. Beedi Works v. UOI, AIR 1974 SC 1832 : (1974) 4 SCC 43; S.C. Dogra v.
State of HP, AIR 1984 HP 29.

106 Khatki v. Ludi Municipality, AIR 1979 S.C 418: (1979) 1 SCC 248.

107 Ram Bux Chaturbhuj v. State of Rajasthan, AIR 1963 SC 351 : (1961) 12 STC 330.

108 Andhra Industrial Works v. Chief Controller, AIR 1974 SC 1539 : (1974) 2 SCC 248. But seeJ.C.C. Imports &
Exports v. Aminchand, AIR 1966 SC 478 : (1966) 1 SCR 262; Premchand Somchand v. UOI, (1991) 2 SCC 48; Oswal
Woollen Mills Ltd. v. UOI, AIR 1983 SC 969 : (1983) 4 SCC 345.
 708

109 Prabhu Das Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044.

110 Union of India v. Anglo-Afghan Agencies, AIR 1968 SC 718 : (1968) 2 SCR 366.

111 Fedco v. Bilgrami, AIR 1960 SC 415 (418) : (1960) 2 SCR 408; Shivji Nathubhai v. Union of India, AIR 1960 SC
606 : (1960) 2 SCR 775.

112 Raj Restaurant v. Municipal Corporation of Delhi, AIR 1982 SC 1550 : (1982) 3 SCC 338. See alsoR v. Gaming
Board exparte Beniam, (1970) 2 QB 417; Paras Nath Prasad v. State of Bihar, AIR 1986 Patna 30. Also seeNorth
Bihar Agency v. State of Bihar, AIR 1981 SC 1758 : (1981) 3 SCC 131; State of Punjab v. Ajudtha Nath, AIR 1981 SC
1374 : (1981) 3 SCC 251; City Corner v. P.A. to Collector, AIR 1976 SC 143 : (1976) 1 SCC 214; Board of Mining
Examination v. Ramjee, AIR 1977 SC 965 : (1977) 2 SCC 256.

113 Raj Restaurant v. Municipal Corporation of Delhi, AIR 1982 SC 1550 : (1982) 3 SCC 338. See alsoR v. Gaming
Board exparte Beniam, (1970) 2 QB 417; Paras Nath Prasad v. State of Bihar, AIR 1986 Patna 30. Also seeNorth
Bihar Agency v. State of Bihar, AIR 1981 SC 1758 : (1981) 3 SCC 131; State of Punjab v. Ajudtha Nath, AIR 1981 SC
1374 : (1981) 3 SCC 251; City Corner v. P.A. to Collector, AIR 1976 SC 143 : (1976) 1 SCC 214; Board of Mining
Examination v. Ramjee, AIR 1977 SC 965 : (1977) 2 SCC 256.

114 Sahi Ram v. Avtar Singh, AIR 1999 SC 2169 : (1999) 4 SCC 511.

It was held that the authorities under Motor Vehicles Act while granting or refusing to grant permit
should act judicially and conform to the principles of natural justice. 1
A grant of licence for acquisition and possession of firearms under the Arms Act , 1959 has been held
to be nothing more than a privilege. But the same cannot be said of cancellation or refusal to renew
such a licence. Such an action entails civil consequences to the licensee and therefore he has a right
to be heard when such an act ion is contemplated.2
But a provision for suspension of licence without giving an opportunity for hearing during the pendency
or in contemplation of proceedings for cancellation of licence in matters dealing with essential
commodities does not suffer from the vice of arbitrariness. 3 But a power to suspend the certificate of
registration under Sections 33(1) of the Motor Vehicles Act , 1939 (Now repealed by the Motor
Vehicles Act , 1988 (59 of 1988)) was held a quasi-judicial in nature and hence natural justice has to
be followed.4
But the restriction would not be unreasonable if the licensing authority is required to exercise his
discretion in a quasi-judicial manner, has to give reasons for refusing the licence and there is provision
for an administrative appeal against that decision.5 But the mere obligation to give reasons is
unmeaning unless there is a higher authority prescribed by the law who could examine the propriety of
the reasons given and to revise or review the decision of the subordinate officer. The giving of reasons
would show the reasonableness of the restriction only when the reasons are given with the object of
furnishing a remedy to the aggrieved person,6 and there is a provision for review by a higher authority. 7
Recording of reasons operates as a valid restraint on any possible arbitrary exercise of judicial and
quasi-judicial and even administrative power. Reasons re-assure that discretion has been exercised
by the decision maker on relevant grounds and by disregarding extraneous consideration. It cannot be
doubted that transparency is the sine qua non of restraint on abuse of judicial power. Transparency in
decision making not only makes the judges and decision makers less prone to errors, but also makes
them subject to broader scrutiny.8
The observations of the Privy Council in Nakkuda Ali v. Jayaratne 9 that--

"In truth when he cancels a licence he is not determining a question: he is taking executive act ion to withdraw
a privilege".

are not applicable under our constitution inasmuch as that judgment was under a special Act of
Ceylon where there was no fundamental right to carry on a business as under Art. (19)(g) of our
 709

constitution and no question of the reasonableness of the restriction upon that right could possibly
arise in that case.10
The question is where any exceptions to the requirement to give an opportunity to the persons to be
effected can be engrafted in India upon the licensing process. Such exceptions have been
acknowledged--

83a)  In cases requiring emergency act ion.11

86b)  In cases relating to inherently dangerous trades, where even prohibition
would be a reasonable restriction12e.g., the cancellation of an arms licence.13
56c)  Where such cancellation is for breach of the terms of a contract, without
involving the exercise of any statutory power.14
Even in the absence of such exceptional circumstances, a majority of three in the Supreme Court 15
upheld the reasonableness of a law which provides for the licensing of eating houses, even though it
provided for no opportunity to be given to the applicant before refusing a licence, nor even for
according reasons for such refusal. The Author, however, respectfully protested against this view at
pp. 526 et seq. of Vol. III of the 4th Edn. of this Commentary, which has since received support from
later decisions.16 The trade of money lending was sought to be regulated through a licensing system.
The power given to the licensing officer to forfeit security furnished by the licensee on contravention of
licence terms was held unreasonable as there were many other adequate provisions for ensuring
compliance with the conditions of licence.17
In Kishan Chand's case,18 even though the majority held that in India, the right to carry on the business
of an eating house was a fundamental right and not a 'privilege'; nevertheless, the Court relied upon
the other part of the Nakkuda Ali19 decision, namely, that because the statute did not require a hearing,
it was not a quasi-judicial but an administrative order and no question of natural justice arises in
common law for the doing of an administrative act.
It is now settled that any public authority must act fairly, justly, reasonably and impartially even in the
absence of any statutory requirement of natural justice which means fair play in action. 20 In Maneka
Gandhi v. UOI ,21 the Supreme Court said that natural justice is a great "humanizing principle" intended
to invest law with fairness and secure justice. Even if the power is purely administrative in nature,
natural justice must still apply thereto because of the adverse civil consequences. 22 Procedural
fairness embodying natural justice is to be implied whenever act ion is taken affecting the rights of
parties.23 The principles of natural justice are essential to the framework of our laws and a protection
against arbitrary action.24 Even if the legislation or rule does not provide or is silent on the applicability
of rule of natural justice, if the order is likely to have civil consequences, the rule has to be applied, 25
unless the statute either expressly or impliedly excludes its applicability. 26The principles of natural
justice mean to act fairly i.e., fair play in action .27 According to Lord Diplock, "fairness" is identical with
natural justice.28
The above observations of the author have since proved prophetic because the Supreme Court has
laid down in a number of decisions that--

63i)  The requirement of natural justice is not confined to those cases where the
relevant statute lays down a quasi-judicial obligation.29 Principles of natural justice are
integrally embedded in our constitutional framework and their pristine glory and primacy
cannot and should not be allowed to be submerged by the exigencies of particular
situations or cases. The Supreme Court must always assert primacy of adherence to the
principles of natural justice in all adjudications.30 Good administration demands fair play
in act ion and principles of natural justice cannot be denied merely on the ground that it
is only an administrative act.31 The concept of natural justice can neither be put in a
straightjacket nor is it a general rule of universal application. Rules of natural justice are
not embodied rules. The phrase "natural justice" is not capable of a precise definition.
The underlying principle of natural justice evolved under common law is to check
arbitrary exercise of power by State or its functionaries. Therefore, the principles imply a
 710

duty to act fairly in action. The aim of rule of natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice.32 Transparency and good governance are
new components of natural justice.33 Even though procedure laws may not apply to
proceedings under Foreign Exchange Regulation Act , 1973 [Now repealed by the
Foreign Exchange Management Act , 1999 (42 of)], refusing to allow cross-examination
of a witness on whose evidence reliance is placed by authority, is a denial of fair
hearing.34
In cases where rule contemplates personal hearing, there will be failure of natural
justice, if the person who heard the matter is not passing the order and the order is
passed by his successor-in-office. If one person hears and another decides, then
personal hearing becomes an empty formality.35 In Shiv Raj's case, the court further said
that the doctrine of prejudice will have no application in case of flagrant violation of
natural justice i.e., there is no fair hearing.
In order to ensure fair hearing, courts can insist and require additional steps as long as
such steps would not frustrate apparent purpose of the legislation. Principles of natural
justice are not intended to operate as road block to obstruct statutory enquires. 36
58ii)  If the statute is silent, the Court would infer that obligation whenever the civil
rights of an individual are affected37 unless the exception would be justified by
exceptional circumstances.38
35iii)  If the statute excludes a hearing, it will have to be determined by the Court
whether, in view of the circumstances of the case, such exclusion can be upheld as a
'reasonable restriction'; if not, the obligation to hear will be implied if, by any means, it is
possible from the contents of the statute,39 and where that is not possible, the statute
itself must be struck down as unconstitutional, on the ground of procedural
unreasonableness.40
The normal rule is that wherever it is necessary to ensure against failure of justice, principles of
natural justice must be followed and such a provision must be read into the provisions unless the rule
excludes either expressly or by necessary implication, its application, in which case the validity of the
rule may fall for consideration.41
But in case an order is passed which really covers an emergency situation so as to meet a national
crisis involving the availability or distribution of any essential commodity and to effectuate a policy to
solve a national problem, the principles of natural justice can be excluded. Notifications under the
Sugarcane (Control) Order, 1966 are of legislative character and for that reason also prior hearing is
not necessary.42
In cases where it may not be feasible to hold a pre-decisional hearing, as for example, when the
authority has to deal with large number of cases or when prompt decision needs to be taken, a post-
decisional hearing may be held if pre-decisional hearing is not feasible. The normal practice of pre-
decisional hearing may be excluded if it has the effect of paralysing the administrative process, or the
need of promptitude or urgency of situation so demands and in such case post-decisional hearing may
be adopted.43
Order refusing to grant licence or privilege based on adverse information and without giving an
opportunity to confront the informants is not invalid under T.N. Arrack (Manufacture) Rules, 1961. 44
To sum up:
In order to be constitutionally valid, a law which subjects any normal trade or profession to licensing
must comply with the following requirements, inter alia;

64i)  The law must lay down the standards according to which the licensing
power is to be exercised by the authority upon which the power is conferred not only in
the matter of revoking licences,45 but also of imposing conditions46 in a licence.
59ii)  In general, the law must provide that the licensing authority should pass his
order after giving an opportunity to the applicants to be hear. 47
 711

36iii)  It may also be advisable to provide for an appeal48 from the decision of the
licensing authority and if an appeal is provided, the licensing authority should be
required to give its reasons for the order.
25iv)  If any power to make exemptions from the provisions of the law is conferred
upon the licensing authority, the law should lay dawn the grounds of principles according
to which the power may be exercised.49
20v)  There should be no power to delegate the licensing power to any person,
irrespective of his status or capacity.50
II. The requirement of reasonableness attaches not only to the law which confers the power of issuing
licence but also to the administrative exercise of that statutory power. Hence,--

84a)  If such conditions are appended to a licence as constitute an reasonable

restriction upon the freedom of business profession of the licensee, such conditions
must be treated as invalid by the Courts.51
87b)  As will be explained more fully hereafter, the function of licensing has also
been held to be quasi-judicial, particular where it relates to the cancellation of an existing
licence,52 and also in the matter of granting licences where the statute so requires. 53
When licence fee is prohibitive
As has been pointed out at the outset while the object of the power to grant a permit is to exclude
persons other than the permit-holder from a business, the object of the licensing power is to regulate a
business which is otherwise open to all citizens. But the terminology used in various statutes often blur
this distinction.
Thus, in the case of a dangerous business, like the business to deal in intoxicants, the Excise statutes
use the word 'licence'. In such a case, the object of the State in granting a licence is not merely to
regulate a business or realise a licence fee; the State claims the power to prohibit such business
altogether or to grant the exclusive privilege to carry on such business to a particular licensee, thereby
prohibiting all others to enter into such business. While in the case of an ordinary business, a citizen
has the right to get a licence if he satisfies the statutory conditions for its grant, 54 no one can claim
such right in the case of the business relating to intoxicants, even though he may fulfil the statutory
conditions.55 In such a case, even though the State may realise a fee for the grant of the licence it
cannot be called a 'licence fee', because its object is not regulation of the business; 56 it is in the nature
of a tax, its object being to raise revenue by selling the Government's right to grant an exclusive
privilege to carry on such business,57 which the Government might altogether prohibit.
The levy charged for parting with the privilege is "neither a tax nor a fee". It is simply a levy for the act
of granting permission or for the exercise of power to part with the privilege. 58
The State has the exclusive right to manufacture and sell liquor and to sell the said right in order to
raise revenue. The nature of trade is such that the State confers the right to vend liquor by framing out
either by auction or on private treaty. Rental is the consideration for the privilege granted by the
Government for manufacturing or vending liquor. Rental is neither a tax nor an excise duty. Rental is
the consideration for the agreement for grant of privilege by the Government. 59
The licence fee has no relation for the production or manufacture of toddy. The only relation it has to
the production and manufacture of toddy is that it enables the licensee to sell it. The privilege of selling
is auctioned well before the goods come into existence.
Properly speaking, there can be a monopoly only when a trade which could be carried on by all
persons is entrusted by law to one or more persons to the exclusion of general public. Such cannot be
the case with the business in liquor. Elimination and exclusion from business is inherent in the nature
of liquor business and it will hardly be proper to apply to such a business principles applicable to trade
which all could carry.60 In Har Shankar v. Dy. Excise & Taxation Commissioner ,61 it was held that
State's right is absolute when a complete prohibition is imposed and at that stage the State can part
with its exclusive privilege in any manner it likes and is also entitled to take any measures for having
the best price.62 Licence fee in so far as excise law connotes the idea of being the consideration in
 712

money received by the Government from a private person by grant of a licence (contract) for parting in
such person's favour its exclusive privilege or right of carrying on certain activities in respect of
country liquor or drugs.63
But, as will just be explained, in the case of trading in ordinary commodities, a licence fee may be
struck down as an unreasonable restriction under Art. 19(1)(g), if it is so excessive as to compel the
trader to close his business or it would tend to bring about such situation.
How far can the licensing power be delegated by the Legislature
U.S.A.
(A) U.S.A.--The nature of the licensing power is such that the exercise of the power in particular cases
must be vested by the Legislature in administrative authorities. But a statute which gives to an
administrative authority "a naked or arbitrary power to give or withhold a licence", 64 violates due
process as well as equal protection.65 It follows, therefore, that a statute prescribing licensing must lay
down sufficiently definite standards to guide the licensing authority in the exercise of his discretionary
power.66 Application of the standards or conditions to particular cases may then be left to the licensing
authority.
But though the vesting of unbounded discretion in the licensing authority would be viewed as
unconstitutional, in the determination of what constitutes a standard for the regulation of such
discretion, the Court has been rather lenient. Thus, where a statute authorised the licensing body to
be guided by 'public interest, convenience and necessity' it was held that a sufficiently definite
standard had been provided by the law for the guidance of the descretion of the licensing authority. 67
Similarly, it has been held that the Legislature has laid down a suficiently definite standard where it
provides that--(a) a licence-to practise the medical profession shall be granted only to 'persons of
good moral character and graduates of reputable medical schools'; 68(b) a licence to carry on a trade
shall be granted only on proof that 'the character, responsibility and general fitness of applicants are
such as to command confidence' or that the applicants 'possess a good repute in business'. 69
The Court would uphold even a less definite standard where the business is such that it could be
totally prohibited by the State.70
India
(B) India.--In India, similarly, it has been held that when licensing relates to the exercise of a
fundamental right, such as for the carrying of a business, trade or profession, the delegation of an
uncontrolled discretion upon the administrative authority would constitute an unreasonable restriction
upon the fundamental right.71 In that case, "administrative convenience" was regarded as a sufficient
criterion for exercise of administrative power. The Supreme Court upheld the provision saying that it
was enacted for "administrative convenience" and convenient and efficient assessment of income tax
and therefore the power of transfer of an assessment case from one place to another was not naked,
but guided and controlled by the purpose which was to be achieved by the Act itself. There must be
clear rules to guide such discretion, which must be laid down either in the statute itself or in the rules
made under it.72 In Hari Chand Sarda v. Mizoram Dt. Council ,73Mizo District Council framed regulation
which provided that a non-tribal would not carry on any trade in the district without a licence issued by
the council. If a licence was refused, the grounds for refusal were to be recorded by the Council. The
power of granting licence was delegated to the executive committee of the Council by rules. The
Supreme Court struck down the regulation as they did not provide any principle or standard on which
the committee was to act. There was no provision for appeal to any superior authority against the
refusal to grant or to renew licence and no civil court could adjudicate against any such order of the
committee. Though the committee was to record the reasons for refusal, that was hardly a safeguard
against arbitrary refusal.
In H.R. Banthia v. UOI ,74 the validity of rules with regard to grant of licence under Gold Control Act
was considered. The authority created under the Act was to grant licence or to renew it having regard
to such matters inter alia as the number of dealers in that 'region', anticipated demand, suitability of
applicant and public interest. The Supreme Court held that guidelines were vague, uncertain and
unintelligible. The rule was struck down.
 713

Under Sections 25 of Bihar Mica Act , 1947, the State Government can cancel a licence already
granted on certain conditions. But if it was cancelled, it was necessary to furnish the licensee with the
grounds for the proposed cancellation and to afford a reasonable opportunity to show cause against it.
It was held that the restriction was reasonable. The power was to be exercised by high officials of the
State which could be relied on to discharge its duties honestly, importantly and in the public without
extraneous consideration. The relevant section provided clearly ascertainable standards. The rule was
held valid.75
Where a law assumes the right of citizens to hold fairs, discretionary power conferred on the District
Magistrate to revoke the permit granted "without assigning any reason" is violative of Art. 19(1)(g).
Where a citizen is in a position to observe the rules, for conducting a fair, an unrestricted power on the
District Magistrate to prohibit the conducting of the fair is illegal. 76 Where no rules are framed and no
directions given on matters relating to grant of licence, and depends on unrestrained will of the
licensing officer, such conferment of power is violative of Art. 19(1)(g). 77
A circular issued by an authority prohibiting the manufacturers of copper utensils on machines and the
prohibition further threatened that violation of circular would result in cancellation of licence was held
not a regulation, but a prohibition which did not disclose any public interest. It was held that the
circular was without authority.78
Thus, the discretion is not uncontrolled where the law provides that a licence may be cancelled on the
ground that it was obtained by fraud, provided a reasonable opportunity to be heard is given to the
licensee before the order is made.79 Similarly, where the principles according to which the discretionary
power is to be exercised are laid down in the law, it cannot be challenged as having conferred
arbitrary discretion, because it enumerates the major criteria and then authorises the administrative
authority to take into consideration other 'relevant' circumstances.80 In A.N. Parasuraman v. State of
Tamilnadu ,81 the question was regarding the power of State Government while exercising its powers
while granting or refusing to grant permission to establish a private educational institution. The rule
simply said that the Government "may grant or refuse to grant permission". The only safeguard was
that an opportunity will be given, if the application is likely to be rejected. The applicant will be given
an opportunity to make a representation. The Court said that Government was left with unrestricted
and unguided discretion which rendered the provision "unfair and discretionary". In that case, the
Government could appoint any person, officer or other authority to exercise the power which was also
found to be objectionable. A provision that the 'District Magistrate' may grant licences to "whomsoever
he thinks fit" under the Cinematograph Act was held invalid, because the "powers are to be exercised
under the control of Government". It was held that the rule has transferred in effect the power to the
Government itself making the power of the District Magistrate more or less mechanical. 82
In other words, where the Legislature delegates enumerated powers, with the addition of words such
as 'and the like', the law cannot be held to impose an unreasonable restriction on the freedom
guaranteed by Art. 19(1)(g), if read with the context and other relevant provisions, the meaning of the
residuary expression becomes clear and sufficient guidelines are indicated. 83
For the same reason, the law cannot strike down as unreasonable or arbitrary, simply because no
corrective machinery like appeal or revision over the exercise of discretion by the statutory authority
has been provided, if other statutory safeguards and guidelines can be discerned by proper
interpretation.84 Provision of a corrective machinery by way of appeal or revision to a superior authority
to rectify an adverse order passed by an authority or body is only one of the several ways in which the
power could be checked or controlled and its absence will be one of the factors to be considered
along with others before coming to the conclusion that the power conferred is unreasonable or
arbitrary. The factors which have a bearing are the status of the person on whom the power is
conferred, the nature of the power, i.e., whether the exercise of the power depends on the subjective
satisfaction of the authority or body or is it to be exercised objectively by reference to some existing
facts or tests; is it a quasi-judicial power, requiring observance the principles of natural justice and
making of a speaking order, etc.85 Unless the court finds that the absence of an appeal is likely to
make whole procedure oppressive and arbitrary, the court will not condemn the provision as
unconstitutional.86 Where the power is entrusted to an authority like Reserve Bank of India which is
answerable to Central Government and is also to heed to the public opinion is a sufficient safeguard. 87
 714

A control order issued under Sections 3(2)(d) of the Essential Commodities Act , 1955 introduced a
permit system for export of rice and paddy from one place to another within the State. This was
challenged on the ground that it violates Art. 19(1)(g) in so far as it imposed an unreasonable
restriction on the petitioner's right to carry on trade and commerce and there was no provision for
appeal or revision against refusal to grant permit. Rejecting the argument, Supreme Court stated that
the permits were to be issued by the State Government or District Collectors. These high ranking
officials were expected to discharge their duties in a responsible and reasonable manner. There was a
presumption that public officials would discharge their duties honestly and in accordance with law. The
absence of a provision for appeal was held as not bad because the affected person could always
approach the State Government to review the matter when permit was refused by District Collector. 88
Learned authors M.P. JAIN and S.N. JAIN in their book Principles of Administrative Law89 have
commented on the above aspect thus:
"The argument that when power is exercised by high officials, chances of misuse of power are minimal
and no appeal need be provided in such a case is very tenuous indeed. If this principle is taken to its
logical end, then no control would be necessary when power is exercisable by a Minister. The fact,
however, is that authority may be misused or abused both by a high or low officer and there are
several cases to illustrate this point. Control mechanism is a guarantee against improper use of power.
The courts should insist that any unregulated delegation of power on the Administration is invalid
whether power is exercisable by high or low ranking official. Accordingly, the courts insist an atleast
one stage of appeal from the concerned official to a higher officer as a matter of right and not be
satisfied by a mere informal review".
The Supreme Court had occasion to consider how a Union Minister and a Chief Minister misused their
official position along with high officials that caused heavy loss to the Government and how near
relation could gain from patronage from such Ministers. 90 The comment made by learned authors
seems justified.
On the other hand, where the State Government or other administrative authority issues any direction
which is not authorised by the Act or the Order made thereunder, the direction will be void on the
ground of ultra vires.91
Reasonableness of a licence fee
U.S.A.
(A) U.S.A.--In the U.S.A., it has been held that it is reasonable for the State to exact a licence fee to
cover the costs of issuing the licence and regulating the licensed business 92 or the costs of making
investigations for the purpose of determining whether the applicant for a licence fulfils the conditions
laid down by the law for obtaining a licence.93
But a fee in excess of the reasonable costs may be imposed where the object is to prohibit the trade
or business and the State is reasonably entitled to prohibit such business, e.g., where it is patently
harmful or injurious.94
The imposition of sales tax on the sale of newspapers, books and periodicals at the rate of 6%
whereas in the case of other goods was at the rate of 4% was held ultra vires the freedom of Press.
State imposed sales tax on retailed sales to avoid double taxation. But the sale of components to be
used in production of goods that would themselves be sold at retails was exempted from sales tax,
with the result, the use in such publication of periodicals and newspapers became the only
components of goods in retail subject to the use of taxes. But later, some exemption was granted to
certain items. After such exemption only 11 publishers producing 14 out of 388 newspapers had to
incur the tax liability. One of the press, which had to incur a tax liability of about 2/3 of the total
revenue challenged the law, wherein it was held that law violated First Amendment, not only because
it singles out the press, but also it targets a small group of newspapers. 95 The Government may
impose generally applicable regulation upon the person, in common with other citizens that may be
burdened, but when Government subjects the Press or a segment of the Press to unique treatment
that is based on the content speech or that threatens to suppress the expression of particular ideas or
 715

viewpoints "the regulations are constitutionally suspect". Such regulations are valid only when the
Government proves that they are necessary to achieve overriding Governmental interest. 96
India
(B) India.--In India, it has been held that since a licence fee operates as a restriction on the citizen's
fundamental rights to carry on his profession or business, the reasonableness of the imposition can be
challenged.97 As in the U.S.A., it has been held that the object of a licence fee is to cover probable
expenses which Hence, may have to be incurred for the regulation of a particular trade or business. 98
Hence, as regards business in normal commodities, a licence fee would be held to constitute an
unreasonable restriction--

65i)  Where the total amount that. would be collected from a licence fee is
disproportionately high in comparison with the expenditure incurred by the Government
in connection with the business in question;99 or where the Government increases the
existing fee in tile absence of any corresponding increase in the expenditure to which the
fee relates,100 or where it virtually brings about a total stoppage of a normal business in
the commercial sense.101 But a mere increase in licence fee, even if it is a substantial
increase does not amount to expropriation and does not offend Art. 19(1)(g). Where a
licence fee of a cinema hall was fixed at R s. 400 in 1948 was increased to R s. 6,000 in
1958, by changing the basis of assessment, it was held that there is no violation of
fundamental right.102 In that case, court also emphasised that the needs of a municipal
body are limited compared with those of the Government whose needs are practically
unlimited and this factor also imposed a kind of restriction on the level of taxation by a
municipal body. A statute conferred power on the corporation to levy a licence fee on
cinema at such rates as the corporation may resolve from time to time. The provision
was held valid since legislative policy of imposing taxes at such rates by corporation as
may be necessary to defray the cost of discharging its duties was held as amounting to
sufficient guidance.

1 D. Nataraja Mudaliar v. STA, AIR 1979 SC 114 : (1978) 4 SCC 290.

2 SeeKailash Nath v. State, AIR 1985 All 291; Sisir Kumar v. State, AIR 1970 Ori 110; K.N. Naik v. Addl. Dt. Magistrate,
AIR 1971 Ker 162.

3 Sukhwinder Pal Bipin Kumar v. State of Punjab, AIR 1982 SC 65 : (1982) 1 SCC 31. But seeKashiram Dalmia v.
State, AIR 1978 Pat 265; T.S. Mahadev v. State of Karnataka, AIR 1986 Karnt 185.

4 Ananta Datta v. Dy. Supt. of Police, 1970 Goa 116.

5 Chaturbhai v. Union of India, AIR 1960 SC 424 : (1960) 2 SCR 362.

6 Dwarka Prasad v. State of Uttar Pradesh, AIR 1954 SC 224 : 1954 SCR 803.

7 Dwarka Prasad v. State of Uttar Pradesh, AIR 1954 SC 224 : 1954 SCR 803.

8 SeeKranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496.

9 Nakkudad Ali v. Jayaratne, (1950) 54 CWN 883(PC) .

10 This aspect, it is submitted, was overlooked by the majority but emphasised by the minority (SINHA C.J. & SUBBA
RAO, J.) in Kishan Chand v. Commr. of Police, AIR 1961 SC 705 (714) : (1961) 3 SCR 135. The view of the minority
has since been affirmed by Hari Chand v. Mizo Dt. Council, AIR 1967 SC 829 : (1967) 1 SCR 1012 (para s. 6-8).

11 Cf. Harishankar v. State of M.P. (1955) 1 SCR 380 : AIR 1954 SC 465.

12 Cf. Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

13 Chand v. Commr., AIR 1953 Cal 420.

14 Radhakrishna v. State of Bihar, AIR 1977 SC 1496 : (1977) 3 SCC 457; Har Snanker v. Dy. Excise Commr., AIR
1975 SC 1121 (1126) : (1975) 1 SCC 737.
 716

15 Kishan Chand v. Commr. of Police, AIR 1961 SC 705 (710) : (1961) 3 SCR 135.

16 D.F.O. v. Ram Sanehi, AIR 1973 SC 205 : (1971) 3 SCC 864; State of Orrisa v. Binapani, AIR 1967 SC 1269 :
(1967) 2 SCR 496: Kesava Mills v. Union of India, AIR 1973 SC 389 : (1973) 1 SCC 380 (para s. 7-8); Kraipak v. Union
of India, AIR 1970 SC 150 : (1969) 2 SCC 262; Cooper v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 248; Ratni
Devi v. Chief Commr., AIR 1975 SC 1699 : (1975) Supp SCR 361 : (1975) 4 SCC 467 (para s. 4,10); Nawabkhan v.
State of Gujarat, AIR 1974 SC 1471 : (1974) 2 SCC 121 (paras 6, 19).

17 State of Kerala v. Monarch Investment, AIR 1992 SC 493 : 1992 (Supp-3) SCC 208.

18 Kishan Chand v. Commr. of Police, AIR 1961 SC 705 (710) : (1961) 3 SCR 135.

19 Cf. Harishankar v. State of M.P. (1955) 1 SCR 380 : AIR 1954 SC 465.

20 Neelima Misra v. Dr. Harinder Kaur Paintal, (1990) 2 SCC 746; D. K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC
259 : (1993) 2 LLJ 696.

21 AIR 1978 SC 597 : (1978) 1 SCC 249.

22 See alsoMohinder Singh Gill v. CEC, AIR 1978 SC 851 : (1978) 1 SCC 405.

23 Liberty Oil Mills v. UOI, AIR 1984 SC 1271 : (1984) 3 SCC 478.

24 Mohd. Shahabuddin v. State of Bihar, (2010) 4 SCC 653 : (2010) 3 SCALE 204.

25 Manohar v. State of Maharashtra, AIR 2013 SC 681 : (2012) 13 SCC 14.

26 Mutha Associates v. State of Maharashtra, (2013) 14 SCC 304.

27 Kesar Enterprises v. State of UP, AIR 2011 SC 2709 : (2011) 13 SCC 733.

28 O'Reilly v. Machman, (1982) 3 All ER 1124.

29 D.F.O. v. Ram Sanehi, AIR 1973 SC 205 : (1971) 3 SCC 864; State of Orrisa v. Binapani, AIR 1967 SC 1269 :
(1967) 2 SCR 496: Kesava Mills v. Union of India, AIR 1973 SC 389 : (1973) 1 SCC 380 (para s. 7-8); Kraipak v. Union
of India, AIR 1970 SC 150 : (1969) 2 SCC 262; Cooper v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 248; Ratni
Devi v. Chief Commr., AIR 1975 SC 1699 : (1975) Supp SCR 361 : (1975) 4 SCC 467 (para s. 4,10); Nawabkhan v.
State of Gujarat, AIR 1974 SC 1471 : (1974) 2 SCC 121 (paras 6, 19).

30 Charan Lal Sahu v. Union of India, AIR 1990 SC 1480 : (1990) 1 SCC 613.

31 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 : (1978) 1 SCC 405; Maneka Gandhi v.
Union of India, (AIR 1978 SC 597 : (1978) 1 SCC 248.

32 Automobile Tyre Manufacturers' Assn. v. Designated Authority, (2011) 2 SCC 258). See alsoKesar Enterprises v.
State of UP, AIR 2011 SC 2709 : (2011) 13 SCC 733 (supra); Manohar v. State of Maharashtra, AIR 2013 SC 681 :
(2012) 13 SCC 14 (supra); Sahara India (Firm) v. CIT, (2008) 14 SCC 151 : (2008) 6 JT 83.

33 Dev Dutt v. UOI, AIR 2008 SC 2513 : (2008) 8 SCC 725.

34 Telestar Travels (P) Ltd. v. Special Director of Enforcement, AIR 2013 SC (Supp) 1041.

35 SeeUOI v. Shivraj, AIR 2014 SC 2242 : (2014) 6 SCC 564; see alsoRashid Javed and others v. State of UP, AIR
2010 SC 2275 : (2010) 7 SCC 781; Automobile Tyre Manufacturers' Assn. v. Designated Authority, (2011) 2 SCC 258 :
2011 AIR SCW 818.

36 Kanwar Nawar Singh v. Director of Enforcement, (2010) 13 SCC 255 : (2010) 10 SCALE 401.

37 D.F.O. v. Ram Sanehi, AIR 1973 SC 205 : (1971) 3 SCC 864; State of Orrisa v. Binapani, AIR 1967 SC 1269 :
(1967) 2 SCR 496: Kesava Mills v. Union of India, AIR 1973 SC 389 : (1973) 1 SCC 380 (para s. 7-8); Kraipak v. Union
of India, AIR 1970 SC 150 : (1969) 2 SCC 262; Cooper v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 248; Ratni
Devi v. Chief Commr., AIR 1975 SC 1699 : (1975) Supp SCR 361 : (1975) 4 SCC 467 (para s. 4,10); Nawabkhan v.
State of Gujarat, AIR 1974 SC 1471 : (1974) 2 SCC 121 (paras 6, 19); Raj Restaurant v. Municipal Corpn., (1982)
UJSC 851 (paras.5) (DB).

38 Cf. Harishankar v. State of M.P. (1955) 1 SCR 380 : AIR 1955 SC 465.

39 Chaturbhai v. Union of India, AIR 1960 SC 424 : (1960) 2 SCR 362.

 717

40 D.F.O. v. Ram Sanehi, AIR 1973 S.C 205: (1970) 1 SCC 248; State of Orrisa v. Binapani, AIR 1967 SC 1269 :
(1967) 2 SCR 496: Kesava Mills v. Union of India, AIR 1973 SC 389 : (1973) 1 SCC 380 (para s. 7-8); Kraipak v. Union
of India, AIR 1970 SC 150 : (1969) 2 SCC 262; Cooper v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 248; Ratni
Devi v. Chief Commr., AIR 1975 SC 1699 : (1975) Supp SCR 361 : (1975) 4 SCC 467 (para s. 4,10); Nawabkhan v.
State of Gujarat, AIR 1974 SC 1471 : (1974) 2 SCC 121 (paras 6, 19).

41 State of U.P. v. Vijay Kumar Tripathi, AIR 1995 SC 1130 : 1995 (Supp-1) SCC 552.

42 Laxmi Khandsari v. State of U.P., AIR 1981 SC 873 : (1981) 2 SCC 600 : (1981) 3 SCR 92.

43 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248; see alsoLiberty Oil Mills Ltd. v. UOI, AIR 1984 SC
1271 : (1984) 3 SCC 465; Rasila S. Mehta v. Custodian, (2011) 6 SCC 220 : AIR 2011 SC 2122; Harshad Shantilal
Mehta v. Custodian, (1998) 5 SCC 1 : AIR 1998 SC 2299; L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd.,
(2004) 11 SCC 456 : AIR 2005 SC 1209; Competition Commission of India v. SAIL, (2010) 10 SCC 744 : (2010) 10 JT
26.

44 Chingelpittu Bottlers v. Majestic Bottling Co., AIR 1984 SC 1030 : (1984) 3 SCC 258.

45 Dwarka Prasad v. State of U.P., 1954 SC 224 : 1954 SCR 803.

46 Seshadri v. D.M., AIR 1954 SC 747 : (1955) 1 SCR 686.

47 Fedco v. Bilgrami, A 1960 SC 415 (418) : (1960) 2 SCR 408.

48 Chaturbhai v. Union of India, AIR 1960 SC 424 : (1960) 2 SCR 362.

49 Chaturbhai v. Union of India, AIR 1960 SC 424 : (1960) 2 SCR 362.

50 Chaturbhai v. Union of India, AIR 1960 SC 424 : (1960) 2 SCR 362.

51 Cf. Harishankar v. State of M.P., (1955) ISCR 380 : AIR 1954 SC 465; Mineral Development Co., v. State of Bihar,
AIR 1960 SC 424 : (1960) 2 SCR 362, Purtabpore Co. v. Cane Commr., (1969) 1 SCC 308 (316) : AIR 1970 SC 1896;
City Corner v. Collector, AIR 1976 SC 143 : (1976) 1 SCC 124.

52 Seshadri v. D.M., AIR 1954 SC 747 : (1955) 1 SCR 686; Fedco v. Bilgrami, AIR 1960 SC 415 (418) : (1960) 2 SCR
408.

53 N.P.T. Co. v. N.S.T.C., (1957) SCR 98 (106, 118) : AIR 1957 SC 232.

54 Cf. I.M. Industries v. State of Bihar, 1971 SC 1182 (1186) : (1971) 2 SCC 236.

55 State of Orissa v. Harinarayan, AIR 1972 SC 1816 : (1972) 2 SCC 36 (para. 17).

56 State of Orissa v. Harinarayan, AIR 1972 SC 1816 : (1972) 2 SCC 36 (para. 17).

57 State of Orissa v. Harinarayan, AIR 1972 SC 1816 : (1972) 2 SCC 36 (para. 17).

58 State of Punjab v. Devan Modern Breweries Ltd. (2004) 11 SCC 26 - by majority - para 113.

59 Nashirwar v. State of MP, AIR 1975 SC 360 : (1975) 1 SCC 29 : (1975) 2 SCR 861.

60 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : (1954) SCR 873.

61 Har Shankar v. Dy. Excise & Taxation Commissioner, (1975) 1 SCC 737: AIR 1975 SC 1121 : (1975) 3 SCR 254.

62 See alsoPanna Lal v. State of Rajasthan, (1975) 2 SCC 633; Kerala Distilleries and Allied Products Ltd. v. Asst.
Commissioner, (2000) 117 STC 553(Kerala) ; State of Haryana v. Jage Ram, AIR 1980 SC 2018 : (1980) 3 SCC 599.

63 State of U.P. v. Sheopat Rai, 1994 (Supp-1) SCC 8.

64 Yick Wo v. Hopkins, (1886) 118 US 356.

65 Douglas v. Noble, (1923) 261 US 165.

66 N.Y. Central Securities v. U.S., (1933) 287 US 12; Fed. Communications Commn. v. Pottsville Broadcasting Co.,
(1939) 309 US 134 (138).
 718

67 N.Y. Central Securities v. U.S., (1933) 287 US 12; Fed. Communications Commn. v. Pottsville Broadcasting Co.,
(1939) 309 US 134 (138).

68 Yick Wo v. Hopkins, (1886) 118 US 356.

69 Gundling v. Chicago, (1900) 177 US 183.

70 Crowley v. Christensen, (1890) 137 US 86.

71 Pannalal v. Union of India, (1957) SCR 233 (262) : AIR 1957 SC 397; Hari Chand v. Mizo Dt. Council, AIR 1967 SC
829 : (1967) 1 SCR 1012 (para s. 6-7).

72 Pannalal v. Union of India, (1957) SCR 233 (262) : AIR 1957 SC 397; Hari Chand v. Mizo Dt. Council, AIR 1967 SC
829 : (1967) 1 SCR 1012 (para s. 6-7).

73 AIR 1967 SC 829 : (1967) 1 SCR 1012 (supra).

74 AIR 1970 SC 1453 : (1969) 2 SCC 166 (supra).

75 Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468 : (1960) 2 SCR 609; see alsoChandrakant Saha v.
UOI, AIR 1979 SC 314 : (1979) 1 SCC 285.

76 Ganpatji Singhji v. State of Ajmer, AIR 1955 SC 188 : (1955) 1 SCR 1065.

77 Dwarka Prasad Laxmi Narain v. State of U.P., AIR 1954 SC 224 : (1954) SCR 803. See alsoHarackchand
Ratanchand Banthia v. Union of India, AIR 1970 SC 1453 : (1969) 2 SCC 166 under the Gold Control Act .

78 Ghulam Rasool v. State of J & K., AIR 1987 J & K. 3.

79 Fedco v. Bilgrami, AIR 1960 SC 415 (418) : : (1960) 2 SCR 362.

80 Cf. Express Newspapers v. Union of India, AIR 1958 SC 578 (624) : 1959 SCR 12.

81 AIR 1990 SC 40 : (1989) 4 SCC 683.

82 State of Punjab v. Hari Kishan Sharma, AIR 1966 SC 1081; State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650.

83 Express Hotels Pvt. Ltd. v. State of Gujarat, (1989) 3 SCJ. 71 : AIR 1989 SC 1949 : (1989) 3 SCC 677 (para. 10).

84 Express Hotels Pvt. Ltd. v. State of Gujarat, (1989) 3 SCJ. 71 : AIR 1989 SC 1949 : (1989) 3 SCC 677 (para. 10).

85 Munni Lal v. Town Planning Officer, (1995) 4 SCC 641; Workmen v. Meenakshi Mills, AIR 1994 SC 2696 : (1992) 3
SCC 336 : (1992) 2 LLJ 294.

86 Prakash Amichand Shah v. State of Gujarat, AIR 1986 SC 468 : (1986) 1 SCC 581.

87 Joseph Kuruvilla Vellukunnel v. RBI, AIR 1962 SC 1371 : 1962 (Supp-3) SCR 632. See alsoAccountant General v.
S. Doraiswamy, AIR 1981 SC 783 : (1981) 4 SCC 93; Naraindas Indurkhya v. State of M.P., AIR 1974 SC 1232 : (1974)
4 SCC 788.

88 Chinta Lingam v. Govt. of India, AIR 1971 SC 474 : (1970) 3 SCC 768.

89 See M.P. Jain and S.N. Jain, Principles of Administrative Law, 6th Edn. 2007, Vol. I, p. 975.

90 SeeCentre for Public Interest Litigation v. UOI, (2012) 3 SCC 1 : AIR 2012 SC 3725; Manohar Joshi v. State of
Maharashtra, AIR 2012 SC 2043 : (2012) 3 SCC 619.

91 Dt. Collector v. D.G.T.A., (1989) 1 UJSC 445 (para. 6).

92 Gundling v. Chicago, (1900) 177 US 183.

93 Charlotte Co. v. Gibbes, (1892) 142 US 386.

94 Rast v. Van Denman Co., (1915) 240 US 342.

95 Minneapolis Star & Tribune Co. v. Minnesofa Commission of Revenue, (1983) 460 US 575. See alsoArkansas
Writers Project v. Ragland, (1987) 481 US 221.

96 Massey, American Constitutional Law - Powers and Liberties, 2nd Edn., p. 1067.
 719

97 Yasin v. Town Area Committee, (1952) SCR 572 (578) : AIR 1952 SC 115; Himmat Lal v. State of M.P., AIR 1954 SC
403 (305) : 1954 SCR 1122.

98 Commr., H.R.E. v. Lakshmindra, AIR 1954 SC 282 (296) : 1954 SCR 1005.

99 Varadachari v. State of Madras, AIR 1952 Mad 764.

100 Guruviah v. State of Madras, AIR 1958 Mad 158 (169).

101 Cooper R.C. v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 248.

102 Corporation of Calcutta v. Liberty Cinema, AIR 1965 SC 1107 : (1965) 2 SCR 477.

60ii)  Where the licensing authority issues licences to persons engaged in

different trades and occupations, it would be unreasonable if they so fixed the fees that
the whole cost incurred by them in connection with all the licences or a grossly
disproportionate part of it was imposed on a particular trade or a few particular trades. 1
But--
(i) The object of a licence fee may be regulation as well as raising revenue. 2 Hence, it would not be
correct to say that a licence fee would be void as an unreasonable restriction of the fundamental right
guaranteed by Art. 19(1)(g) whenever it is in excess of the expenses or regulation.3 Thus was held by
the Supreme Court in connection with the, licence fee imposed for the regulation of the business of
retail sale of intoxicating liquor.4
As per a Government order, a right of renewal in liquor vend was clearly indicated in Government
Policy (2001-2002) for a block period of 3 years from 2001-2004. The said Government order was
repealed by another order introducing a provision for granting licence for all the enhanced number of
shops by a fresh draw, on the basis of earlier Government order. It was held that the Government
should not have annulled the earlier bids when the Government does not purport to abolish the trade
in intoxicating liquor and what it purports to do is to change its policy intended to augment its income
of excise revenue. While holding that the Government can change its policy for the purpose of
augmenting its excise revenue, it was held that denial of right to renewal was bad when it has followed
the very same procedure for settling the privileges and decision was arbitrary. It was held that the
intention was only to substitute new licences in the place of old licences and hence the same is
invalid.5
In other words, a system of licensing may be selective or non-selective. The object of 'selective'
licensing is regulation, whereas 'non-selective' licensing or registration is resorted to as means of
raising the revenue.6 In regard to potable liquor, since the state has the exclusive right or privilege it
can charge any reasonable expense or even consideration for permitting such activity by grant of
licence and the licensees ought to comply with all reasonable demands. The establishment charges
demanded are in the nature of price for parting with the privilege to permit manufacture and sale of
liquor and the privilege exclusively vests with the Government. Fixed fee or licence fee in relation to
potable liquor or intoxicants is the price or consideration which the Government charges to licensees
for parting with its exclusive privilege and granting them licences. 7 The licence fee payable in advance
in monthly instalments is in essence rent charged for parting with State's privileges for manufacturing
and vending liquor. It has no element of excise duty. Rental is the consideration for the privilege
granted by the Government for manufacture and vending liquor. 8 Merely, because the amount
demanded is after the expiry of the period of licence, cannot make the demand illegal. 9 The latter is
outside the purview of Art. 19(6), if its sole subject is to raise revenue.10
Hence, in the following cases a licensing system cannot be challenged as violative of Art. 19, either
because it prohibits in the public interests, a new trader or operator in the trade, 11 or opens the trade
only to selected persons or channels; or exposes existing operators to fresh competition; or the
licence fee has no quid pro quo to the service rendered:12
 720

85a)  Intoxicants.13
88b)  Trades which are injurious to the health, morals or safety of the public. 14
57c)  Imports and exports.15
(ii) Where the object of the fee is to meet the expenses of an establishment for supervision of a
factory, it cannot be regarded as a tax on profession merely because the licence fee is levied on a
sliding scale according to the horse power and men employed in the factory. 16
Exceptions to Article 19(1)(g)
By successive amendments, the freedom of trade, etc., guaranteed by Art. 19(1)(g), has been
burdened with a considerable number of exceptions. If a law, whether temporary or permanent, falls,
under any of these exceptions, the application of Art. 19 will be excluded altogether so that its
constitutionality cannot be challenged on any of the grounds available under Cl. (6), 17 and Courts
would be precluded from examining whether the restrictions imposed by such law are 'reasonable' or
they are conducive to the interests of the general public. These exceptions are:

36.  Sub-cls. (i) and (ii) of Cl. (6), which were inserted by the Constitution (First
Amendment) Act, 1951.
39I.  Art s. 31A-31C, which have been inserted by various amendments up to the
42nd Amendment Act, 1976 as will be explained hereafter.
Law imposing professional or technical qualifications
Freedom of profession does not mean the freedom to carry on any trade or profession without having
the requisite qualification or fitness, or the carrying on of the trade or profession in a manner
prejudicial to the public interests.
In many countries, there are statutory professional Councils or Boards having disciplinary power over
its members and the power to make rules. etc., for the control of the profession--laying down
qualifications, defining act s of misconduct, etc.
U.K.
(A) England.--Thus, in England, there is the General Medical Council having such powers over
medical practitioners, under the Medical Acts, 1858 to 1956. Similarly, the Law Society controls
solicitors under the Solicitors Act s, 1932 to 1957. The object to these statutes are--
(a) to secure that none but properly qualified candidates be admitted to the profession; (b) to maintain
a proper standard of efficiency and character in the duly qualified members of the profession; and (c)
in the return for the labour and expense involved in preparing and practising the profession, to protect
its members (as well as the public) against unauthorised intruders and competitors. 18
U.S.A.
(B) U.S.A.--Similarly regulation of the professions of law dentistry, medicine 19 debt adjustment and
other like employments (e.g., railway engine driver20 ) which involve the safety and health of the
general public also obtains in the U.S.A.21 In the absence of fraud or arbitrary refusal of opportunity for
fair test, the findings of the boards empowered to regulate the qualifications and training relating to a
profession my be made final.22 In Williams v. Lee Opticals ,23 court observed that Legislature may have
concluded that eye examinations were so critical not only for correction of vision, but also detection of
latent ailments as diseases that every change in frames and every duplication of a lens should be
accompanied by a medical expert. The Court concluded: "The day is gone when the court uses the
Due Process Clause of the Fourteenth Amendment to strike down State laws, because they may be
unwise, improvident or out of harmony with particular school of thought. For protection against abuse
by Legislature, people must resort to the polls not to the courts. In that case, the challenge was to a
law passed by State which made it unlawful for any person other than a licensed ophthalmologist or
optometrist to fit lenses to the face or to duplicate or to replace lenses except upon written prescriptive
authority of licensed ophthalmologist or optometrist.
 721

The State's legitimate concern for maintaining high standards of professional conduct extends beyond
initial licensing and would justify suspension of the licence of a physician on the ground of conviction
for an offence, even though the offence may not involve moral turpitude 24; or revocation of the licence
as a penalty for professional advertising of the type prohibited by the statute. 25
Qualifications may also be prescribed for professions or callings requiring special skill 26 or knowledge
of local or natural conditions (e.g., pilotage27 ). In the case of the legal profession, it is not
unconstitutional to require that entrants must possess character and fitness for that profession and
that they must take an oath of loyalty to the Constitution. 28
In the case of a trade or business, the State, in requiring technical qualifications, may lay down
regulations necessary to secure the confidence of the public in such business when it is a business for
the utility of the public and it is essential that it should have the confidence of the public, e.g., business
of bankers, common carriers and like.29
But, in imposing these qualifications or restrictions, the State cannot make any discrimination between
citizens of the same class. Thus, a statute which exempted exmilitary personnel from the intellectual
and moral requirements of Bar examination, was held bad. 30 The Courts can also interfere where the
relevant law or the finding of the competent authority is arbitrary or not rationally supported by any
lawful evidence, so as to violate 'Due Process'31 or where the qualification prescribed by the law has
no rational connection with the applicant's fitness or capacity to carry on, the profession or calling. 32
India
(C) India.--1. Under the present clause the State may lay down the professional or technical
qualifications necessary for carrying on any profession, occupation, trade business, e.g., for running a
physical therapy establishment.33
2. The power of determining whether a particular candidate possesses the statutory qualifications and
whether he should be admitted to the membership of the profession concerned is usually vested in a
Governing Board.34
3. Apart from insisting on qualifications, the State may require that a person who carries on a
profession which deals with substances which are likely to affect the health 35 or morality of the Public
must obtain licence, imposing restrictions necessary to protect the public. 36
Article 19(6), authorises the State to make any law, in the interests of general public, imposing any
reasonable restrictions to the exercise of the rights conferred by Art. 19(1)(g), particularly in the matter
of fixing professional and technical qualifications necessary for practising any profession or carrying
on any trade or occupation. Unlicensed or uncertified medical practitioners jeopardise life and health
of the people. The action initiated by the State Government against unlicensed practitioners to
prosecute them with the aid of police aid is proper. 37
Article. 19(6)(i) of our Constitution only says about prescribing qualification and not disqualification.
Similar are the expression used in Pakistani Constitution. Commenting on the above expression, it is
observed "Generally speaking, qualification and disqualification may run into each other. For
assistance, it is a qualification to be a citizen of Pakistan. Obversely, it is a disqualification not to be a
citizen of Pakistan.38
Eminent Judge JUSTICE (R) FAZAL KARIM in his book on Judicial Review of Public Action39 has
stated thus:
"Qualification means that which makes a person fit to an act, it relates to fitness or capacity of a
person for a particular pursuit or profession. It should therefore, be quite appropriate to refer by
qualifications to the competence or the positive qualities needed for carrying on a profession and to
regard to the obstacles in the carrying on a profession as disqualifications. Every profession requires
for the efficient performance of the duties involved in it. (i) knowledge, (ii) skill, and (iii) a moral
standard. In short, whatever goes to his competence or makes a person fit to discharge the duties
involved in his profession is a qualification. On the other hand, if a person is debarred from entering a
profession though he is admittedly quite competent to discharge his duties for some reasons not
 722

connected with his competence that is a disqualification. For example, a person may be disqualified
because he has served under a foreign Government or because he belongs to a particular tribe or his
father was a rebel or because he has already sufficient income from lands or he is a shareholder of a
company and so on. He may be a most competent person for carrying on a profession, yet he may be
debarred because of some other attributes which he possesses that will be a disqualification".
The case of Government of Pakistan v. Akhlaque Hussain 40 affords a striking example. It was a case
in which the respondent was a person in all respects qualified to practise law, but was disqualified to
do so because he had been a judge of the High Court. 41 See Art. 124[(]7[)] and Art. 220 of the
Constitution of India .
A rule prohibiting enrolment of citizens who is engaged in another profession was held valid in Haniraj
L. Chulani (Dr.) v. Bar Council of Maharashtra and Goa .42 In that, a medical practitioner was not
allowed to enroll himself as an advocate, though he was otherwise fully qualified. It was held that a
person cannot be permitted to enroll since he would be term between two conflicting loyalties; loyalty
to his clients on the one hand and loyalty to his patients on the other. 43
A full time legal advisor to a company or corporation, though he may be representing his employer in
court, cannot be enrolled as an advocate, where there could be conflict of interest and duties. 44
If the acquisition of a degree of law is essential for being qualified to be admitted as an advocate, on a
State roll, it is obvious that Bar Council of India have the authority to prescribe the standards of legal
education to be observed by the Universities in the country. A provision that a person must be qualified
in law after undergoing regular courses, i.e., must have completed by regular attendance at the
requisite number of lectures, tutorials and moot courts in a college recognised by a University is a
qualification for enrolment. A person though obtained a degree in law by correspondence course
cannot, therefore, be eligible to be an advocate. 45
Putting age restriction in private vocation or profession is unconstitutional. For placing a complete
prohibition on any professional activity, there must be strong reason for the same with a view to attain
some legitimate object and non-imposition of such prohibition must result in jeopardising or seriously
affecting the interest of people in general. Otherwise, it would not be a reasonable restriction. 46
Restriction placed on Mukthiars by rules made by High Court to practise was upheld in Devata Prasad
Singh Chaudhuri v. Hon'ble Chief Justice and Judges of Patna High Court .47 Restrictions on members
of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) from appearing, act ing or pleading
before CESTAT on demitting office under Sections 129(6) of Customs Act , 1962 was held
reasonable. Court held that it is not an absolute restriction, for, such person can appear before other
courts and the field of legal profession is wide open. The Court said that such restriction is intended to
serve a larger public interest and to uplift professional values and standards of advocacy adding
further to public confidence in the administration of justice. 48 In another case, court also held that right
to practise is not an absolute right. It is subject to possession of requisite qualification contemplated
under Advocates Act , 1961 and limitation prescribed by Bar Council of India Rules . Persons who
were appointed as ad hoc judges in Fast Track Court ceasing to be judges after discontinuation of fast
track courts and such appointees' right to practise is abridged with respect to courts in which they
acted as judges and courts of equivalent or lower grades was held valid. It was also held that there is
no absolute restriction, but only a partial restriction.49
In regard to medical profession, private practice was prohibited in regard to such practitioners who are
teachers in medical institutions. The same was held valid. Court said that it was intended to maintain
standards of medical education which was the very object of enacting Indian Medical Council Act ,
1956.50
In Haniraj L. Chulani v. Bar Council of Maharashtra and Goa ,51 a rule which prohibited a person who is
working in full time or part time service or employment or is engaged in any trade, business or
profession from practising law as per rules framed by Bar Council of State was held valid. Court said
that right to practise is subject to reasonable restriction. Court said that litigants are also members of
general public and if in their interest any rule imposes any restriction on the entry into legal profession
and if such restriction is founded to be reasonable, Art. 19(6) would not get stultified.
 723

In N.K. Bajpayi v. UOI ,52 the Court said: "Having regard to the prevalent values and conditions of
profession, most of the legal practitioners would not stoop to unhealthy practice or tactics but the
Legislature in its wisdom, has considered it desirable to eliminate any possibility of conflict between
the interest and duty and aimed at achieving this object or purpose by prescribing requisite restriction
to private and public interests, the institutional interest and expectation of the public at large from an
institution. There are the balancing tests which are applied by the courts even in the process of
interpretation or examining of the constitutional validity of a provision".
The contention that the candidate for enrolment should have undergone the law course must be
recognised by the Bar Council of India was held not valid on the ground that the Advocates Act , 1961
prescribes only qualification of a course in law having three years duration from any University in India
recognised for the purpose of the Act, and a separate recognition by BCI is not necessary. 53
A provision in Bar Council Rules, that persons who have completed forty-five years of age are not
entitled to be enrolled as advocate was held unconstitutional and beyond the powers of Bar Council. 54
Similarly a provision that the person intending to enrol himself must have undergone a pre-enrolment
training before he is enrolled is not valid since it goes against statutory provisions. 55
Pakistan Supreme Court has held that the word "qualification" has been used to confer a right upon a
citizen to enter upon any lawful profession or occupation and not to conduct any lawful trade or
business. In other words, qualification can by law be prescribed for entering upon any lawful
profession or occupation, but not for any lawful trade or business. 56 JUSTICE (R) FAZAL KARIM of
Supreme Court of Pakistan in his book Judicial Review of Public Actions,57 has commented on the
decision and has stated that the decision requires reconsideration.
Scope for judicial review as to professional qualifications
U.S.A.
(A) U.S.A.--As has been just pointed out, the function of requiring professional qualifications is not
excluded from the purview of 'Due Process'. Hence, such regulations, like other 'police regulations',
are subject to the test of reasonableness.58
But since the middle of the 20th century, the American Supreme Court has ceased to question the
soundness or reasonableness of the legislative policy behind a measure of economic regulation in the
name of substantive due process.59 But the Court would interfere where a law to regulate advertising
substantially restricts a First Amendment freedom, e.g., freedom of expression.60
India
(B) India.--In some cases61 the question of reasonableness of laws. imposing professional
qualifications was allowed to be raised. But, even before the amendment of Cl. (6) in 1954 while the
first, part of that clause permitted 'reasonable restrictions' to be imposed, the latter part relating to
'professional or technical' qualifications did not use the word 'reasonable' and completely took out
such laws from the operation of "sub-clause (g)" of Art. 19(1). 62
The 1951 Amendment of Cl. (6) has made it clear that the first part of Cl. (6) imposing the condition of
reasonableness, public interests, etc., will not apply to the laws coming under sub-cls. (i)-(ii) of that
clause. Consequently, the constitutionality of any law made by a competent Legislature which lays
down professional qualifications cannot be challenged on the ground that it infringes the guarantee in
Art. 19(1)(g).63 No question of its 'reasonableness' can be raised and there is no scope for judicial
review, provided of course, the restrictions imposed by such law are confined to laying down
'professional or technical qualifications' relating to the occupation, trade or business, so as to bring it
within the protection of the sub-clause.
'Qualifications' relate to the fitness or capacity of the party for a particular pursuit or profession-- "any
natural endowment or any acquirement which fits a person for a place... or employment...". 64
The freedom to practise any profession cannot obviously mean that any one can practise legal or
medical profession. Only those who are qualified to do so must be allowed to practise. Hence the
Constitution has laid down that State can make law relating to the professional or technical
 724

qualification necessary for practising any profession or carrying on any trade or business. Hence such
laws as the Advocates Act , Medical Council Act, the Chartered Accountants Act , Dentists Act or
Indian Nursing Council Act are valid. Such restrictions are essential to ensure that only qualified
persons are allowed to practise relevant profession. A statute imposing professional or technical
qualification for practising a profession must be construed in general public interest and is valid. 65
The Supreme Court held that unqualified doctors should not be allowed to practise and it is the duty of
court to safeguard public health.66
Hence, though the Courts may not interfere to question the reasonableness of a law requiring
professional or technical qualifications, it may interfere if, in the guise of laying down such
qualifications, the State imposes conditions or restrictions which have no relation to the fitness for
carrying on the profession, trade or business67or seeks to inflict a punishment for a past act which was
not punishable when it was committed,68 so as to bring it within the purview of Art. 20(1), post.
Imposing a ban on carrying on a private avocation or profession on attaining a particular age chosen
by State, in the absence of strong reasons in the interest of people in general is unconstitutional. 69
Similarly a rule framed by Bar Council that persons beyond forty-five years of age are not entitled to
get enrolled is bad.70
The fact that the power to admit (or reject) a person to a profession is vested in a Statutory Board
does not render the statute an unreasonable restriction under Art. 19(1)(g). But the Court may
interfere with the exercise of its discretion where it is arbitrary or mala fide.71
Right to work
In regard to Government employee or employee of a statutory corporation, employee's right to
continue in public employment till he attains the age of superannuation or his services is duly
terminated in accordance with just, fair and reasonable procedure prescribed by the Constitution is
recognised.
A permanent employee of a statutory authority, Corporation or instrumentality under Art. 12 has a lien
on the post till he attains superannuation or is compulsorily retired or service is duly terminated in
accordance with the procedure established by law. Security of tenure ensures the benefit of pension
on retirement. Dismissal, removal or termination of his/her service for inefficiency, corruption or other
misconduct is by way of penalty. He/she has a right to security of tenure which is essential to inculcate
a sense of belonging to the service or organisation and involvement for maximum production or
efficient service. It is also a valuable right which is to be duly put an end to only as per valid law.
Doctrine of pleasure is not absolute, but subject to condition that when a Government servant is
dismissed from service or reduced in rank, departmental enquiry is to be conducted to enquire into his
misconduct, and only thereafter if he is found guilty, action contemplated can be taken against him.
Doctrine of pleasure as stated in Art. 310(1) cannot be invoked independently with the object of
justifying contravention of Art. 311(2).72 The legal position of a Government servant was more of status
than of contract and that the hallmark of status was the attachment to a legal relationship of rights and
duties imposed by the public law and not by mere agreement between parties. 73 The power to dismiss
a public servant at pleasure is outside the scope of Art. 154 of the Constitution and therefore cannot
be delegated by Governor to a subordinate officer. The tenure at pleasure is subject to limitation or
qualification mentioned in Art. 311 of the Constitution. The Parliament or State Legislature cannot
make a law abrogating or modifying the tenure so as to impinge upon the overriding power conferred
upon the President or Governor under Art. 310 as qualified by Art. 311. 74
The right to public employment and its concomitant right to livelihood receive their succour and
nourishment under the canopy of the protective umbrella of Art s. 14, 16(1), 19(1)(g) and 21. Different
articles in the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution
must be read as an integral and incorporeal whole with possible overlapping with the subject-matter of
what is to be protected by its various provisions particularly the Fundamental Rights. When the
provisions of an Act or Regulations or Rules are assailed as arbitrary, unjust, unreasonable,
unconstitutional, public law element makes it incumbent to consider the validity thereof on the anvil of
interplay of Art s. 14, 16(1), 19(1)(g) and 21 and of the inevitable effect of the impugned provision on
 725

the rights of a citizen and to find whether they are constitutionally valid. The right to a public
employment is a constitutional right under Art. 16(1). All matters relating to employment include the
right to continue in service till the employee reaches superannuation or his service is duly terminated
in accordance with just, fair and reasonable procedure prescribed under the provisions of the
Constitution or the rules made under proviso to Art. 309 of the Constitution or the statutory provision or
the rules, regulations or instructions having statutory flavour made thereunder. But the relevant
provisions must be comfortable to the rights guaranteed in Parts III and IV of the Constitution. Article
21 guarantees the right to live which includes right to livelihood, the deprivation thereof must be in
accordance with the procedure prescribed by law conformable to the mandates of Art s. 14 and 21 as
to be fair, just and reasonable but not fanciful, oppressive or at vagary. 75
Under the Indian Constitution this is a non-justiciable right (Art. 41).
Of late, there has been mooted a political agitation that the right to work should be made a
'Fundamental right'. But the constitutional advisers of Mr. V. P. Singh failed to draft a Bill for amending
the Constitution for this purpose,--simply because a right to work or employment cannot possibly be
enforced through a Court. Under the Indian Constitution, a right may be called a fundamental right
only if it can be enforced by means of a writ or order of the Supreme Court or a High Court. But no
Court has the power to create a job for a jobless person. Some people said that the purpose would be
served by providing for a compulsory dole for unemployed persons. But to provide monetary
assistance is not the same thing as providing employment. No amendment of the Constitution is
necessary for providing unemployment dole. Legislative power in this behalf is already there in Entry
23 of the Concurrent List. Some such thing was introduced in West Bengal without constitutional
amendment and it was later withdrawn because it proved to be a failure to solve the problem of
unemployment.
The only way to eradicate unemployment is to increase production or the economic capacity of the
State to create more jobs. This is made clear by the second paragraph of Art. 40 of the 1977-
Constitution of the U.S.S.R., and that is exactly what is suggested in Art. 41 of our Constitution. There
is no Constitution in the world which says that an unemployed person may force the State, through a
Court of law, to create a post for him, irrespective of the resources of the State. The provisions in the
Preamble to the French Constitution of 1946 or in Art. 23(1) of the Universal Declaration of Human
Rights, 1948 or in Art. 6 of the International Covenant on Economic, Social and Cultural Rights, 1966,
no doubt issue a directive to the State as does Art. 41 of the Indian Constitution, but none enjoin that
an unemployed person may resort to a court of law to enforce the Government to give him
employment.
In short, to guarantee the right to work as a fundamental right is as absurd as to fix a square peg in a
round hole. Of course, it would remain on the Election manifesto of various political parties to capture
the votes of youngsters which have been expanded since the lowering of the voting age to 18 years,
by the 1988-amendment of Art. 326.
[See, further, under Art. 41, post]
SUB-CLAUSE (ii)
Trading by the State
U.S.A.
(A) U.S.A.--As has been stated earlier, the degree of permissible control of a business depends upon
the nature of the public interest affected by it. Thus, it has been held that in the matter of supplying
necessaries like fuel or electricity76 or the operation of a flour mill77 or the sale of gasoline,78 it would not
be a violation of 'due process' for the State to enter into the business and compete with private
traders. In a business like banking and insurance, again, "the power of the State is broad enough to
take over the whole business, leaving not part for private enterprise".79
India
 726

(B) India,--Since Art. 19(1)(g) declares that every citizen has the right to carry on any trade or
business, the right would obviously be impaired if the State itself seeks to carry on a trade or business
ousting private traders from that trade, wholly or partially. 80 Hence, under the original Cl. (6), such
action on the part of the State could be justified only if it was upheld as reasonable by the Court.81
The Amendment of 1951, which inserted sub-clause (6)(ii) exempts the State from that condition of
reasonableness, by laying down that the carrying on of any trade, business, industry or service by the
State would not be questionable on the ground that it is an infringement of the right guaranteed by Art.
19(1)(g).82It was held in that case that it is open to the State to make laws for creating State
monopolies either partially or complete in respect of any trade or business or industry or service. The
State may enter into trade like any other person either for administrative reasons or with the object of
mitigating the evils in the trade or even for the purpose of making profits in order to enrich State
exchequer. The law relating to such trading act ivities must be presumed to be reasonable and in the
interest of general public. The State shall now be free either to compete with any private traders or to
create a monopoly in favour of itself without being called upon to justify its action in Court as
'reasonable'.83 In Akadasi's case,84 JUSTICE GAJENDRAGADKAR adopted a liberal approach to the
problem relating to clause (6). The purpose of amendment according to learned Judge was only to
clarify the intent of the framers of the Constitution who had assumed that State monopolies would fall
under and be protected by cause (6) as it originally stood, an assumption which was rendered invalid
by the judicial decision.85 It was thus thought necessary to clarify the intention by making the
amendment. In that case, the Orissa Kendu Leaves (Control of Trade) Act, 1961 was challenged
raising important questions as to the scope and effect of the provision of Art. 19(6). The petitioner held
land and grew Kendu leaves which were used for manufacturing bidis and prior to 1961 carried
extensive trade in the sale of these leaves. The State by the said Act acquired monopoly in 1961
which came into force in 1962. While dealing with the precise denotation of the words "a law relating
to State monopoly", the learned Judge observed that the expression should be construed to mean the
law relating to the monopoly in its absolutely essential features, for, it is only these essential and basic
provisions which are protected by the latter part of Art. 19(6). Provisions which are subsidiary,
incidental or helpful to the operation of the monopoly, do not fall under the said part and thus validity
must be judged under the first part of Art. 19(6). Accordingly s. 4 of the impugned Act which prescribed
restrictions in regard to fixing of prices was declared to be an essential feature of the monopoly and
was subjected to the test of reasonableness. It has to be reasonable and in public interest.
Another important point settled by court in Akadasi's casewas that, when the State carries on any
trade, business or industry, it must carry it on either departmentally or through its officers appointed in
that behalf. But when it is inexpedient to do so, the State might employ the services of agents
provided they work on behalf of the State and not for themselves. Section 3 of the Act which provided
for engagement of agents was thus upheld. The court, however, ruled that in the context of Art. 19(6)
(ii) the word "agent" could not be extended to mean it in any commercial sense and that any
agreement entered into by a person with a Government which permitted him to carry on the trade
substantially on his own under which neither he was made accountable nor was the State responsible
for his act ion could not be upheld. Such an agreement would be wholly inconsistent with the
requirement of s. 3(1)(c) read with Art. 19(6)(ii).86
In Vrajlal Manilal & Co. v. State of MP ,87 the court reiterated the view expressed in Akadasi's case that
only those provisions of the law which were integrally and essentially connected with the creation of
monopoly were protected. The Court while upholding monopoly trade in Kendu leaves held the
provision for transportation of leaves once purchased or sold was not considered as an organic or
integral part of dealing with those leaves. Accordingly, restrictions on their transport under s. 5 had to
be put to the test of reasonableness under the first part of clause (6) of Art. 19.
Following the distinction between incidents of business which are essential and necessary and those
which are subsidiary or incidental, it was held in R.C. Cooper v. UOI 88 (known as Bank Nationalisation
case) that the impugned law which prohibited the named banks from carrying on the banking business
was a necessary incident of the business assumed by the Union and hence it was not liable to be
challenged under Art. 19(6)(ii) in so far as it affected the right to carry on business.
 727

It was held therein that the clause is a mere saving provision and its function is not to create a power
but to immunise from attack the exercise of legislative power falling within its ambit. The right of the
State to carry on trade or business to the exclusion of others does not arise by the said clause.
The amendment only says that if a valid law is made conferring a power on the State to carry on trade
or business to the exclusion, complete or partial of citizens, such a law would not infringe the
fundamental rights guaranteed under Art. 19(1)(g). It does not also say, that unless such a law is
made, every interference by the State with the trade of a citizen in exercise of a power under some
other law would necessarily be unreasonable restriction : such an interference will not have the
protection of the amended provision of the Constitution, but must be judged by the standard provided
by the first part of Art. 19(6); it would be valid if it is a reasonable restriction on the exercise of the
fundamental right.89
Where the State creates a monopoly for itself to which it is free to do so, the entire benefit arising
therefrom must enure to the benefit of the State and it should not be used as a cloak for conferring
private benefit upon a limited class of persons. Per MATHEW J. in Association of Registration Plates
v. Union of India - reported in (2004) 5 SCC 364 - in view of difference of opinion, the matter referred
to a larger bench - the decision of the larger bench is reported in. 90
It is that part of the law which relates to the carrying on of trade "to the exclusion of others" which is
protected and if a law providing for the carrying on of trade to the exclusion of others contains
provisions which can be said not to relate to such exclusion, they are not protected under sub-clause
(ii) of Art. 19(6). Provising a law which is not an integral part of it, but is subsidiary, incidental or helpful
to the operation of the monopoly did not fall under the clause, but had to be justified under the first
part of Art. 19(6). See Constitutional Law of India by H.M. Seervai - 4th Edition Volume I, page 929.
Also see Akadasi Padhan v. State of Orissa .91 Before a law can get immunity under Art. 19(6)(ii), the
court has to apply a kind of value judgment, separate the "essential" monopolistic provision from the
'non-essential' and test the validity of the latter under Art. 19(6) like that of any other ordinary law
restricting trade and commerce.92
The clause does not authorise the State to create a monopoly in favour of a third party, but has to
create monopoly only on its own favour.93 In case a monopoly is created in favour of a third party, it
has to satisfy the reasonableness under Art. 19(6). Where a monopoly was created in favour of certain
person, who claimed to be agents of State, but are free from Government control and the entire profit
only goes to them, it is a monopoly in favour of third party and not in favour of State. 94 See also New
Bihar Biri Leaves v. State of Bihar .95 A policy decision by the State Government to purchase certain
medicines for Government general hospitals and dispensaries only from public sector undertakings or
companies in which the State has substantial interest is valid. It was held that it does not create a
monopoly nor it was discriminatory. It was held that monopoly for the purpose of Art. 19(6)(ii) means a
total exclusion of others. Creation of a small captive market in favour of State owned undertakings out
of a larger market cannot be said as a monopoly.96 It was held that it is only a preference shown to
public sector undertakings.
If after ensuring competition in matter of rendering more efficient transport service, a public sector
undertaking is assured statutory preference "without any monopoly" there is no violation of Art s. 14 or
19(6). A public sector undertaking has to enter the arena like any other applicant, face competition and
come up to the level of other private operators intending to obtain stage carriage permit and then in
respect of the route in question claim preference. A "preference" in favour of undertaking would not be
denial of freedom to carry on trade, since it has to compete for a permit. When earnings of public
undertakings are to be utilised for public purposes, statutory preference is protected under Art. 19(6),
though it is not a monopoly.97
When prohibition is only with respect to exercise of the right referable only to a particular area of
activity or relating to particular matters, there is no total prohibition. Hence when total prohibition is
imposed on the slaughter of cow and her progeny, the ban is total with regard to slaughter of one
particular class of cattle and is not on total act ivity of butchers as they are left free to slaughter cattle
other than those specified in the Act.98
 728

In regard to motor transport, the law can provide for carrying on a service to the exclusion of all
citizens. It may exclude some of the citizens only; it may do business in the entire State in a specified
route or part thereof. The word "service" is wide enough to take in the general motor service, but also
the species of motor service. There are no limitations on the State's power to make laws conferring
monopoly on its service in respect of an area, and person or persons to be excluded. 99 In the case of
nationalisation of passenger bus routes after the expiry of permits of private operators, which creates
a State monopoly, there is no question of any acquisition of any property. The effect of nationalisation
on the properties or business of the operators is not such as cannot be regarded to be a reasonable
restriction in the interest of general public. In State of Karnataka v. Ranganatha Reddy ,100 it was
pointed out that taking over the transport service was undoubtedly for the common good of the people
and was not meant for augmenting the revenue of the State because the profits, if
1 Varadachari v. State of Madras, AIR 1952 Mad 764.

2 Gundling v. Chicago, (1900) 177 US 183.

3 Cooverjee B. Bharucha v. Excise Commissioner, (1954) SCA 256 : AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ
246.

4 Cooverjee B. Bharucha v. Excise Commissioner, (1954) SCA 256 : AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ
246.

5 Secy. to Govt., State of Tamil Nadu v. K. Vinayagamurthy, AIR 2002 SC 2968 : (2002) 7 SCC 104.

6 Guruviah v. State of Madras, AIR 1958 Mad 158 (169); Att. Gen. for Br. Columbia v. Kingcome Navigation Co., (1934)
AC 41.

7 CIT v. McDowell & Co. Ltd., (2009) 10 SCC 755 : (2009) 8 SCALE 266.

8 State of MP v. Lalit Jaggi, (2008) 10 SCC 607 : (2008) 12 SCALE 770.

9 Govt. of Maharashtra v. Deokar's Distillery, AIR 2003 SC 1216 : (2003) 5 SCC 669; Govt. of A.P. v. Anabeshahi Wine
and Distilleries (P) Ltd., (1988) 2 SCC 25 : AIR 1988 SC 771. See alsoState of Punjab v. Devans Modern Breweries
Ltd., (2004) 11 SCC 26.

10 Cf. Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232 (248, 259) : (1961) 1 SCR 728.

11 Har Shankar v. Dy. Excise Commr., AIR 1975 SC 1121 : (1975) 1 SCC 385 (para s. 56, 59); Amar v. Collector, AIR
1972 SC 1863 : (1972) 2 SCC 442.

12 Har Shankar v. Dy. Excise Commr., AIR 1975 SC 1121 : (1975) 1 SCC 385 (para s. 56, 59); Amar v. Collector, AIR
1972 SC 1863 : (1972) 2 SCC 442.

13 Har Shankar v. Dy. Excise Commr., AIR 1975 SC 1121 : (1975) 1 SCC 385 (para s. 56, 59); Amar v. Collector, AIR
1972 SC 1863 : (1972) 2 SCC 442.

14 Cooverjee B. Bharucha v. Excise Commissioner, (1954) SCA 256 : AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ
246.

15 Fernandez & Co. v. Dy. Chief Controller, AIR 1975 SC 1208 : (1975) 1 SCC 716; Dy. I&S Controller v. Manickchand,
AIR 1972 SC 935 : (1972) 3 SCC 324.

16 M.S.U. Mills v. State of Rajasthan, AIR 1954 Raj 179.

17 Maharashtra S.E.B. v. T.E.S.C, AIR 1990 SC 153 : (1989) 3 SCC 616 (para. 20) (CB); Tinsukia E.S.C v. State of
Assam, AIR 1990 SC 123 : (1989) 3 SCC 709 (para s. 43, 46) (CB); Vellore E.C. v. State of T.N., (1989) 4 SCC 138 :
AIR 1989 SC 1741 (paras. 22, 24) (CB).

18 Williamson v. Lee Optical, (1955) 348 US 483.

19 Graves v. Minnesota, (1926) 272 USS 425 (427),

20 Ferguson v. Shrupa, (1963) 372 US 726.

21 Nashville v. Alabama, (1889) 128 US 96; Cooley, Constitution Law of the United States, p. 300.
 729

22 Nashville v. Alabama, (1889) 128 US 96; Cooley, Constitution Law of the United States, p. 300.

23 (1955) 348 US 483 (supra).

24 Barsky v. Board of Regents, (1954) 347 US 442.

25 Semler v. Oregon State Board, (1935) 294 US 608.

26 Smith v. Alabama, (1888) 124 US 465.

27 Kotch v. Pilot Commrs., (1947) 330 US 552.

28 Law Students v. Wadmand, (1971) 401 US 154 (159-61).

29 Hawker v. New York, (1898) 170 US 189.

30 Humphery, In re, (1929) 227 NY 179.

31 Konigsberg v. State Bar, (1956) 353 US 252 (255).

32 Schware v. Board of Bar Examiners, (1956) 353 US 232 (239).

33 Taracharan v. Das Gupta, AIR 1954 Cal 138.

34 Sajal v. Stock Exchange, AIR 1991 Bom 30 (paras. 11-14).

35 Balwant v. State, AIR 1991 J&K 20 (para. 9).

36 Balwant v. State, AIR 1991 J&K 20 (para. 9).

37 Private Medical Practitioners Association v. State of A.P., AIR 2003 AP 1.

38 Sabir Ahmed v. Shad Muhammed, PLD 1995 SC 66.

39 2006 Edn., Vol. I, pp. 721-722.

40 PLD 1965 SC 527.

41 Arshad Mehmood v. Government of Punjab, PLD 1995 SC 66.

42 Haniraj L. Chulani (Dr.) v. Bar Council of Maharashtra and Goa, (1996) 3 SCC 342 : AIR 1996 SC 1708.

43 See alsoT.U. Khatri v. Institute of Company Secretaries of India, AIR 2002 Bombay 268.

44 Satish Kumar Sharma v. Bar Council of Himachal Pradesh, AIR 2001 SC 509 : (2001) 2 SCC 365.

45 Bar Council of India v. Aparna Basu Mallick, AIR 1994 SC 1334 : (1994) 2 SCC 102.

46 B.P. Sharma v. Union of India, (2003) 7 SCC 309 : AIR 2003 SC 3863.

47 Devata Prasad Singh Chaudhuri v. Hon'ble Chief Justice and Judges of Patna High Court, AIR 1962 SC 201 :
(1962) 3 SCR 305. See alsoH.S. Srinivasa Raghavachar v. State of Karnataka, (1987) 2 SCC 692 : AIR 1987 SC 1518;
Paradip Port Trust v. Workmen, AIR 1977 SC 36 : (1977) 2 SCC 339; Lingappa Pochamma Appelwar v. State of
Maharashtra, AIR 1985 SC 389 : (1985) 1 SCC 479.

48 N.K. Bajpayi v. UOI, AIR 2012 SC 1310 : (2012) 4 SCC 653.

49 Brij Mohan Lal v. UOI, (2012) 6 SCC 502 : AIR 2012 SC (Civil) 2196.

50 Sukumar Mukherjee v. State of WB, (1993) 3 SCC 723 : AIR 1993 SC 2335.

51 AIR 1996 SC 1708 : (1996) 3 SCC 345.

52 AIR 2012 SC 1310 : (2012) 4 SCC 653 (Supra).

53 Manjula B.R. (Smt.) v. Karnataka State Bar Council, AIR 2002 Kant 274.

54 Indian Council for Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 691 : (1995) 1 SCC 732.
 730

55 V. Sudheer v. Bar Council of India, AIR 1999 SC 1167 : (1999) 3 SCC 176.

56 Arshad Mehmood v. Government of Punjab, PLD 1995 SC 66.

57 2006 Edn, Vol. I, p. 722.

58 Smith v. State of Texas, (1914) 233 US 630; Konigsberg v. State Bar, (1956) 353 US 252 (255).

59 Smith v. State of Texas, (1914) 233 US 630; Konigsberg v. State Bar, (1956) 353 US 252 (255).

60 Talley v. California, (1960) 362 US 60.

61 C.S.S. Motor Services v. State of Madras, (1952) 2 MLJ 894 (907); Desai v. Dy. Chief Controller, AIR 1955 Mad 699;
Babul Chandra Mitra v. Patna High Court, AIR 1954 SC 524.

62 This aspect of su-cl. (i) of cl. (6) of Art. 19 of our Constitution does not appear to have been specifically adverted to
by the Supreme Court in Babul Chandra v. Judges of Patna High Court, (1954) SCA 395, and as a result, their
Lordships had some difficulty in upholding the reasonableness of s. 9(1) of the Bar Councils Act which provides that the
rules "shall not effect the power of the High Court to refuse admission to any person at its discretion".

63 Saghir Ahmad v. State of U.P., AIR 1954 SC 728 (729) : (1955) 1 SCR 707.

64 Webster, Dictionary.

65 Udai Singh Dagar v. UOI, AIR 2007 SC 2599 : (2007) 10 SCC 306.

66 Rajasthan Pradesh Vaidya Samiti v. UOI, AIR 2010 SC 2221 : (2010) 12 SCC 609.

67 Jones v. Portland, (1917) 245 US 217.

68 Cf. Cummings v. Missouri, (1867) 4 Wall, 277.

69 B.P. Sharma v. Union of India, (2003) 7 SCC 309 : AIR 2003 SC 3863.

70 Indian Council for Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 691 : (1995) 1 SCC 732.

71 Sajal v. Stock Exohange, AIR 1991 Bom 30 (para. 14).

72 Ajit Kumar v. State of Jharkhand, (2011) 11 SCC 458 : (2011) 3 LW 136.

73 Roshanlal Tandon v. UOI, AIR 1967 SC 1889 : (1968) 1 SCR 185; Dinesh Chandra Sangma v. State of Assam, AIR
1978 SC 17 : (1977) 4 SCC 441; UOI v. Arun Kumar Roy, AIR 1986 SC 737 : (1986) Lab IC 686(SC) : (1986) 1 SCC
675.

74 State of UP v. Babu Ram Upadhyaya, AIR 1961 SC 751 : (1961) 2 SCR 679.

75 Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SCC 101: 1991 (Supp-1) SCC 600 : (1991) 1 LLJ
395.

76 Tennessee Electric Power Co v. T.V.A., (1939) 306 US 118.

77 Green v. Frazier, (1920) US 504.

78 Standared Oil Co. v. Lincoin, (1927) 275 US 504.

79 California Automobile Assn. v. Maloney, (1951) 341 US 105 (109).

80 SeeUnion of India v. Ladulal Jain, AIR 1963 SC 1681 : (1964) 3 SCR 624.

81 Saghir Ahmad v. State of U.P., AIR 1954 SC 728 (729) : (1955) 1 SCR 707.

82 Utkal Contractor v. State of Orissa, (1987) Supp. SCC 751 : AIR 1988 SC 436 (para. 13). See alsoNew Bihar Beeri
Leaves v. State of Bihar, AIR 1981 SC 679 : (1981) 1 SCC 537.

83 This view of the Author, expressed in this Commentary, now finds support from Narayanappa v. State of Mysore,
AIR 1960 SC 1073 (1074) : (1960) 3 SCR 742; Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 (1053-4) : 1963
Supp (2) SCR 691.

84 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 Supp (2) SCR 691 (Supra).
 731

85 SeeMotilal v. State of UP, AIR 1951 All 257(FB) .

86 See alsoT. Mishra v. State of Orissa, AIR 1971 SC 733 : (1971) 1 SCC 153.

87 AIR 1970 SC 129 : (1969) 2 SCC 248 (supra).

88 AIR 1970 SC 1318 : (1970) 1 SCC 248.

89 Daya v. Joint Chief Controller of Imports and Exports, AIR 1962 SC 1796 : (1963) 2 SCR 73.

90 Association of Registration Plates v. Union of India, AIR 2005 SC 469 : (2005) 1 SCC 679.

91 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 (Supp. 2) SCR 691.

92 R.C. Cooper v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 248; Vrajlal Manilal & Co. v. State of M.P., AIR
1970 SC 129 : (1969) 2 SCC 248. See alsoAmiritsar Municipality v. State of Punjab, AIR 1969 SC 1100 : (1969) 1 SCC
475.

93 State of Rajasthan v. Mohan Lal Vyas, AIR 1971 SC 2068 : (1971) 3 SCC 705.

94 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 (Supp. 2) SCR 691.

95 New Bihar Biri Leaves v. State of Bihar, AIR 1981 SC 679 : (1981) 1 SCC 537.

96 Indian Drugs and Pharmaceuticals Ltd. v. Punjab Drugs Manufacturers' Association, AIR 1999 SC 1626 : (1999) 6
SCC 247.

97 Sher Singh v. Union of India, AIR 1984 SC 200 : (1984) 1 SCC 107.

98 State of Gujarat v. Mirzapur Moti Kureshi Kasaab Jamat, AIR 2006 SC 212 : (2005) 8 SCC 534.

99 J.Y. Kondala Rao v. A.P.S.R.T. Corpn., AIR 1961 SC 82 : (1961) 1 SCR 642; Sobhraj Odharmal v. State of
Rajasthan, AIR 1963 SC 640 : 1963 (Supp-1) 99.

100 AIR 1978 SC 215 : (1977) 4 SCC 471.

any, by the services would go to accomplish projects for the betterment of the community. It was
observed: "The Legislature thought that to prevent such misuse and to promote for the facilities to
transport passengers and to the general public, it is necessary to acquire vehicles, permits and all
rights, titles and interest of the contract carriage operators in or over the lands, building, workshop and
all stores, instruments, machinery, tools, plants, etc. as mentioned in sub-sec. (2) of s. (4) of the
Karnataka contract carriages (Acquisition) Act, 1976.1
State monopoly must be presumed to be reasonable and in the interest of general public. 2
No monopoly can be created in favour of State, i.e., Government in regard to electronic media nor it
can be monopolised by an individual body or organisation. The Government control in effect means
under the control of political party in power and such control is bound to colour and in some cases
ever distort the news, views and opinion. It was held that the broadcasting should be placed under the
control of a statutory corporation. It was held that broadcasting media is essentially different from the
press media or other means of communication.3
The State may enter into a trade or industry not only for reasons of administrative policy, e.g.,
manufacture of salt or alcohol; or for mitigating the evils arising from the competitive system, e.g., for
the better control of prices or quality of products; 4 or for the better administration of public utility
services but also simply for the making of profit just as a private trader would do, 5e.g., carrying on the
business of motor transport;6 or for ensuring Government control over the quality of the things
produced, e.g., in the matter of publishing text-books for schools. 7 No objection can be taken under
Art. 19(1)(g) if the State carries on a business either as a monopoly, complete or partial, to the
exclusion of all or some of the citizens only or in competition with any citizen. 8 Thus the right of citizen
to carry on trade has been subordinated to the right of the citizen to create a monopoly in its favour. 9
 732

Whether legislation is necessary for the carrying on of a trade or business by the State

39.  In 1951, the majority of the Allahabad High Court held, 10that even under the
Constitution as it then stood, the State had power to enter into a trade or business, by
executive act ion, i.e., without a legislation to authorise it. This view was affirmed by the
Supreme Court in the case of Ram Jawaya v. State of Punjab 11 where it held that the
carrying on of a trade by the State would be included within its 'executive power', so that
the State was competent to take up any business without a specific legislation
sanctioning such activity. Since then Art. 298 has been inserted in the Constitution in
1956 (see post), adopting the above view, and making it clear that the right to carry on
any trade or business is included in the 'executive power' of both the Union and a State.
It is, therefore,' clear that no legislation is necessary12 to enable the State to take up a
new business, e.g., the exploitation of mineral resources.13 In Ram Jawayya's case14 the
Supreme Court held that as the extent of the executive power of the Government is co-
terminus with legislative power, a Government's executive power extends to all those
matters which fall within the legislative sphere of the State and similarly, the executive
power of the Centre extends to the entire area of legislative power available to the
Centre. The Court said: "It may not be possible to frame an exhaustive definition of what
executive function means and implies. Ordinarily the executive power connotes the
residue of Governmental functions that remain after legislative and judicial functions are
taken away. ... The executive Government can never go against the provisions of the
Constitution or of any law, but it does not follow from this that in order to make the
executive to function there must be a law already in existence and that the powers of the
executive are limited merely to the carrying out of these laws". It was further observed:
"The executive function comprises both the determination of policy as well as carrying it
into execution. This evidently includes the initiation of legislation, the maintenance of
order, the promotion of social and economic welfare, the decision of foreign policy, in fact
carrying on or supervision of the general administration of the State. 15 Under Art. 298, the
Executive power of the Union and State shall extend to carrying on any trade and to the
acquisition, holding and disposal of property and making of contract for any purpose.
The State can carry on an executive function by making a law or without making a law.
However, the exercise of such powers and functions by the State is subject to the
provisions of the Constitution particularly the Preamble, the fundamental rights and
Directive Principles of State Policy.16
43.  But legislation would be necessary where the effect of this State entering
into the trade would lead to the exclusion, complete or partial, of citizens already in the
particular trade, within the meaning of Art. 19(6)(ii). It is clear that the words 'law relating
to' in Cl. (6) imply that there must be legal authority behind the action on the part of the
State, when it seeks to exclude the citizen whose fundamental right is guaranteed by Art.
19(1)(g), to carry on that trade, and which can be taken away only by a law falling under
Cl. (6). Specific legislation would, therefore, be necessary where the State seeks to
create a monopoly in its favour complete or partial17 or the Government seeks to have
some power which requires legislation under the Constitution and has not been
conferred by some existing law.18
Rules made under the statute must be treated for all purposes of construction or
obligation exactly as if they were in the Act and are to the same effect as if contained in
the Act and are to be judicially noticed for all purposes of construction or obligation. So,
statutory rules made pursuant to the power entrusted by Parliament are law made by
Parliament. Monopoly in favour of State can be created even by a subordinate
legislation. It is not correct to say that monopoly even in favour of Government can be
erected only by the plenary power and the Parliament not having chosen to exercise that
power, it is not open to the subordinate legislating body to create monopoly by making a
rule.19
 733

It is the constitutionality of such law authorising State monopoly, which has been dealt
with by amended Cl. (6)(ii).
27.  Such legislation for creating a State monopoly, by rescinding existing
contractual rights may be given retrospective operation. 20
15.  Where there is no law creating a monopoly, and the Government seeks to
do it by an administrative order or instruction, it may be struck down as an unreasonable
restriction upon the freedom of business guaranteed by Art. 19(1)(g). 21
'Exclusion, complete or partial, of citizens or otherwise'

40.  The protection offered by this sub-clause will be available whether the law
enabling the State to carry on a trade, business, industry or service ousts private citizens
partially or completely from such trade etc. Thus, the State may assume the monopoly of
the business of sale or purchase of forest produce, whether grown or land owned by the
Government or by private persons,22 even by rescinding existing contracts relating
thereto.23
44.  Control of the trade in forest produce by creating a State monopoly does not
involve any acquisition of the land.24
Article19(6)(ii) is couched in a very wide language. Under it the State can make a law for carrying on
business or service to the exclusion complete or partial of citizens or otherwise. There is no limitation
on State's power to make laws conferring monopoly on itself in respect of an area or person or
persons to be excluded.25 In view of Art. 19(6)(ii) the carrying on of any trade, business, industry or
service by the State would not be questionable on the ground that it infringes the right guaranteed
under Art. 19(1)(g) even though by law the State excludes the citizens wholly or partially from the
trade or business entered upon by the State. The State is, therefore, free to create a monopoly in
favour of itself.26
Limits to the power of the State to create monopoly in its own business
I. Article 19(6)(ii) imposes no limits upon the power of the State to create a monopoly in its favour. 27
The Amendment, thus, envisages the nationalisation28 of business or trade, whenever thought fit. In
Saghir Ahmad's case,29 where the law prior to the amendment was applicable, it was held that to
exclude existing traders or operators from a particular trade or business to the injury of, a number of
citizens was prima facie unreasonable and against the interests of the general public, but it was
observed that no such objection was available, after the amendment, to invalidate such exclusion.
Cl. (6) is to be interpreted liberally, so as to facilitate the introduction of a socialistic scheme of State
ownership or the nationalisation of the material resources of the country which underlies the clause. 30
Such schemes according to the amended clause, must be regarded as reasonable restrictions
imposed in the interests of the general public upon the individual's freedom of business, and their
constitutionality is no longer justiciable from these points of view. 31
II. At the same time, it has been held that--

86a)  It cannot be overlooked that Cl. (6) is in the nature of an exception to the
main provision in Cl. (1)(g) of Art. 19 and cannot, therefore, be given an unduly wide
construction. The exclusion from judicial review from the standpoints of reasonableness
and public interest which Cl. (6)(ii) postulates relates only to those provisions of a law
creating a State monopoly as are basically and essentially necessary for creating the
State monopoly and does not extend to any other provisions in the said law which may
not have any direct relation to the creation of the State monopoly but are only
'subsidiary32, incidental or helpful to the operation of the monopoly' 33 and these latter
provisions in the same statute, in order to be valid, must satisfy the test of the first part of
Cl. (6), so that they would be open to judicial review. 34 The above view was reiterated in
Rashbari Panda v. State of Orissa .35 These cases dealt with the validity of laws creating
monopolies in the State. Clause (6) is, however, not restricted to laws creating State
monopolies, and the rule enunciated in Akadasi's case applies to all laws relating to the
 734

carrying on by State of any trade, business or industry or service. The basic and
essential provisions of law which are integrally and essentially connected with the
carrying on trade by the State will not be exposed to challenge that they impair the
guarantee under Art. 19(1)(g), whether the citizens are excluded completely or partially
from carrying that trade or the trade is competitive. Imposition of restrictions which are
incidental or subsidiary to the carrying on of trade by the State whether to the exclusion
of the citizens or not must, however, satisfy the test of the main limb.
89b)  Clause (6)(ii) serves as an exception only to Cl. (1)(g) of Art. 19 and not to
any of the other sub-clauses of Art. 19(1). In the result, though a law creating a State
monopoly cannot be challenged on the ground that it imposes an unreasonable
restriction upon the freedom of business guaranteed by sub-cl. (g), it may still have to
satisfy the test of reasonableness, if it 'directly' affects another fundamental right, say,
the, freedom of property, but not so, if the impact on the other right is only incidental or
remote.36 In Express Newspapers (P) Ltd. v. UOI ,37 the Court said: "...in dealing with an
attack against the validity of a law creating State monopoly on the ground that its
provision impinging upon other fundamental rights guaranteed by Art. 19(1), it would be
necessary to decide what is the purpose of the Act and its direct effect. If the direct effect
of the Act is to impinge upon any other fundamental right guaranteed by Art. 19(1), it
would be necessary to decide what is the purpose of the Act and its direct effect. If the
direct effect of the Act is to impinge upon any other fundamental right guaranteed by Art.
19(1), its validity will have to be tested in the light of corresponding clauses in Art. 19, if
the effect on the said right is indirect or remote, then its validity cannot be successfully
challenged". According to learned author H.M. SEERVAI, though the above view is
clearly correct, it is difficult to see what the impact of Art. 19(6) on that right conferred by
Art. 19(1)(f) has to do with the meaning to be given to Art. 19(6) and why the
interpretation of Art. 19(6)(ii) is to be rejected, the learned Judge did not consider the
impact. Whether a law protected under Art. 19(6)(ii) directly violates a right conferred by
Art. 19(1)(a) to (f) and must therefore conform to the requirement of Art. 19(2) to (5) can
have no bearing on the meaning of Art. 19(6). 38
A legislation on monopoly and on freedom of trade and commerce will have to be
examined in the light of provisions of Art. 39(b) and (c) and the ratio in Minerva Mills v.
UOI .39 It was laid down in Minerva Mills case that there is harmony and balance
between the provisions of Part III and IV and this harmony and balance is a basic feature
of the Constitution.
58c)  There must be a nexus between the object in view viz., the substantive
social evil for which State monopoly is needed (e.g., a threat to national economy by
smuggling) and the measures adopted to remedy it.40
24d)  The object of State monopoly in a particular trade or business is public
interest. Where therefore the entire benefit arising from the business is not to ensure to
the State and the monopoly is used as a cloak for conferring private benefit for a limited
class of persons, the law creating the monopoly would not he protected by Art. 19(6)(ii),
but is liable to be struck down as imposing an unreasonable restriction upon the right of
business conferred upon every citizen by Art. 19(1)(g). 41
"The action of the Government if conceived and executed in the interest of the general public is not
open to judicial scrutiny. But it is not given to the Government thereby to create monopoly in favour of
third parties from their own monopoly."42
Thus, the impugned law of State monopoly would be invalid as an unreasonable restriction upon the
fundamental right guaranteed by Art. 19(1)(g)--

66i)  If the agents appointed by the Government for carrying on the trade are
authorised to carry on the trade on their own account. 43 In Akadasi Pradhan v. State of
Orissa (supra), court clearly held that when the State carries on any trade, business or
industry, it must carry it on either departmentally or through its officers appointed in that
 735

behalf. But where it is inexpedient to do so, the State may employ the services of agents
provided they work on behalf of the State and not for themselves. It was held that in the
context of Art.19(6)(ii), the word 'agent' could not be extended to mean it in any
commercial sense and that any agreement entered into by a person with a Government
which permitted to carry on the trade substantially on his own under which neither he
was made accountable nor was the State responsible for his action could not be upheld.
Such an agreement would be wholly invalid.
61ii)  If instead of throwing open the agency to the public in general, the
Government offers it to a body or limited class of persons who are offered concessional
rates and are allowed to earn large profits disproportionate to the services rendered by
them, thus depriving the State of the benefit which would otherwise have been earned
by it.44 In that case, court held: "The validity of a law by which the State assumed the
monopoly in trade in a given commodity has to be judged by the test whether the entire
benefit arising thereof is to enure to the State and the monopoly is not used as a cloak
for conferring private benefit upon a limited class of persons." In that case, the scheme
of selling Kendu leaves to select purchasers or of accepting tenders only from a
specified class of purchasers was declared as not integrally and essentially connected
with the creation of monopoly and hence was not protected under Art. 19(6)(ii). Court
said, the State has to satisfy the requirement of reasonable restriction under first part of
Art. 19(6).
Whether Protection of Cl. (6) of Art. 19 is available when the State carries on the trade through
agents

37.  There is nothing in Cl. (6)(ii) of Art. 19 to require that, in order to claim, the
protection of this clause, the trade or business must be carried on by the State itself,
departmentally, i.e., through public servants. There may be trades where it would be
expedient to have them to be carried on by agents. But: in such a case, it would be a
trade 'carried on by the State' only if the agent carries on the trade 'on behalf of the
State, and not on behalf of itself.45
40I.  Where, therefore, the agent is entitled to earn the profits and undertakes to
bear the losses and is not accountable to the State Government, Cl. (6)(ii) of Art. 19
cannot be invoked to shield such law from an attack on the ground of unreasonableness
of the restriction.46 Cl. (6)(ii) of Art. 19 is excluded even when it appears that "the trade or
business is not carried on solely on behalf of the State but at least partially on behalf, of
the individual concerned", e.g., where the agent keeps some profit to himself. 47 Whether
or not a person appointed by the State in this behalf is an 'agent' of the State in the
foregoing sense will have to be determined as a question of fact in each case, having
regard to--
35. the nature of the agreement,
35. the circumstances under which the agreement was made,
21. the terms of the agreement.48
In short, 'agency' in this context, must be understood not in the commercial
sense, but in the narrower sense as explained above, 49 so that it may be said that
the business carried on by the agent is being carried on by the State through the
agent.

25II.  Since any monopoly is a restriction on the freedom of every person to enter
into a trade, and such restriction would be unreasonable if created in favour of a person
other than the State, it follows that in order to claim the protection of Art. 19(6)(ii) when a
monopoly is created in favour of a third party, it must be shown that the profit from the
monopoly goes to the benefit of the public, i.e., the State.50
Cl. (6) (ii) of Art. 19 in relation to other Fundamental Rights
 736

Article 19(6) (ii) does not protect the law of State monopoly from the operation of fundamental rights
outside Art. 19:
Article 1451. Of course, since Art. 19 (6) (ii) permits the State to carry on a business in competition with
citizens, it is not open to a citizen to complain that the law which enables the State, with its vast
resources, to compete with private citizens in applying for transport permits for itself, offends Art. 14. 52
But where the ostensible object of State monopoly is to prevent unrestricted competition and
protection of the growers or workers from exploitation, but the State, in fact, sets up a class of
middlemen or engages the existing contractors to the exclusion of the general public, which exclusion
has no direct relation to the prevention of exploitation of the workers or to the object of securing the
full benefit from the trade to the State, the law would be struck down as discriminatory. 53
Nationalisation of particular trades

38.  Subsequent to the power to monopolise a trade conferred by the

amendment of Art. 19(6) in 1951 and the amendment of Art. 31(2) in 1955, Parliament
has passed several Act s for nationalisation of particular trades or industries, e.g., the
business of road transportation, by amending the Motor Vehicles Act , 1939 54in 1956
(inserting Ch. IV); a partial nationalisation of the business of banking, by enacting the
Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; the business
of general insurance, by enacting the General Insurance Business (Nationalisation) Act,
1972; the business of mining coking coal, by enacting the Coking Coal Mines
(Nationalisation) Act, 1972. Besides these, particular undertakings have been,
nationalised, e.g., the Indian Copper Corporation (Acquisition of Undertaking) Act, 1972;
the Asian Refractories Limited (Acquisition of Undertaking) Act, 1971; the Jayanti
Shipping Company (Acquisition of Shares) Act, 1971.
41I.  Of these various laws, the nationalisation of road transport through Ch. IVA
of the Motor Vehicles Act , brought the largest crop of cases before the Courts.
The Supreme Court, however, shielded Ch. IVA of this Act against attack under Art s.
1455, 19(1)(g); doctrines of natural justice56 or colourable legislation.57
26II.  As has been stated earlier (see ante), any controversy as to the
constitutionality of these Acts of nationalisation on the ground of contravention of
fundamental rights has been precluded by placing them in the 9th Sch. (items 94, 95, 99,
105), by the Constitution (39th Amendment) Act, 1975.
Of course, if any-particular decision of any authority, acting under any of these laws be
act uated by bias or mala fides, that may still be questioned,58 under Art. 226.
12V.  Even where an Act of nationalisation is not specifically included in the 9th
Sch., it would be immune from challenge as an unreasonable restriction upon the
freedom guaranteed by Art. 19(1)(g), because having been enacted in pursuance of the
Directive in Art. 39(b), it would be protected by Art. 31C. 59
Legislation by Parliament
The subject of legislative regulation of profession and business is so vast that it is not possible to
exhaust any treatment of all of them in this work.

87a)  Of the Act s passed by Parliament since 1950, regulating the various
professions may be mentioned60 -- Advocates Act s, 1961; Beedi & Cigar worker
(Conditions of Employment) Act, 1966; Cost & Works Accountants Act, 1959; Indian
Medical Council Act , 1956; Orphanages & Other Charitable Homes (Supervision &
Control) Act, 1960; Supreme Court Advocates (Practice in High Courts) Act, 1951;
Suppression of Immoral Traffic in Women & Girls Act, 1956 61; National Services Act,
1972.62
90b)  The Emblems and Names (Prevention of Improper Use) Act, 1950 prohibits
the use, for professional or commercial purposes, the use of certain names and
 737

emblems, which are of national importance, e.g., the Indian National Flag, Government
of India, Parliament of India, the Legislature of a State.
Whether the State can create a monopoly right in favour of a particular individual or individuals

41.  While the amendment of Cl. (6) of Art. 19 by the Constitution First
Amendment) Act, 1951, precludes the Court from questioning the reasonableness of a
law which creates a monopoly in favour of the State itself or of a corporation owned or
controlled by the State63 to carry on a trade to the exclusion of the citizens,--where such
a right is conferred on a particular individual or group of individuals to the exclusion of
others, the reasonableness of the restriction imposed in the latter case may be
questioned by the Court, for, the amendment of Cl. (6) of Art. 19 does not apply to such
a case.
In State of Rajasthan v. Mohan Lal ,64 it was reiterated that under no circumstances a
monopoly can be created in favour of a citizen. In that case, two pre-constitution
agreements were entered by the State granting monopoly rights to a citizen to carry on
business of plying buses in return for certain sum payable to the State in instalments.
Some amount was due when the Constitution came into force. The citizen pleaded that
monopoly contract has become void and unenforceable in view of Art. 19(1)(g). It was
held: "It is manifest that after the Constitution came into force, every citizen under Art.
19(1)(g) has the right of freedom of trade. A monopoly right however cannot be conferred
on a citizen under the Constitution nor can it be justified under the Constitution. If a State
obtained monopoly, it would be defensible as a reasonable restriction, but if the State
conferred any monopoly right on a citizen, it would be indefensible and impermissible".
The agreement was declared to be incapable of performance under the law of the land.
45.  In such a case, the reasonableness has to be determined with reference to
the circumstances relating to the trade or business in question. Thus,--
36. There are certain trades which are so inherently dangerous (e.g., the
business relating to intoxicating liquor65 ) that the State cannot, without danger to
the society, allow normal trading by all persons. In such cases the creation of a
monopoly right in favour of an individual or individuals for the purpose of effective
State control might be reasonable.66
36. Canalisation of a particular business in favour of specified individuals has
also been upheld as 'reasonable', where vital interests of the community are
concerned, e.g., the distribution of essential commodities, when affected by
blackmarketing, profiteering, hoarding and the like; 67 or if the business affects the
economy of the country.68
22. But where there is nothing innocuous in the nature of the business itself,
e.g., the business of selling vegetables,69 the prohibition of normal trading by
persons and the granting of a monopoly right to a particular individual cannot be
held to be reasonable.70

28.  Even though a monopoly is not granted to any particular trader and there is
no express prohibition against the carrying on of the business by anybody, there is an
unreasonable restriction on the freedom of business if the effect of a Municipal byelaw,
charging a licence fee, is to bring about a total stoppage of business in the commercial
sense.71
Article 19(1)(g) and laws of taxation
Taxing statutes are not beyond the pale constitutional limitation. A law providing for levy and collection
of tax is very much a law within the meaning of Part III and it must stand the test laid down by Art. 13. 72
Raising revenue being the main purpose of taxation for public service, it is held that it is a reasonable
restriction in public interest. The validity of tax law could be challenged if it directly or indirectly
imposes a restriction on the freedom of trade. But the court emphasised that it must exercise the
power with circumspection and caution bearing in mind that the power of State to levy tax for the
 738

purpose of governance and for carrying out its welfare activities was a necessary attribute of
sovereignty and in that sense it was a power of paramount character. 73

39.  Where a tax is imposed upon a trade or business without legal authority 74 or
in contravention of a limitation imposed by the Constitution (e.g., Art. 286),75 it constitutes
a patent infringement of the right guaranteed by Art. 19(1)(g).
42I.  The early view suggested in Ramjilal v. I.T.O .76 that the taxing power under
our Constitution is an independent power embodied in Part XII, so that Part III could not
be attracted to it in any case, has been dispelled by a number of later decisions. 77
27II.  Hence, the reasonableneess of a taxing statute may be challenged not only
where it does not lay down any procedure for assessment or recovery of the tax 78 but
also where the procedure laid down is not reasonable. 79
13V.  Mere excessiveness of a tax80 or reduction of profits81 does not render it an
unreasonable restriction on the freedom of business; 82 but it may be so if it seeks to
confiscate property in the name of taxation.83 In Shaik Madar v. State of AP ,84 enhanced
levy on passenger under AP Motor Vehicles Taxation Act was challenged on the ground
that it was only a revenue yielding measure and not compensatory in nature. On the
basis of facts and figures presented to the court, it decided that levy was not for
augmenting revenue. The expenditure was more than collection and hence enhanced
tax was held valid.
7.  Provision for arrest and detention of a wilful defaulter or for prevention of
evasion of a tax would not be unreasonable in the case of payment of public revenue. 85
5I.  So long as a sales tax is not confiscatory and does not change its character
as a tax on the transaction of sale, as distinguished from a tax on the income of a dealer,
it cannot be said to constitute an unreasonable restriction in contravention of Art. 19(1)
(g) on the mere ground that the dealer is unable to pass it on to the purchaser or
consumer.86
2II.  Retrospective operation of a taxing statute is not necessarily unreasonable, 87
but it may be so in particular circumstances.88 The test of the length of time covered by
retrospective operation could not by itself necessarily be a decisive factor to hold it
invalid.89 In testing whether retrospective imposition of a tax operates so harshly as to
violate the fundamental right under Art. 19(1)(g), the factors considered relevant include
the context in which retroactivity was contemplated such as whether the law is one of
validation of a taxing statute struck down by court for certain defects,t he period of
retrospectivity and the degree and extent of any unforeseen or unforeseeable financial
burden imposed for the past period, etc.90
Articles 19 (1)(a) and (g)
The same activity or different aspects of the same act ivity may be covered by more than one of the
sub-clauses of Art. 19(1).
This has been illustrated by the right relating to advertisement. As the Supreme Court has held, 91 if the
object of the advertisement is to propagate social, political, economic or literary ideas, unconnected
with any commercial purpose, the right to advertise is covered by the freedom of expression
guaranteed by Art. 19(l)(a). If, however, the advertisement relates to commercial goods and the object
of the advertisement is to promote their sale, the right to advertise falls under Art. 19(l)(g) and not Art.
19(l)(a).92
Newspaper industry enjoys two of the fundamental rights, namely, the freedom of speech and
expression guaranteed under Art. 19(1)(a) and the freedom to engage in any profession, occupation,
trade industry, business guaranteed under Art. 19(1)(g); the first because it is concerned with the field
of expression and communication and the second because communication has become an
occupation or profession and because there is invasion of the trade, business and industry into that
field where freedom of expression is being exercised. While there can be no tax on the right to
exercise freedom of expression, tax is leviable under Art. 19(1)(g). Hence tax is leviable on newspaper
industry. But when such tax transgresses into the field of expression and stifles that freedom, it
 739

becomes unconstitutional. As long as it is within reasonable limits and does not impede freedom of
expression, it will not be contravening the limitation of Art. 19(2). The delicate task of determining
when it crosses the area of profession, occupation, trade, business or industry, into the area of
freedom of expression, and interfere with that freedom is entrusted to the courts. 93
Articles 19(1)(g), 301 and 304(b)

42.  An individual who is affected by the violation of Art. 301 or 304 can also
complain of an infringement of Art. 19(l)(g) and bring an application under Art. 32, even
though Art s. 301, 304 are not included in Part III as fundamental rights. 94 The reason is
that a violation of Art. 301 or 304 ordinarily constitutes an infringement also of the
fundamental right to trade which is guaranteed by Art. 19(l)(g). 95
Article 19(1)(g) and Art. 301 are two facets of the same thing - the freedom of trade.
Article 19(1)(g) looks at the matter from the point of view of the individual citizen and
protects their individual rights to carry on their trade or business. Article 301 looks at the
matter from the point of view of the country's trade and commerce as a whole as distinct
from individual interest of the citizen and it relates to trade, commerce or intercourse
both with and within the States.96 It was held therein that when Art. 19(1)(g) guarantees
or Art. 301 declares the freedom of trade, they describe human activities in a specific
aspect. They single out attributes which the act or transaction may wear and make the
freedom which they confer depend upon those attributes. Article 19(1)(g) in very general
terms guarantees to all citizens the right to carry on any occupation, trade or business
and clause (6) of Art. 19 provides legislation which may be in the interest of general
public, impose reasonable restrictions on the exercise of right conferred by Art. 19(1)(g).
Article 301 declares that trade, commerce and intercourse throughout the territory of
India shall be free, but makes such declaration subject to the provisions of Art s. 302-305
which permit the imposition of reasonable restrictions by Parliament and the State
Legislatures. According to the learned author, the above view is hardly tenable. Article
301 is based on s. 92 of Australian Constitution which has been held to comprise right of
individuals as well97 and the same should be the position in India. The difference
between Arts. 19(1)(g) and 301, it has been said that Art. 301 could be invoked only
when an individual is prevented from sending his goods across the State or from one
point to another in the same State while Art. 19(1)(g) can be invoked when the complaint
is with regard to the right of an individual to carry on business unrelated to or irrespective
of movement of goods i.e., while Art. 301 contemplates the right of trade in motion, Art.
19(1)(g) secures the right at rest.98
46.  But a tax which is compensatory in character cannot be held to constitute a
retriction.99
29.  A noxious trade, such as that in intoxicating liquor is not protected either by
Art. 19(l)(g) or by Art. 301,100 just like gambling,101 or dealings in lottery tickets.102
Exclusion of Article 19
None of the Clauses of Art. 19 can be invoked where the following Articles apply:
Articles 31A;10331B;10431C.105
1 See alsoState of Tamil Nadu v. L. Abu Kavur, AIR 1984 SC 326 : (1984) 1 SCC 515.

2 T. Govindaraja Mudaliar v. State of Tamil Nadu, AIR 1973 SC 974 : (1973) 1 SCC 336.

3 Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, (1995) 2 SCC 161.

4 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 (1053-4) : 1963 Supp (2) SCR 691.

5 Utkal Contractor v. State of Orissa, (1987) Supp. SCC 751 : AIR 1988 SC 436 (para. 13).
 740

6 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 (1053-4) : 1963 Supp (2) SCR 691; Kondala Rao v.
A.P.S.R.T.C., AIR 1961 SC 82 : (1961) 1 SCR 642; Parbhani Transport Society v. R.T.A., AIR 1960 SC 801 (806) :
(1960) 3 SCR 177.

7 Ram Jawaya v. State of Punjab, (1955) 2 SCR 225 : AIR 1955 SC 549. [In this case Cl. (6)(ii) was not adverted to
because the Court proceeded upon the footing that the Petitioner had no fundamental right, under Art. 19(1)(g), to have
his books prescribed as text-books. by the Government].

8 P.T. Society v. RTA, AIR 1960 SC 801 : (1960) 3 SCR 177.

9 Ramachandra v. State of Orissa, AIR 1956 SC 298 : (1956) SCR 28; J.Y. Kondala Rao v. APSRTC, AIR 1961 SC 82 :
(1961) 1 SCR 642.

10 Motilal v. State of U.P., AIR 1951 All 257.

11 Ram Jawaya v. State of Punjab, (1955) 2 SCR 225 : AIR 1955 SC 549. [In this case Cl. (6)(ii) was not adverted to
because the Court proceeded upon the footing that the Petitioner had no fundamental right, under Art. 19(1)(g), to have
his books prescribed as text-books. by the Government]; Narayanappa v. State of Mysore, (1960) 3 SCR 742 (749),
752 : AIR 1960 SC 1073.

12 Narayanappa v. State of Mysore, (1960) 3 SCR 742 (749), 752 : AIR 1960 SC 1073.

13 Kotiah v. State of A.P., AIR 1959 AP 485.

14 Ram Jawaya v. State of Punjab, (1955) 2 SCR 225 : AIR 1955 SC 549 (supra).

15 See also Naraindas Indurkhlya v. State of MP, AIR 1974 SC 1232 : (1974) 4 SCC 788.

16 Eurasian Equipment and Chemicals Ltd. v. State of WB, (1975) 1 SCC 70 : (1975) 2 SCR 674; Mahabir Auto Stores
v. IOC, (1990) 3 SCC 752 : AIR 1990 SC 1031; LIC of India v. Consumer Education & Research Centre, AIR 1995 SC
1811 : (1995) 3 SCC 482.

17 Kondala Rao v. A.P.S.R.T.C., AIR 1961 SC 82: (1961) 1 SCR 642; Narayanappa v. State of Mysore, (1960) 3 SCR
742 (749), 752 : AIR 1960 SC 1073.

18 Narayanappa v. State of Mysore, (1960) 3 SCR 742 (749), 752 : AIR 1960 SC 1073.

19 State of Tamil Nadu v. Hind Stone, AIR 1981 SC 711 : (1981) 2 SCC 205 : (1981) 2 SCR 742.

20 Greetz v. Frazier, (1920) US 504; Utkal Contractors v. State of Orissa, (1987) Supp SCC 751 : AIR 1987 SC 2310
(paras. 13, 15, 16, 18); Orient Paper v. State of Orissa, (1991) 1 UJSC 75 (paras. 13, 21, 31).

21 Punjab Drug Asson. v, State of Punjab, A, 1989 P&H 117.

22 Utkal Contractors v. State of Orissa, (1987) Supp SCC 751 : AIR 1987 SC 2310 (paras. 13, 15, 16, 18); Orient
Paper v. State of Orissa, (1991) 1 UJSC 75 : AIR 1991 SC 672 : 1991 (Supp-1) SCC 81 : 1990 (Supp-2) SCR 480
(paras. 13, 21, 31).

23 Utkal Contractors v. State of Orissa, (1987) Supp SCC 751 : AIR 1987 SC 2310 (paras. 13, 15, 16, 18); Orient
Paper v. State of Orissa, (1991) 1 UJSC 75 : AIR 1991 SC 672 : 1991 (Supp-1) SCC 81 : 1990 (Supp-2) SCR 480
(paras. 13, 21, 31).

24 Utkal Contractors v. State of Orissa, (1987) Supp SCC 751 : AIR 1987 SC 2310 (paras. 13, 15, 16, 18); Orient
Paper v. State of Orissa, (1991) 1 UJSC 75 : AIR 1991 SC 672 : 1991 (Supp-1) SCC 81 : 1990 (Supp-2) SCR 480
(paras. 13, 21, 31).

25 J.Y. Kondalrao v. APSRTC, AIR 1961 SC 82 : (1961) 1 SCR 642.

26 State of Rajasthan v. Mohan Lal Vyas, AIR 1971 SC 2068 : (1971) 3 SCC 705; Association of Registration of Plates
v. UOI, AIR 2005 SC 1354 : (2004) 5 SCC 364.

27 Utkal Contractors v. State of Orissa, (1987) Supp SCC 751 : AIR 1987 SC 2310 (paras. 13, 15, 16, 18); Orient
Paper v. State of Orissa, (1991) 1 UJSC 75 : AIR 1991 SC 672 : 1991 (Supp-1) SCC 81 : 1990 (Supp-2) SCR 480
(paras. 13, 21, 31).

28 Ram Chandra v. State of Orissa, AIR 1956 Ori 298.

29 Saghir Ahmad v. State of U.P., AIR 1954 SC 728 (729).

 741

30 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 (1053-4) : 1963 Supp (2) SCR 691.

31 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 (1053-4) : 1963 Supp (2) SCR 691.

32 Rashbehari v. State of Orissa, AIR 1969 SC 1081 (1088) : (1969) 1 SCC 414.

33 It is respectfully submitted that this interpretation is open to the following criticisms:(i) It ignores the doctrine of
'incidental and ancillary powers' which lies at the foundation of constitutional jurisprudence, namely, that where a power
is conceded to a Legislature all powers which are ancillary thereto and are necessary to effectually exercise that power
must also be conceded [vide United Prov. v. Atiqa, AIR 1941 FC 16(26); State of Bombay v. Narotamadas, AIR 1951
SC 69 : 1951 SCR 51, and other cases cited at this Commentary].(ii) It would also nullify the object of the amended Cl.
(6) in as much as it will keep the Legislature in enacting a law of nationalisation, constantly in suspense as to whether
any of the provisions of the statute is liable to be placed under the test of reasonableness by the Court, holding it to be
merely ancillary. Thus, in the instant case, the Court held that though the fixation of a purchase price for raw materials
may be essential for the functioning of a State monopoly in respect of manufactured goods out of those raw products in
particular cases, in the facts of the case before the Court, it was not essential for the functioning of the State monopoly
as to the trade of Tendu leaves though, on the merits, the Court up held it as a reasonable restriction.The foregoing
view of the Author, expressed in this Commentary, has since been acted upon by the Government by placing a number
of nationalisation Act s in the 9th Sch. [e.g., items 94, 95, 99, 105, inserted by the 39th Amendment Act, 1975].

34 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 (1053-4) : 1963 Supp (2) SCR 691.

35 AIR 1969 SC 1981 : (1969) 1 SCC 414 : (1969) 3 SCR 374; Vrajlal Manilal & Co. v. State of MP, AIR 1970 SC 129 :
(1969) 2 SCC 248 : (1970) 1 SCR 400; Municipal 'Committee, Amritsar v. State of Punjab, AIR 1969 SC 1100 : (1969) 1
SCC 475.

36 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 (1053-4) : 1963 Supp (2) SCR 691; Of course, the right to
property has ceased to be a fundamental right since the 44th Amendment Act, 1978 which omitted sub-cl. (f) from Art.
19(1). But the principle may be applicable if some other fundamental right is directly, affected.

37 AIR 1958 SC 578 : (1959) SCR 12.

38 H.M. Seervai, Constitutional Law of India, 4th Edn., Vol. I, p. 930.

39 (1980) 3 SCC 625 : AIR 1980 1789.

40 Orient Paper v. State of Orissa, (1991) 1 UJSC 75 (paras. 30, 33).

41 Rashbehari v. State of Orissa, AIR 1969 SC 1081 (1088) : (1969) 1 SCC 414.

42 Rashbehari v. State of Orissa, AIR 1969 SC 1081 (1088) : (1969) 1 SCC 414.

43 Orient Paper v. State of Orissa, (1991) 1 UJSC 75 (paras. 30, 33)

44 Rashbehari v. State of Orissa, AIR 1969 SC 1081 (1088) : (1969) 1 SCC 414.

45 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 Supp (2) SCR 691; Utkal Contractors v. State of
Orissa, (1987) Supp. SCC 751 : AIR 1987 SC 2310 (para. 14).

46 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 Supp (2) SCR 691; Utkal Contractors v. State of
Orissa, (1987) Supp. SCC 751 : AIR 1987 SC 2310 (para. 14).

47 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 Supp (2) SCR 691; Utkal Contractors v. State of
Orissa, (1987) Supp. SCC 751 : AIR 1987 SC 2310 (para. 14).

48 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 Supp (2) SCR 691; Utkal Contractors v. State of
Orissa, (1987) Supp. SCC 751 : AIR 1987 SC 2310 (para. 14).

49 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047 : 1963 Supp (2) SCR 691; Utkal Contractors v. State of
Orissa, (1987) Supp. SCC 751 : AIR 1987 SC 2310 (para. 14).

50 New Bihar Bidi Leaves Co. v. State of Bihar AIR 1981 SC 679 : (1981) 1 SCC 537.

51 Since Art. 31, (2) has been repealed in 1978, no question in relation thereto arises any longer.

52 Parbhani Transport Co-operative Society v. R.T.A., AIR 1960 SC 801 (806) : (1960) 3 SCR 177.

53 Rashbehari v. State of Orissa, AIR 1969 SC 1081 (1088) : (1969) 1 SCC 414.
 742

54 Now the Motor Vehicles Act , 1939 repealed by the Motor Vehicles Act , 1988.

55 Satyanarayanamurthy v. APSRTC, (1961) 1 SCR 642 (650-3) : AIR 1961 SC 82; Ram Nath v. State of Rajasthan,
AIR 1967 SC 603 : (1963) 2 SCR 152.

56 Sher Singh v. Union of India, AIR 1984 SC 200 : (1984) 1 SCC 107; Narayanappa v. State of Mysore, AIR 1960 SC
1073 (1079) : (1960) 3 SCR 742; Kalyan Singh v. State of U.P., AIR 1962 SC 1183 : 1962 Supp (2) SCR 76;
Raghunatha v. S.T.A., AIR 1971 SC 1662 (1666) : (1970) 1 SCC 541; Govindaraja v. State of T.N., (1973) 1 SCC 366 :
AIR 1973 SC 246.

57 Sher Singh v. Union of India, AIR 1984 SC 200 : (1984) 1 SCC 107.

58 Narayanappa v. State of Mysore, AIR 1960 SC 1073 (1079) : (1960) 3 SCR 742; Kalyan Singh v. State of U.P., AIR
1962 SC 1183 : 1962 Supp (2) SCR 76; Raghunatha v. S.T.A., AIR 1971 SC 1662 (1666) : (1970) 1 SCC 541;
Govindaraja v. State of T.N., (1973) 1 SCC 366 : AIR 1973 SC 246.

59 Cf. State of T.N. v. Kavur, AIR 1984 SC 326 : (1984) 1 SCR 725; Pilani Investments & Industries Crop. Ltd. v. Union
of India, AIR 1988 MP 181.

60 Seventh Schedule, III (26).

61 Now Immoral Traffic (Prevention) Act, 1956.

62 This Act imposes an obligation, on pain of penalty, upon persons below the age of thirty who have obtained any
degree in medicine or surgery or any branch of engineering or technology, to register themselves and to render
'national service' which includes the defence of India, civil defence or such social service as may be required by the
Government of India.

63 Daruka v. Union of India, AIR 1973 SC 2711 : (1973) 2 SCC 617.

64 AIR 1971 SC 2068 : (1971) 3 SCC 705.

65 Chakravarty v. Collettor of Excise. (1972) 11 SCWR 430 (443-44); State of Orissa v. Harinarayan, (1972) 1 SCWR.
832 (842-43).

66 Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246.

67 Daruka v. Union of India, AIR 1973 SC 2711 : (1973) 2 SCC 617; Chakravarty v. Collettor of Excise. (1972) 11
SCWR, 430 (443-44); State of Orissa v. Harinarayan, (1972) 1 SCWR 832 (842-43); Cooverjee B. Bharucha v. Excise
Commissioner, AIR 1954 SC 220 : 1954 SCR 873 : 1954 SCJ 246; Meenakshi Mills v. Union of India, AIR 1974 SC 366
(386); Bhatnagars v. Union of India, (1957) SCR 701 : AIR 1957 SC 478.

68 State of Rajasthan v. Vyas, (1971) UJSC 222 (223); Harichand v. Mizo Dt. Council, (1967) 1 SCR 1012 : AIR 1967
SC 829.

69 Rashid Ahmed v. Municipal Board, (1950) SCR 568 : 1950 SCR 566 : AIR 1950 SC 163.

70 State of Rajasthan v. Vyas, (1971) UJSC 222 (223); Harichand v. Mizo Dt. Council, (1967) 1 SCR 1012 : AIR 1967
SC 829.

71 Yasin v. Town Area Committee, AIR 1952 SC 115 : 1952 SCR 572.

72 Balaji v. ITO, AIR 1962 SC 123 : (1962) 2 SCR 983.

73 Kherbari Tea Co. v. State of Assam, AIR 1964 SC 925 : (1964) 5 SCR 975. See alsoM.L. Aggarwal & Sons v. Asst.
Commissioner, AIR 1971 All 1(FB) .

74 Kailash Nath v. State of U.P., AIR 1957 SC 790 (792) : (1957) 8 STC 358; State of Kerala v. Joseph, AIR 1958 SC
296 : 1958 SCJ 614; Yasin v. Town Area Committee, 1952 SCR 572 : AIR 1952 SC 115.

75 Himmatlal v. State of M.P., (1954) SCR 1122 : AIR 1954 SC 403.

76 Ramjilal v. I.T.O., (1951) SCR 127 (137) : AIR 1951 SC 97.

77 Cf. Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232 (243, 259) : (1961) 1 SCR 809; Empire, Industries v.
Union of India, AIR 1986 SC 662 : (1985) 3 SCC 314 (para. 49); Kunnathat v. State of Kerala, AIR 1961 SC 552 :
(1961) 3 SCR 77; Balaji v. I.T.O., AIR 1962 SC 123 (128) : (1962) 2 SCR 983, Jagannath v. Union of India, AIR 1962
SC 148 : (1962) 2 SCR 118.
 743

78 Kunnathat v. State of Kerala, AIR 1961 SC 552 : (1961) 3 SCR 77; Balaji v. I.T.O., AIR 1962 SC 123 (128) : (1962) 2
SCR 983; Jagannath v. Union of India, AIR 1962 SC 148 : (1962) 2 SCR 118.

79 Cf. Ram Bachan v. State of Bihar, AIR 1967 SC 1404 (1408) : (1967) 3 SCR 1.

80 Madar v. State of A.P., 1972 SC 1804 (1807, 1809) : (1972) 4 SCC 635; Prag Oil Mills v. Union of India, AIR 1978
SC 1296 : (1978) 3 SCC 459; Malwa Bus Service v. State of Punjab, AIR 1983 SC 634 : (1983) 3 SCC 237 (para. 22).
See alsoJagannath v. UOI, AIR 1962 SC 148 : (1962) 2 SCR 118; Corporation of Calcutta v. Liberty Cinema, AIR 1965
SC 1107 : (1965) 2 SCR 477. But seeChandrakant v. Jasjit Singh, AIR 1962 SC 204.

81 Nazeria Motor Service v. State of A.P., AIR 1970 SC 1864 : (1969) 2 SCC 576.

82 Madar v. State of A.P., 1972 SC 1804 (1807, 1809) : (1972) 4 SCC 635; Prag Oil Mills v. Union of India, AIR 1978
SC 1296 : (1978) 3 SCC 459; Malwa Bus Service v. State of Punjab, AIR 1983 SC 634 : (1983) 3 SCC 237 (para. 22).
See alsoJagannath v. UOI, AIR 1962 SC 148 : (1962) 2 SCR 118; Corporation of Calcutta v. Liberty Cinema, AIR 1965
SC 1107 : (1965) 2 SCR 477. But seeChandrakant v. Jasjit Singh, AIR 1962 SC 204.

83 Kodar v. State of Kerala, AIR 1974 SC 2272 : (1974) 4 SCC 422 (para. 10).

84 AIR 1970 SC 1864 : (1969) 2 SCC 576.

85 Ram v. State of U.P., AIR 1984 SC 1213 : (1984) 1 SCC 179 (paras. 13-14); Collector v. Ebrahim, AIR 1957 SC 688
(691-92) : 1957 SCR 970; Sodhi Transport v. State of U.P., AIR 1986 SC 1099 : (1986) 2 SCC 486 (para. 9).

86 Kodar v. State of Kerala, AIR 1974 SC 2272 : (1974) 4 SCC 422 (para. 10); Ram v. State of U.P., AIR 1984 SC 1213
: (1984) 1 SCC 179 (paras. 13-14); Collector v. Ebrahim, AIR 1957 SC 688 (691-92) : 1957 SCR 970; Sodhi Transport
v. State of U.P., AIR 1986 SC 1099 : (1986) 2 SCC 486 (para. 9); Abdul Khader v. State of T.N., AIR 1985 SC 12 : 1984
Supp SCC 563 (para. 11); Shiv Dutt v. union of India, AIR 1984 SC 1194 : (1983) 3 SCC 529 (para.33); J.K. Mills v.
State of U.P., 1961 SC 1534 (1539) : (1962) 2 SCR 1; Konduri v. State of Hyderabad, AIR 1958 SC 756 : (1985) 9 STC
397 (para. 9).

87 Cf. Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232 (243, 259) : (1961) 1 SCR 809; Empire, Industries v.
Union of India, AIR 1986 SC 662 : (1985) 3 SCC 314 (para. 49).

88 Krishnamurthi v. State of Madras, AIR 1972 SC 2455 (2460) : (1973) 1 SCC 75; Jawaharmal v. State, (1966) 1 SCR
890 (905) : AIR 1966 SC 764; Asstt. Commr. of Urban Land Tax v. Buckingham & Carnatic Co., AIR 1970 SC 169 :
(1969) 2 SCC 55; Ramakrishna v. State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897; Epari v. State of Orissa, AIR
1964 SC 1581 : (1964) 7 SCR 185.

89 Rai Ramakrishnan v. State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897; see alsoKrishnamurthy & Co. v. State
of Madras, AIR 1972 SC 2455 : (1973) 2 SCR 54.

90 Ujagar Prints v. UOI, AIR 1989 SC 516 : (1989) 3 SCC 488.

91 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (563) : (1960) 2 SCC 671.

92 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (563) : (1960) 2 SCC 671.

93 Express Newspaper (P) Ltd. v. UOI, AIR 1986 SC 515 : (1985) 1 SCC 641; see alsoA. Suresh v. State of Tamil
Nadu, AIR 1997 SC 1889 : (1997) 1 SCC 319; Secretary, Ministry of Information & Broadcasting, Govt. of India v.
Cricket Association of West Bengal, AIR 1995 SC 1236 : (1995) 2 SCC 161.

94 Hussain v. State of Bombay, AIR 1962 SC 97 : (1962) 2 SCR 659; Syed Ahmed v. State of Mysore, AIR 1975 SC
1443 : (1975) 2 SCC 131.

95 Hussain v. State of Bombay, AIR 1962 SC 97 : (1962) 2 SCR 659; Syed Ahmed v. State of Mysore, AIR 1975 SC
1443 : (1975) 2 SCC 131.

96 State of Bombay v. RMD Chamarbaugwala, AIR 1957 SC 699 : (1957) SCR 874.

97 Commonwealth of Australia v. Bank of New South Wales, (1950) AC 235.

98 Bapubhai v. State of Maharashtra, AIR 1956 Bombay 21; Usman v. State, AIR 1958 MP 33;Motilal v. State of UP,
AIR 1951 Allahabad 258; Saghir v. State of UP, AIR 1954 All 257 and AIR 1954 SC 728 : (1955) 1 SCR 707; Hotel
Assn. of India v. UOI , (unreported - a decision dated 12-1-2006 of Delhi High Court in Writ Petition (Civil
No.4692/1999). See M.P. Jain,Constitutional Law of India, 6th Edn., Vol. I at pp.1058-1059). (For further discussion,
see Arts. 301-304.

99 G.S. Mills v. Kamgar Sabha, AIR 1961 SC 1016 : (1961) 3 SCR 342.
 744

100 Sat Pal v. Lt. Governor, AIR 1979 SC 1550 (1557) : (1979) 4 SCC 232.

101 State of Bombay v. R.M.D.C., AIR 1957 SC 699 : 1957 SCR 874 (para. 42).

102 Anraj v. Govt. of T.N., AIR 1986 (63).

103 Thenappa v. State of T.N., AIR 1986 SC 1117 : (1986) 2 SCC 275 (para s. 10, 12); Union Territory v. Lakshmibai,
AIR 1990 SC 1771 : (1990) 4 SCC 102 (para. 14).

104 Ram v. Union of India, AIR 1985 SC 1178 : (1984) 1 SCC 515 (para s. 10-13).

105 State of T.N. v. Allen, AIR 1984 SC 326 (paras. 14-16); Elizabeth v. State of Kerala, AIR 1991 Ker 162 (para. 9).