State of Madras v. V. G. Row

Sastri C. J.

It will be seen that while old section 16 expressly conferred on the Provincial Government power to declare associations unlawful if, ·in its opinion, · there existed cert.ain ~pecified grounds in relation to them, those grolinds are now incorporated in section 15(2) (b) as amended, and the reference to the "opinion" of the Government is . dropped. This led · to some .discussion befor.e' us as io whether or not the grounds referred to in section 15(2) (b)' as amended are justidable issues. If the factual existence of those grounds could be made the subject of inquiry in a court of law, the . restric-tions sought to be imposed on. the right of association would not be open to . exception, but then the Govern-ment would. 'apparently have no use for section 15 (2) (b). For, it was strenuously contended on its be-half by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by Government the test of unlawfulness, rendered the insertion of ,, the .words ''.in. its opinion". unnecessary and, indeed, inappropriate and that ' ' the omission of those words could not lead to any infer-ence that the grounds on which the declaration was to be based were intended to be any more justiciable than under the old section 16 ; more especially as the "opinion" or the ."satisfaction" of the Government or of its oflicer:s is still the. determining factor in notifying a place under section 17 A(l) and in forfi:iting· the movables found therein under section 17B(l) or the funds of an unlawful association under section 17E (1). The provision· for an inquiry as to the existence or otherwise ' of such grounds before an Advisory Board and for: cancellation of the notilicatidn in· case the Board found · there was no sufficient cause for dec-laring the assoeiation as unlawful also pointed; it was· urged to . the same · conclusion.. The contention is not without force, and the position wa:s not contested for ?952! the respondent. It may, accordingly, be taken that State,'of.M'{llras. the test under section 15(2) (b) is as it was under the .·l'. old section 16, a subjective one, and the factual exist- .V. G. Raw. ence or otherwist of the grounds is not a justiciable issue. Patanjali. .!/alt.ri C. . It is on this basis, then, that the question has to be determined as to whether section 15 (2) (b) as amended falls within the limits of constitutionally permissible· legislative abridgement of the fundamental right con-ferred on the citizen by article 19(1)(c). Those limits are defined in clause ( 4) of the same article.

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

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

Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted "due process" clause in the Fifth and Fourteenth Amendments. If, then, the courts in this· country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution.• This is especially true as regards the "fundamental rights", as to which this Court has been assigned the'

>:>- role of a sentinel on the qui vive. While the Court

naturally . attaches great weight to the legislative judg- ·ment, it cannot desert its own.·, ducy: : to' : determine 1952 .finally the constitutionality of an impugned statute. State of Mlldr111 We have ventured on these obvious remarks because

v. it appears to have been suggested in some quarters V. G. Row. that the courts in the new set up are out to seek

clashes with legislatures in the country.

Pataniali Sastri C. f. The learned Judges of the High Court unanimously

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

This Court had occasion in Dr. Khare's case (1 ) tO· define the scope of the judicial review under clause (5) of article 19 where the phrase "imposing reason-able restrictions on the exercise of the right" also. occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive· law should be .f.Xamined from the point of view of 1952 rearonableness ; · that is to say, the Court should con-State of MadraJ sider not only factors such as the duration and the v. extent of the restrictions, but also the circumstances V. G. Row. under which and the manner in which their imposition has been authorised. It is important in this; context Patanjali to bear in mind that the test of reasonableness, where-Sastri ever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as appli-cable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter mto the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the cir-cumstances of a given case, it is inevitable that the social philosophy and the scale ·of values of the judges participating in the decision should play an important part, and the limit to their interference with legisla-tive judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.

Giving due weight to all the considerations indi-cated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of authorised restrictions on the right conferred by article 19 (1) (c). The right to form associations or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fileds, that the vesting of authority m the executive government to impose restrictions on such right, without allowing the grounds of such impo-sition, both in their factual and · legal as,pects, to be 1952 duly tested in a judicial inquiry, is a strong element' State of Mat/ros' ·: which, in our opinion, must be taken into account in.

judging the reasonableness of the restrictions imposed. '°Y• V. G. ·Rql/!. by section 15 (2) (b) on the exercise of the funda-

mental right under article 19 ( 1) ( c) ; for, no summary Patanjali and what is bound to be a largely one-sided review by .Sastri C. /. an Ach•L,ory Board, even where its verdict is binding

on the executive ·government, can be a substitute for a judicial enquiry. The formula of subjective satisfac-tion of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic free-· dom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and, within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restric-tions on fundamental rights. In the case of preventive• detention, no doubt, this Court upheld in Gopalan' s case(') deprivation of personal liberty by such means,- but that was because the Constitution itself sanctions laws providing for preventive detention, as to which no question of reasonableness could arise in view of the language of article 21. As pointed out by Kania C. J ." at page 121, quoting Lord Finlay in Rex v. Halliday('); "the court was the least appropriate tlribunal 'to in-vestigate into circumstances: of suspicion on which such anticipatory action must be largely based".

The Attorney-General placed strong reliance on the decision in Dr. Khare' s cas~(') where the subjec-tive satisfaction of the Government regarding the necessity for the externment of a person, coupled ·with a reference of · the matter to an Advisory Board whose opinion, however, had no binding force, was considered by a majority to be "reasonable" procedure for reS-tricting the right to move freely conferred by article 19 ( 1) (b). The Attorney-General claimed that the reasoning of that decision applied · a fortiori to the present case, as the impugned Act provided that the Advisory Board's report was binding on the Govern-ment. We cannot agree. We consider that. that case is distinguishable in several essential particulars. For 19~2 one thing. externment of individuals, like preventive >f M detention; is largely precautionary and based on sus-8 '"'"°v. adra• picion. ·In fact, section A (1), of the East·Punjab v.0:11owc Public Safety Act, which was the subject of.considera~ tion in Dr; Kha re's case('), authorised both preventive Palanjali detention and. externmenL for. the same purpose and 80"'' 0 J. on the same ground namely, "with a view to prevent.

ing him from acting in any manner prejudicial to the public safety or the maintenance of public -0rder it·. is necessary; etc.".· Besides, both involve an element of emergency requiring prompt steps to be taken. to pre-vent apprehended danger to public tranquillity;:· and authority has.to be vested in the Government and its.

officers to take appropriate action on. theii: own res"

ponsibility. . These features. are; , however, absent in the grounds on which the Government is. authorised, under section 15 (2) (b), to declare associations unlaw • ful. · These grounds; taken by themselves, are factual· and not anticipatory or based on suspicion. ·An asso-ciation is allowed to . be declared unlawful because it "constitutes" a danger or "has interfered or· .inter-feres" with the maintenance .of public.order or "has such interference fore its object",. etc.· ... The factual existence· of .-these grounds is :amenable to objective d_etermination by the court;: quite as: much· as the grounds mentioned in clause {a) of sub-section (2) of section 15; as to which the Attorney-Generalconceded that it . would be . .incumbent : f on, the ·Government to establish, as, a fact, that the association, which it a!leged,to •be unlawful, "encouraged" or .'.'aided"· persons to commit acts of· ·violence,· etc;: \Ve :are unable to discover any.reasonableness in the claim. of the Government in seeking,.by its mere ,declaration, ·to shut.out judicial enquiry into the underlying facts under clause (b). Secondly, the East Punjab Public .

Safety Act.was a temporary enactmentwhich,was to be in force only for a year, and any order made there-'

under wasJo. expire at. the. termination ofthe Act.

\Vhat. may be_ regarded as a. reasonable restriction 1952 imposed under such a statute will not necessarily be

considered reasonable under the impugned Act, as the State of Madras latter is a permanent measure, and any declaration

v.

V. G. Row. made thereunder would continue in operation for an

indefinite period until the Government should think Patanjali fit to cancel it. Thirdly, while, no doubt, the Advisory Sastri C. /. Board procedure under the impugned Act provides a

better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the Government, the impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the Government's notification under section 15(2)(b) to the association and its members or office-bearers. The Government has to fix a reasonable period in the notifi-cation for the aggrieved person to make a representa-tion to the Government. But, as stated already, no personal service on any office-bearer or member of the association concerned or service by aflixture at the office, if any, of such association is prescribed. Nor is any other mode of proclamation of the notification at the place where such association ~arries on its activities provided for. Publication in the official Gazette, whose publicity value is by no means great, may not reach the members of the association declared unlawful, and if the time fixed expired before they knew of such declaration, their right of making a re-presentation, which is the only opportunity of present-ing their case, would be lost. Yet, the consequences to the members which the notification involves are most serious, for, their very member.iliip thereafter is made an offence under section 17.

There was some discussion at the bar as to whether want of knowledge of the notification would be a valid defence in a prosecution under that section. But it is not necessary to enter upon that question, as the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the association and its members or office-bearers, may well be considered sufficient to rendc;r · the imposition of restrictions by such means unreasonable. In this 1952 respect an externment order stands on a different footing, as provision is made for personal or other ade-State of Madras v. quate mode of service on the individual concerned, V. G. Row. who is thus assured of an opportunity of putting for-ward his case. For all these reasons the decision in Patanjali Dr. Khare' s case(1) is distinguishable and cannot rule Sastri C. the present case as claimed by the learned Attorney-General. Indeed, as we have observed earlier, deci-sion dealing with the validity of restrictions imposed on one of the rights conferred by article 19 (1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumulative effect of the varying facts and cir-cumstances of each case.

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

The appeal fails and is accordingly dismissed with costs.

Appeal dismissed.

Agent for the appellant : P.A. Mehta.

Agent for the respondent : S. Subrahmanyan.

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