Meaning of insecurity of the State
At this stage, it will be convenient to consider the meaning of another expression “public safety” which is used throughout the impugned Act and which is also chosen by its framers for its title. This expression, though it has been variously used in different contexts (See Penal Code, chap XIV), has now acquired a well-recognized meaning in relation to an Act like the impugned Act, as a result of a long course of legislative practice, and may be taken to denote safety or security of the State. In this sense, it was used in the Defence of the Realm (Consolidation) Act, 1914, as well as the Defence of India Act, and this is how it was judicially interpreted in Rex vs. Governor of Wormwood Scrubbs Prison, (1920) 2 K. B 305. The headnote of this case runs as follows:
“By S. 1, Defence of the Realm (Consolidation) Act, 1914, power was given to His Majesty in Council ‘during the continuance of the present war to issue regulations …. for securing the public safety and the defence of the realm’:
Held, that the regulations thereby authorised not limited to regulations for the protection of the country against foreign enemies, but included regulations designed for the prevention of internal disorder and rebellion.”
8. Thus public order and ‘public safety are allied matters, but in order to appreciate how they stand in relation to each other, it seems best to direct our attention to the opposite concepts which we may, for convenience of reference, respectively label as ‘public disorder’ and public unsafety’. If public safety is , as we have seen equivalent to ‘security of the State’, what I have designated as public unsafety may be regarded as equivalent to ‘insecurity of the State’, When we approach the matter in this way, we find that while ‘public disorder’ is wide enough to cover a small riot at an affray and other cases where peace is disturbed by or affects a small group of persons, ‘public unsafety’ (or ‘insecurity of the State’) will usually be connected with serious internal disorders and such disturbances of public tranquillity its jeopardize the security of the State.
9. In order to understand the scope of the Act, it will be necessary to note that in the Act ‘maintenance of public order’ always occurs in juxtaposition with ‘public safety’, and the Act itself is called ‘The East Punjab Public Safety Act.’ The prominence thus given to be ‘public safety’ strongly suggests that the Act was intended to deal with serious cases of public disorder which affect public safety or the security of the State, or cases in which, owing to some kind of emergency or a grave situation having arisen, even public disorders of comparatively small dimensions may have far-reaching effects on the security of the State. It is to be noted that the Act purports to provide “special measures to ensure public safety and maintenance of public order.” The words “special measures’ are rather important, because they show that the Act was not intended for ordinary cases or ordinary situations. The ordinary cases are provided for by the Penal Code, and other existing laws, and with these the Act which purports to be of a temporary Act is not apparently, concerned. It is concerned with special measures which would presumably be required for special cases or special situations. Once this important fact is grasped and the Act is viewed in the proper perspective much of the confusion which has been created in the course of the arguments will disappear. The line of argument advanced on behalf of the petitioners is that since the Act has been passed in exercise of the power granted by the expression ‘public order’, used in the Government of India Act, which is a general term of wide import, and since it purports to provide for the maintenance of public order, its provisions are intended or are liable to be used for all cases of breaches of public order, be they small or insignificant breaches or those of a grave or serious nature. This is, in my opinion approaching the case from a wrong angle. The Act is a place of special legislation providing for special measures and the central idea dominating it is public safety and maintenance of public order in a situation requiring special measures.
10. It was argued that “public safety” and maintenance of public order’ are used in the Act disjunctively and they are separated by the word ‘or’ and not ‘and’, therefore we cannot rule out the possibility of the Act providing for ordinary, as well as serious cases of disturbance of public order and tranquillity. This, as I have already indicated, is a somewhat narrow and technical approach to the question. In construing the Act, we must try to get at its aim and purpose, and before the Act is declared to be invalid, we must see whether it is capable of being so construed as to bear a reasonable meaning consistent with its validity. We therefore cannot ignore the fact that preservation of public safety is the dominant purpose of the Act and that it is a special Act providing for special measures and therefore it should not be confused with an Act which is applicable to ordinary situations and to any and every trivial case of breach of public order. In my opinion, the word ‘or’ is used need here not so much to separate two wholly different concepts as to show that they are closely allied concepts and can be used and almost interchangeably in the context. 1 think that ‘public order’ may well be paraphrased in the context as public tranquillity and the words ‘public safety’ and ‘public order’ may be read as equivalent to “security of the State” and “public tranquillity.”
11. I will now flow advert once more to cl. (2) of Art. 19 and state what I consider to be the reason for inserting in it the words “matter which undermines the security of, or tends to overthrow, the State.” It is well. recognized in all systems of law that the right to be freedom of speech and expression or freedom of press means that any person may write or say what he pleases so long as he does not infringe the law relating to libel or slander or to blasphemous, obscene or seditious words or writings:(see Halsbury’s Laws of England, 2nd Edn. Vol. II, p. 891). This is practically what has been said in cl. (2) of Art. 19 with this difference only that instead of using the words ‘law relating to sedition’, the framers of the Constitution has used the words mentioned above. It is interesting to note that sedition was mentioned in the original draft of the Constitution, but subsequently that word was dropped and the words which I have quoted were inserted. I think it is not difficult to discover the reason for this change and I shall briefly state in my own words what I consider it to be.
12. The latest pronouncement by the highest Indian tribunal as to the law of sedition is to be found in Niharendu Dutt vs. Emperor, (1942) F.C.R. 38 which has been quoted again and again and in which Gwyer C. J. laid down that public disorder, or the reasonable anticipation or likelyhood 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.”
For this view, the learned Chief Justice relied on certain observations of Fitzgerald J in R. vs. Sullivan, (1868) 11 Cox. C.C. 44 and he also added that he was content to adopt “the words of that learned Judge which are to be found in every book dealing with this reach of the criminal law” There is no doubt that what Gwyer C.J. has stated in that case represents the view of a number of judges and authors and was also the view of Sir James Stephen in regard to whom Cave J. in his charge to the jury in a case relating to the law of sedition (R.V. Burns, (1886) 16 Cox C.C. 355) said:
“The law upon the question of what is seditious and what is not is to be found stated very clearly in a book by Stephen J. who has undoubtedly a grater knowledge of criminal law than any other judge who sits upon the bench, and what he has said upon the subject of sedition was submitted to the other judges, who sometime back were engaged with him in drafting a criminal code, and upon their report the commissioners say that his statement of law appears to them to be stated accurately as it exists at present. “
13. The decision of Gwyer C.J. held the field for several years until the Privy Council, dealing with a case under the Defence of India Rules, expressed the view in Emperor vs. Sadhashiv Narayan, 74, I. A. 89,1 that the test laid down by the learned Chief Justice was not applicable in India where the offence under S. 124A. Penal Code, should be constured with reference of the words used in that section. They also added:
“The word sedition does not occur either in S. 124 A or in the Rule; it is only found as a marginal note to S. 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restricting the contends of section by the marginal note. In England there is no statutory definition of sedition; its meaning and contend have been laid down in many decisions some of which are referred to by the chief Justice but these decision are not relevant when you have a statutory definition of that what is termed sedition, as we have in the present case
Their Lordships are unable to find anything in the language of either S. 12 A or the Rule which could suggest that the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency.”
14. The framers off the Constitution must have therefore found themselves face to face with the dilemma as to whether the word sedition’ should be used in Art. 19 (2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sadition as defined in the Penal Code did not necessarily imply any intention or tendency to incite disorder. In these circumstances it is not surprising that they decided not to use the word “sedition” in cl. (2) but used the more general words which cover sedition and everything else which makes sedition such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt. That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent judges and jurists are agreed. Therefore it is difficult to hold that public disorder or disturbance of public tranquillity are not matter which undermine the security of the State.
15. It will not be out of place to quote here the following passage from Shephen’s Criminal Law of England (Vol. II pp. 242 and 244):
“It often happens, however, that the public peace is disturbed by offences which without tending to the subversion of the existing political constitution practically subvert the authority of the Government over a greater or less local area for a longer or shorter time. The Bristol riots in 1832 and the Gordon riots in 1780 are instances of this kind. No definite line can be drawn between insurrections of this sort, ordinary riots and unlawful assemblies. The difference between a meeting stormy enough to cause well founded fear of a breach of the peace, and a civil war the result of which may determine the course of a nation’s history for centuries, is a difference of degree. Unlawful assemblies, riots, insurrection, rebellions, levying of war, are offences which run into each other, and are not capable of being marked off by perfectly definite boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.
Another class of offences against public tranquillity are those in which no actual force is either employed or displayed, but in which steps are taken tending to cause it. These are the formation of secret societies, seditious conspiracies, libels or words spoken.
Under these two head all offences against the internal public tranquillity of the State may be arranged.”
16. This passage brings out two matters with remarkable clarity. It shows firstly that sedition is essentially an offence against public tranquillity and secondly that broadly speaking there are tow classes of offences against public tranquillity:(a) those accompanied by violence a considerable number of persons or an extensive local area, and (b) those not accompanied by violence but tending to cause it such as seditious utterances, seditious conspiracies, etc. Both these classes of offences are such as will undermine the security of the State or tend to overthrow it if left unchecked, and, as I have tried to point out, there is a good deal of authoritative opinion in favour of the view that the gravity ascribed to sedition is due to the fact that it tends to seriously affect the tranquillity and security of the State. In principle, then, it would not have been logical to refer to sedition in cl. (2) of Art. 19 and omit matters which are no less grave and which have equal potentiality for undermining the security of the State. It appears that the framers of the Constitution preferred to adopt the logical course and have used the more general and basic words which are apt to cover sedition as well as other matter which are as detrimental to the security, of the State as sedition.
