KEYWORDS:- JUDICIAL REVIEW-imposing reasonable restrictions-test of reasonableness
Court naturally attaches great weight to the legislative Judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.
AIR 1952 SC 196 : (1952) SCR 597 : (1952) CriLJ SC 966
(SUPREME COURT OF INDIA)
|The State of Madras||Appellant|
|V. G. Row||Respondent|
(Before : M. Patanjali Sastri, C.J.I., Mehr Chand Mahajan, B. K. Mukherjea, S. R. Das And N. Chandrasekhara Aiyar, JJ.)
Case No. 90 of 1951, Decided on : 31-03-1952.
Freedom to form association—Restriction thereon—Judicial Review— Subjective satisfaction of the Government about the reasonableness of restriction cannot substitute judicial inquiry into the matter.
Right conferred by Art. 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 fields that the vesting of 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 inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by Section 15(2)(b) Criminal Law Amendment Act, 1908, on the exercise of the fundamental right under Art. 19(1)(c); for, no summary and what is bound to be a largely one sided review by an Advisory Board one sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown into review the materials on which the Government seeks to override a basic freedom 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 restriction on fundamental rights.
Fundamental rights—Reasonableness of restrictions—Determination of—No abstract standard can be laid down to assess the reasonableness—The reasonableness of the restriction has to be assessed on the basis of nature of right allegedly infringed, purpose of restriction and the extent and urgency of the evil sought to be remedied.
The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailling conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.
Patanjali Sastri, C. J—This is an appeal from an order of the High Court of Judicature at Madras adjudging S. 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908, (Act No. 14 of 1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, (hereinafter referred to as the impugned Act) as unconstitutional and void, and quashing Government Order No. 1517, Public (General) Department, dated 10th March 1950 whereby the State Government declared a Society called the People’s Education Society an unlawful association.
2. The respondent, who was the general secretary of the Society, which was registered under the Societies’ Registration Act, 1860, applied to the High Court on 10th April 1950 under Art. 226 of the Constitution complaining that the impugned Act and the order dated 10th March 1950 purporting to be issued thereunder infringed the fundamental right conferred on him by Art. 19 (1) (c) of the Constitution to form associations or unions and seeking appropriate reliefs. The High Court, by a Full Bench of three Judges (Rajamannar C. J., Satyanarayana Rao and Viswanatha Sastri JJ.) allowed the application on 14th September 1950 and granted a certificate under Art. 132. The State of Madras has brought this appeal.
3. The Government Order referred to above runs as follows:
“Whereas in the opinion of the State Government, the Association known as the People’s Education Society, Madras, has for its object interference with the administration of the law and the maintenance of law and order, and constitutes a danger to the public peace;
Now, therefore, His Excellency the Governor of Madras, in exercise of the powers conferred by S. 16 of the Indian Criminal Law Amendment Act, 1908 (Central Act 14 of 1908) hereby declares the said association to be an unlawful association within the meaning of the said Act.”
No copy of this order was served on the respondent or any other office-bearer of the society but it was notified in the official gazette as required by the impugned Act.
4. The declared objections of the Society as set out in the affidavit of the respondent are:
(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science;
(b) to encourage, promote diffuse and popularise political education among people;
(c) to encourage, promote, and popularise the study and understanding of all social and political problems and bring about social and political reforms; and
(d) to promote, encourage and popularise art, literature and drama.
It was, however, stated in a counter-affidavit filed on behalf of the appellant by the Deputy Secretary to Government, Public Department, that, according to information received by the Government, the Society was actively helping the Communist Party in Madras which had been declared unlawful in August 1949 by utilising its funds through its Secretary for carrying on propaganda on behalf of the Party, and that the declared objects of the Society were intended to camouflage its real activities.
5. As the Madras Amendment Act (No. 11 of 1950) was passed on the 12h August 1950 during the pendency of the petition, which was taken up for hearing on the 21st August 1950, the issues involved had to be determined in the light of the original Act as amended. In order to appreciate the issues it is necessary to refer to the relevant provisions. Before amendment by the Madras Act, the material provisions were as follows:
“15. In this Part:
(1) “association” means any combination or body of persons whether the same be known by any distinctive name or not; and
(2) “unlawfull association” means an association:
(a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or
(b) which has been declared to be unlawful by the Provincial Government under the powers hereby conferred.
16. If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may by notification in the official Gazette declare such association to be unlawful.”
6. The amending Act substituted for Cl. (b) in S. 15 (2) the following clause:
“(b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association:
(i) constitutes a danger to the public peace etc.
(ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or
(iii) has interfered or interferes with the administration of the law, or has such interference for its object.”
For the old S. 16, Ss. 16 and 16-A were substituted as follows:
“16. (1) A notification issued under Cl. (b) of Sub-s. (2) of S. 15 in respect of any association shall:
(a) specify the ground on which it is issued, the reasons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefor; and
(b) fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.
(2) Nothing in sub-s. (1) shall require the State Government to disclose any facts which it considers to be against the public interest to disclose.”
7. Under S. 16-A, the Government is required, after the expiry of the time fixed in the notification for making representations, to place before an Advisory Board constituted by it a copy of the notification and of the representations, if any, received before such expiry, and the Board is to consider the materials placed before it, after calling for such further information as it may deem necessary from the State Government or from any office-bearer or member of the association concerned or any other person, and submit its report to the Government. If it is found by the Board that there is no sufficient cause for the issue of the notification in respect of the association concerned, the Government is required to cancel the notification.
8. There is no amendment of S. 17 which prescribes penalties by way of imprisonment or fine or both for membership or management of an unlawful association and for taking part in meetings of such association or making, receiving or soliciting contributions for purposes thereof. Section 17-A, which confers power on the Government to notify and take possession of places used for the purposes of an unlawful association, was amended by the addition of sub-clauses 2(a) and 2(b) providing for a remedy, where such power was exercised, by way of application, within thirty days of the notification in the official Gazette, to the Chief Judge of the Small Cause Court or the District Judge according as the place notified is situated in the Presidency Town or outside, for “a declaration that the place has not been used for the purpose of any unlawful association”. If such declaration is made, the Government is to cancel the notification in respect of the place. Section 17-B empowers the officer taking possession of a notified place to forfeit movable property found therein if, in his opinion, such property “is, or may be used for the purposes of the unlawful association” after following the procedure indicated. Section 17-E similarly empowers the Government to forfeit funds of an unlawful association
“if it is satisfied after such enquiry as it may think fit that such funds are being used or intended to be used for the purposes of an unlawful association.”
The procedure to be followed in such cases is also prescribed. By S. 17-F jurisdiction of civil Courts, save as expressly provided, is barred in respect of proceedings taken under Ss. 17-A to 17-E.
9. By S. 6 of the amending Act notifications already issued and not cancelled before the amendment are to have effect as if they had been issued under S. 15 (2) (b) as amended, and it is provided in such cases a supplementary notification should also be issued as required in S. 16 (1) (a) and (b) as amended and thereafter the procedure provided by the new S. 16-A should be followed. It was under this provision that the validity of the notification issued on the 10th March 1950 under old S. 16, fell to be considered in the light of the provisions of the amended Act when the petition came up for hearing in the High Court on 21st August 1950.
10. It will be seen that where old S. 16 expressly conferred on the Provincial Government power to declare associations unlawful, if in its opinion, there existed certain specified grounds in relation to them, those grounds 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 before us as to whether or not the grounds referred to in S. 15 (2) (b) as amended are justifiable issues. If the factual existence of those grounds could be made the subject of inquiry in a Court of law, the restrictions sought to be imposed on the right of association would not be open to exception, but then the Government would apparently have no use for S. 15 (2) (b). For, it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by Government the test of unlawfulness, rendered the insertion of the words “in its opinion” unnecessary and, indeed, inappropriate, and that the omission of those words could not lead to any inference that the grounds on which the declaration was to be based were intended to be any more justiciable than under the old S. 16; more especially as the “opinion” or the “satisfaction” of the Government or of its officers is still the determining factor in notifying a place under S. 17-A (1) and in forfeiting the movables found therein under S. 17-B (1) or the funds of an unlawful association under S. 17-E (1). The provision for an inquiry as to the existence or otherwise of such grounds before an Advisory Board and for cancellation of the notification in case the Board found there was no sufficient cause for declaring the association as unlawful also pointed, it was urged, to the same conclusion. The contention is not without force and the position was not contested for the respondent. It may, accordingly, be taken that the test under S. 15 (2) (b) is , as it was under the old S. 16, a subjective one, and the factual existence or otherwise of the grounds is not a justicable issue.
11. It is on this basis, then, that the question has to be determined as to whether S. 15 (2) (b) as amended falls within the limits of constitutionally permissible legislative abridgement of the fundamental right conferred on the citizen by Art. 19 (1) (c). Those limits are defined in cl. (4) of the same article.
“(4) Nothing in sub-cl. (c) of the said clause shall affect the operation of any existing law in so far as it imposes, 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.”
12. It was not disputed that the restrictions in question were imposed “in the interests of public order”. But, are they “reasonable” restrictions within the meaning of Art. 19 (4)?
13. Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution, unlike in America where the S. C. 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 Judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the Courts in the new set up are out to seek clashes with the legislatures in the country.
14. The learned Judges of the High Court unanimously held that the restrictions under S. 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 by 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 Art. 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 S. 15 (2) (a) and (b). The other learned Judges did not, however, agree with this view. 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 agreeing with the conclusion of the learned Judges that S. 15 (2) (b) is unconstitutional and void,. we are of opinion that the decision can be rested on a broader and more fundamental ground.
15. This court had occasion in ‘Dr. N. B. Khare v. State of Delhi, (1956) SCR 519 to define the scope of the judicial review under Cl. (5) of Art. 19 where the phrase “imposing reasonable restrictions on the exercise of the right” also occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative Judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposing of the restrictions, considered them to be reasonable.
16. Giving due weight to all the considerations indicated above, we have come to the conclusion that S. 15 (2) (b) cannot be upheld as falling within the limits of authorised restrictions on the right conferred by Art. 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 fields that the vesting of 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 inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by S. 15 (2) (b) on the exercise of the fundamental right under Art.19 (1) (c); for, no summary and what is bound to be a largely one-sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this Court upheld in ‘A K. Gopalan V. State of Madras’, (1950) SCR 88 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 Art. 21 (Art. 22?). As pointed out by Kania C. J. at p. 121, quoting Lord Finlay in ‘Rex v. Halliday’, (1917) AC 266 at p. 269:
“the Court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based.”
17. The Attorney-General placed strong reliance on the decision in ‘Dr. Khare’s Case’, (1950) SCR 519 where the subjective satisfaction of the Government regarding the necessity for the externment of a person, coupled with a reference of the matter to an Advisory Board whose opinion, however, had no binding force,. was considered by a majority to be “reasonable” procedure for restricting the right to move freely conferred by Art. 19 (1) (b). The Attorney-General claimed that the reasoning of that decision applies ‘a fortiori” to the present case, as the impugned Act provided that the Advisory Board’s report was binding on the Government. We cannot agree. We consider that that case is distinguishable in several essential particulars. For one thing, externment of individuals, like preventive detention, is largely precautionary and based on suspicion. In fact, S. 4 (1) of the East Punjab Public Safety Act, which was the subject of consideration in ‘Dr. ‘Khare’s Case’, (1950) SCR 519 authorised both preventive detention and externment for the same purpose and on the same ground, namely,
“with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc.”
Besides, both involve an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tranquillity, and authority has to be vested in the Government and its officers to take appropriate action on their own responsibility. These features are, however, absent in the grounds on which the Government is authorised, under S. 15 (2) (b), to declare associations unlawful. These grounds, taken by themselves, are factual and not anticipatory or based on suspicion. An association is allowed to be declared unlawful because it ‘constitutes” a danger or “has interfered or interferes” with the maintenance of public order or “has such interference for its object”, etc. The factual existence of these grounds is amenable to objective determination by the Court, quite as much as the grounds mentioned in cl. (a) of sub-S. (2) of S. 15, as to which the Attorney-General conceded that it would be incumbent on the Government to establish, as a fact, that the association, which it alleged to be unlawful, “encouraged” or “aided” persons to commit acts of violence, etc. We 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 cl. (b). Secondly, the East Punjab Public Safety Act was a temporary enactment which was to be in force only for a year, and any order made thereunder was to expire at the termination of the Act. What may be regarded as a reasonable restriction imposed under such a statute will not necessarily be considered reasonable under the impugned Act, as the latter is a permanent measure, and any declaration made thereunder would continue in operation for an indefinite period until the Government should think fit to cancel it. Thirdly, while, no doubt, the Advisory Board procedure under the impugned Act provides a better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the Government, the ‘impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the Government’s notification under S. 15 (2) (b) to the association and its members or office-bearers. The Government has to fix a reasonable period in the notification for the aggrieved person to make a representation to the Government. But, as stated already, no personal service on any office-bearer or member of the association concerned or service by affixture 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 carries on its activities provided for. Publication in the official Gazette, whose publicity value is by no means great may not reach the members of the association declared unlawful, and if the time fixed expired before they knew of such declaration, their right of making a representation which is the only opportunity of presenting their case, would be lost. Yet, the consequences to the members which the notification involves are most serious, for, their very membership thereafter is made an offence under S. 17.
18. 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 render the imposition of restrictions by such means unreasonable. In this respect an externment order stands on a different footing, as provision is made for personal or other adequate mode of service on the individual concerned, who is thus assured of an opportunity of putting forward his case. For all these reasons the decision in ‘Dr. ‘Khare’s Case’, (1950) SCR 519 is distinguishable and cannot rule the present case as claimed by the learned Attorney-General. Indeed, as we have observed earlier, a decision dealing with the validity of restrictions imposed on one of the rights conferred by Art. 19 (1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumulative effect of the varying facts and circumstances of each case.
19. 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, S. 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 cl. (4) of Art. 19 and is, therefore, unconstitutional and void.
20. The appeal fails and is accordingly dismissed with costs.
Counsel for the Parties:
Shri M. C. Setalvad, Attorney-General for India (Shri S. Govinda Swaminathan and Shri R. Ganapathy Iyer, Advocates, with him), instructed by Shri P. A. Mehta, Agent, for Appellant
Shri C. R. Pattabhi Raman, Advocate, instructed by Shri S. Subramanian, Agent, for Respondent; Shri M. C. Setalvad, Attorney-General for India (Shri G. N. Joshi, Advocate, with him), instructed by Shri P. A. Mehta, Agent, for the Union of India; Shri T. N. Subramania Iyer, Advocate-General of Travancore-Cochin (Shri M. R. Krishna Pillai, Advocate, with him), instructed by Shri P. A. Mehta, Agent, for the State of Travancore.