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indulal K. Yagnik Vs. State - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Criminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 1445 of 1959
Judge
Reported in(1960)62BOMLR206
ActsConstitution of India - Article 19(1) and 19(2); Police (Incitement to Disaffection) Act, 1922 - Sections 3; Bombay Police Act, 1951 - Sections 145
Appellantindulal K. Yagnik
RespondentState
Appellant AdvocateK.K. Singhvi and ;T. Godiwala, Advs.
Respondent AdvocateY.V. Chandrachud, Govt. Pleader
Excerpt:
police (incitement to disaffection) act (xxii of 1922), section 3 - constitution of india, article 19(2)--bombay police act (bom. xxii of 1951), sections 29, 145(2)--validity of section 3 of act xxii of 1922 - whether section 3 falls within protection of article 19(2)--section 3 whether concerned with security of state or public order--whether section 3 imposes unreasonable, restriction on fundamental right guaranteed under article 39(1)(a).;section 3 of the police (incitement to disaffection) act, 1922, is intra vires and falls within the protection of article 19(2) of the constitution of india.;romesh thappar v. the state of madras [1950] s.c.r. 694, ram nandan v. state [1959]a.i.r. all. 101, f.b., debi soren v. the state [1954] a.i.r. patna 254, ramji lal modi v. the state of up......shelat, j.(1) this application under art. 228 of the constitution raises the question as to the validity of section 3 of the police (incitement to disaffectio n) act beig act no. xxii of 1922.(2) the petitioner is a memeber of the loksabha having been elected from the constituency of the city of ahmedabad and is also the president of the maha gujerat janta prishad. on the 15th of march 1959, he delivered a speech in a public meeting held under the auspices of the maha gujerat janata parishad at gandh chowk, saraspur, ahmedabad, in which he addressed certain remarks amongst other persons to the members of the police force. it is alleged that the speech was in contravention of section 3 of the said act.(3) the speech made by the petitioner and taken down by the police shorthand-writer runs.....
Judgment:

Shelat, J.

(1) This application under Art. 228 of the Constitution raises the question as to the validity of section 3 of the Police (Incitement to Disaffectio n) Act beig Act No. XXII of 1922.

(2) The petitioner is a memeber of the Loksabha having been elected from the constituency of the City of Ahmedabad and is also the President of the Maha Gujerat Janta Prishad. On the 15th of March 1959, he delivered a speech in a public meeting held under the auspices of the Maha Gujerat Janata Parishad at Gandh Chowk, Saraspur, Ahmedabad, in which he addressed certain remarks amongst other persons to the members of the police force. It is alleged that the speech was in contravention of Section 3 of the said Act.

(3) The speech made by the petitioner and taken down by the police shorthand-writer runs as follows:

'Someone (policemen) tells me to form an Union. I told him to form Seva Mandal. There is fund of the department (Police Welfare Fund). The children of policemen should be given education and the ailing persons should be known (sic) everywhere; that there is dissatisfasction among the policemen and when the 8t August will come they will realise that they were so far acting like enemies of the people and henceforth they will be careful and disregrd the rule of Shri Chaven.

'When dissatisfaction among the police rank will increase, they will think of remaining faithful to the people of Gujarat and its soil and they will not care for Heradia (District Magistrate) and Shri Nanavati (Dy. Inspector General of Police. Ahmedabad); the mastery of Sethna (District Superintentent of Police) will be of no use. The wireless police will not give any reply. The Motor driver will get down and the policemen will say that they are also on strike. The revolution in Russia came in 1905 and at that time policemen went on strike damning the Government administration as it could not function without them, and had to compromise with the opponents of Czar.

'If all officers at all places raise shouts of protests, declare a revolt and decide to go on strike, Shri Chavan will run to Delhi and say that he cannot run the bilingual State etc.'

On this speech the petitioner was charged with having committed an offence under Section 3 of the Police (Incitement to Disaffection) Act, 1922. While the case against the petitioner, being case No. 625 of 1959, was pending in he Court of the learned Judicial Magistrate, First Class, 3rd Court, Ahmedamad the petitioner presented this application and obtained an interim stay.

(4) For the purposes fo this application we will assume that the aforesaid speech made by the petitioner falls under the mischief of Section 3 of the Police (Incitement to Disazffection) Act, 1922.

(5) Mr. Singhvi, who appears for the petitioner, assailed Section 3 on two grounds; (1) that the section has nothing to do and is not concerned with the security of State or the public order and (2) that even if it has the section is so wide in its scope that it is unreasonable, that is. Its scope is wider than it need be. It was, therefore, urged that the impugned section cannot be said to be a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1) of the Constitution as it cannot be said to have been enacted ither in the interests of the secuirty of the State or public order. Act. 19(1) privides:

'All citizens have the right-

(a) to freedom of speech and expression;

xxx'

To appreciate Mr. Singhvi's argument it is necessary to keep in mind Art. 19(2) as it was before its amendment in 1951 and as it stands now.Art, 19(2) prior to the amendment in 1951 was as follows:

'Noting in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends or overthorow, the State.'

By the Constitution (First Amendment) Act, 1951, which was enacted on 18th of June 1951 with retrospecive effect clause (2) of Art. 19 was altered so as to red as follows:

'Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State.......public order.....or incitment to an offence.'

(6) As has often been said, freedom of speech and expression meas the right of a citizen to express his opinions as also the opinions of others freely, by word of mouth, writing, printing or by any oher means of communication. As stated by his Lordship Mr. Justice Patanjali Sastri as he then was in Romesh Thappar v. State of Madras : 1950CriLJ1514 , freedom of speech and expression lies at the foundation of all democratic organisations, for without free political discussion no public education, s essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But as James Madison (quoted by the learned Judge) said,

'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.'

It was due to the realisation of this principle that narrow limits were set to permissible legislative abridgement of this fundamental right. From what is stated in Romesh Thappar's case, : 1950CriLJ1514 we agree with Mr. Singhvi that we should approach the impugned statute from the point of view that Art. 19(1) as framed guarantees the right of freedom of speech and expression as a vital necessity for the democratic processes in the Constitution and it is in that spirit that we should approach the question whether the impugned section falls within the limits laid down in clause (2) of Art. 19 which allows the Legislature to make enactments restrictive of this fundamental right.

(7) For the purposes of this application the relevant limits are (1) min the interests of the security of the State, (2) in the interests of public order, and (3) prevention of incitment to an offence.

(8) The contention of Mr. Singhvi was that none of these three subjects saves the restriction to the petitioner's right of freedom of speech and expression embodied in the impugned Sec.3 of Act. His argument for which he leaned fairly heavily on the case of Romesh Thappar : 1950CriLJ1514 was that a speech to police constables, as the speech in this case was which on the assumption that it cases disaffection against the Government of Bombay, cannot affect either the security of State or the public order. He argued that there is nothing in any statute which prohibits a person to air his views before police constables and he illustrated this by pointing out thata person might address constables showing to them crtain defects in the policy of Gvernment towards the constabulary, by showing to them that that policy was not ameliorative, that their salaries and other conditions of service were not adequate and thereby create disaffection in their minds towards Government. He might also exhort the constables to withhold their services from such Government. Similarly out of the several hundreds of rules of discipline such a person might exhort the constables to commit a breach of any one of them, for instance to commit breach of the rule that constables should appear in a parade in their regulation dress. Such exhortations which might create disaffection amongst the members of the police force would not, argued Mr. Singhvi, fall under the persmissible restrictions such as the ones which might be enacted in the interests of the security of the State or in the interests of public order. Relying on Romesh Thappar's case, : 1950CriLJ1514 , Mr. Singhvi argued that unless a law restricting this freedom is directed solely against activities which tend to undermine the security of the State, such a law cannot fall within the reservatiuon under clause (2) of Art. 19 and therefore would be unconstitutional and void. Secondly it would not be posible to uphold a law which purports to authorise the imposition to restrictions on a fundamental right in a language wide enough to cover restrictions both within and ithout the limits of constitutionally permissible legislative action affecting such a right, even so far as it may be applied within the constitutional limits, as it is not severable. Therefore so long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional an void. In other words, clause (2) of Art. 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger can arise, cannot be held to be constitutional and valid to any extent.

(9) Mr. Singhvi also relied on the observations of Mr. Jstice Patanjali Sastri to be found at p. 602 for SCT): (at p. 128 of AIR) of the report where he has observed:

'.....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 of or tend to overthrowthe State.'

Therefore whatever aims the farmers of an impugned statute may have, its application and scope cannot in the absence of limiting words in the statute itself, be restricted to those 'aggravated forms of prejudicial activity which are calculated to endanger the security of te State.' We may doserve that the decision in Thappar's case, : 1950CriLJ1514 , was given before Art. 19(2) was amended.

(10) Mr. Singhvi has also relied on a recent decision of the Full Bench of the Allahabad High Court in Ram Nandan v. State : AIR1959All101 , which deciared Section 124-A of the Penal Code ultra vires of Art. 19(1) of the Constitution. The principal grounds relevant for our purposes on which Section 124-A has been declared ultra vires in ths decision are: (1) that any form of bad feeling to the Government being expressed would attract Section 124-A even without any publicity and even a conversation with a person not likely to disturbpublic orer would also fall within the purview of that section; (2) that a tendency to disorder cannot be said to be inherent in disaffection; there may be disaffection, which has a tendency to disorder and there may, at the same time, be disaffection within the meaning of Section 124-A which has not that tendency. Therefore, inasmuch as Section 124-A of the Penal Code punishes both, the restriction in that seftion to the right of speech and expressionm cannot be said to be reasonable in the interests of public order. Mr. Singhvi argied, relying upon this decision, that howsoever much a person may cause disaffection by his speech or writing against Government and howsoever strong words he uses against a member or members of such Government, so long as that disaffection does not cause or tend to cause the undermining of the security of the State or public order, a restriction on the right of freedom of speech to prevent or prohibit such disaffection would not be reasonable within the meaning of Article 19(2). This decision is mainly on the vires of Section 124-A of the Penal Code, so that we are not really concerned in this application with the observations made there in connection with Section 124-A of the Penal Code. We are concerned in this application with a different statute enacted for an entirely different purpose and object; so that it would not be safe or proper to take observations made in connection with Section 124-A of the Penal Code and apply them indiscriminately to consider the Constitutionality or otherwise of the impugned statute before us. Similarly, the observations relied on by Mr. Singhv from the decision in Romesh Thapper's case, : 1950CriLJ1514 , also, as we have already said, were made before the amendment of Art. 19(2) and therefore they also would not assist much on the question before us except to the extent that they would be useful in considering the scope of the words security of the State'. It is, therefore, best that we should turn to the impugned statute itself and see how far the observations relied on by Mr. Singhvi from these two authorities can assist us in determining the question whether the restriction in the impugned section can be said to be reasonable or not.

(11) While considering the question before us we must bear in mind the principle of interpretation succinctly set out in Debi Soren v. State AIR 1954 Pat 254, where a Division Bench of the Patna High Court upheld Section 124-A of the Penal Code as valid. Mr. Justice Das dealing with Section 124-A and Sec 153-A of the Penal Code observed that those two sections were not rendered void on the ground that they were inconsistent with the fundamental right of freedom of speech and expression guaranteed by the Constitution. He also observed that in construing the provisions of Secs. 124-A and 153-A of the Penal Code, it should be the effort of the Court to give that interpretation to those provisions which would make them consistent with the Constitution of India, unless the language of the provisions precludes such an interpretation. It was held that Secs. 124-A and 153-A of the Penal Code impose reasonable restrictions in the interests of public order, giving that expression a fair and reasonable wide meaning. He also observed:

'A change in the spirit of the time cannot justify a change in a principle of alw y judicil decision, though change in public opinion may lead to legislaive interference and substantive alteration of the law. But where two interpretations can be given to the words of an existing law, the Court should accept that interpretation which is in favour of constitutionality rather than in interpretation which will make the law unconstitutional.

Bearing in mind these principles of interpretation, we now approach the provisions of the impugned statute.

(12) Section 3 of the Act reads:

'Whoever intentionally causes or attempts to cause, or does any act which he knows is likely to caue, 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 with imprisonment.......' etc.

There is an Explanation to this section which provides:

'Expressions 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.'

Section 4 then provides that nothing would be an offence under Section 3 which is done in good faith for the purpose of promoting the welfare or interests of any member of a police-force by inducing him to withhold his servives in any manner authorised by law; or by or on behalf of any association formed for the purpose of furthering the interests of members of a plice-force as such, where the association has been authorised or recognised by the Government and the act done is done under any rules or articles of the association which have been approve by the government.

(13) The Explanation to Section 3 thus exempts from the purview of Section 3 all expressions of disapprobation of the measures of Government and its administrativ actions mae with a view to have them altered by lawful means unless they cause or are made for the purpose of causing or are likely to cause disaffection. Likewise under Section 4 an act would not be an offence if it were done in good faith, for the purpose of promoting the welfare or interests of a member of a police-force even if it amounts to inducing him to withhold his services provided it is done in a manner authorised by law or if it is done by or on behalfof an association where such association is recognised by Government and the act is done under the rules of such association approved by Government. Thus the freedom of the right of the speech and expresion is curtailed to limited extent in so far as it is used to cause disaffection in reference not to all persons as in the case of Section 124-A of the Penal Code but to a limited and special class of persons, namely, the members of police force. The right of speech to constables also is not curtailed in general but with reference to certain aspects only and for limited purposes, namely, against causing disaffection against Government. Even the extent of that restriction is limited by the Explanation to Section 3 and the provisions of Section 4 of the Act. It would not, therefore, be objectionable for a person to commiunicate his view which disapprove the measures of Government, both administrative and otherwise, with a view to have them changed by lawful means and which are not communicated for the purpose of causing disaffection, and similarly things done in good faith with the object of ameliorating the interests and the conditions of a member of the police force are not objectionable. Even inducing a constable to withhold his services in a manner authorised by law an individual or by or on behalf of an association recognised by Government would not fall within the mischief of Section 3 of the Act. In the light of the circumscribed scope of Section 3 of the imugned Act, it is not possible to sustain the argument that the restriction imposed on by Section 3 of the Act is unlimited or that it would include in its purview even innocent expressions of disapprobation against Government or its measures or the conditions of service of the constabulary.

(14) The words 'security of the State' used in Art. 19(2) are also to be construed in the light of Art. 12 which defines 'the State'. Under that Article 'the State' includs the Government and Parliament of India, the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control fo the Government of India. It would be pertinent to observe at this stage that both in Articles 14 and 15 it is the State whic is directed not to deny to any person equality before the faw or the equal protection of the laws within the territory of India and not to discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. The State, that is spoken of in that part of the Chapter which deals with fundamental rights, is the State which has been defined in Art. 12 of the Constitution. So that when one talks about the 'security of the State' those words do not and cannot mean merely danger to the security ofthe entire country, not can it be restricted to an upheavel or a rebellion endangering the security of the entire country. It is at the same time true, as was said in the Allahabad decision, that disapprobation or criticism against a member of a Government, however strong the language is used in such criticism, cannot amount to endangerng the security of the State. Nevertheless the security of the State can be undermined by danger both from within and without the State. In that light just as armed forces would be considered as a special class of persons engaged to avert danger to that security primarily from without, though sometimes from within also, the constabulary also consists of persons specially engaged to avert danger arising from within although they may be expected to avert such danger in limited filed and on limited occasions. While considering the impugned statute it is also imperative to remember that Art. 19(2) does not use the words 'for the maintenance of the security of the State' but used the words 'in the interests' of the security of the Stat and apublic order. The impugned statute thus deals with a special class of persons, persons whose function mainly is to protect the security of the State and maintain public order. It would be axiomatic to say that a person serving in the constabulary, if he is disaffected or disatisfied, cannot fully and whole heartedly serve the purposes for which he is engaged. Creating disaffection amongst such constabulary or inducing a mamber or members of such force to withhold services or to commit breach of discipline while in that force, when so doe, except for the purpose set out in Explanation to Section 3 and in Section 4 would in our judgment, amount to that class of aggravated form of prejudicial activity which is referred to by Mr. Justice Patanjali Sastri in Romesh Thappar's case : 1950CriLJ1514 . It is true that a person has a right to give expression and to propagate his view to achieve a change in a party government. But that right has a different aspect when considered in the light of the special position and functions of the police-force. A Government in the ultimate analysis is the final authority to issue rders and directions to such a force for the maintence of and in the interests of public order. A force, disaffected against such Government, cannot obviously carry out such ordeers and directions directions and the failure to carry them out, itthe police force were to be permitted to be disaffected is bound to affevt public order and their work in the interests of such public order.

(15) As we have said, Art. 19(2) uses the words 'in the interests' of public order and not 'maintenance of public order.' The words 'in the interests of public order' must mean and include any measure or direction or order which assists in or is conducive to the maintenance and preservation of public order. It is true, as was said by Mr. Singhvi, that there must be some nexus between the restriction contained in an impugned statute and public order. But then disaffection caused in a police-force, inducement given to a member or members thereof to withhold his or their services, or to commit breach of discipline mut be held to have connection with public order. 'To withhold services' would mean not merely to resign from the force but to deliberately refuse, to forbear or to refrain from performing tasks and duties enjoined upon the members of the force by the rules governing them. 'To withhold services,' means something more aggravated than even committing breach of a disciplinary rule. It is thus impossible to say that poblic order can be maintained or that it would be consistent with the interests of public order if members of the police force were permittedto be disaffected or inducements to them to withhold their services or to commit breach of the rules of discipline were allowed. It was, however, urged by Mr. Singhvi that there are numerous rules of discipline, some of them vitl and te others not so vital, and breach of some of them, not vital, cannot be said to affect public order. In our view, that is not a correct approach. A rule ofdiscipline taken by itself without its context and effect in the light of the Code discipline as a whole might at fist sight appear not to be vital, but a removal of one of them would affect the entire structure of such a Code. It is obvious that the strength and the uility of a police-force is constituted is bound to be undermined and in that light public order as such is liable to be adversely affected.

(16) In this connection observations made by their Lordships of the Sureme Court, though made in connection with S. 295-A of the Penal Code, in Ramji Lal Modi v. State of U. P. : 1957CriLJ1006 are of considerable importance. They show how the permissible limits of legislation imposing restrictions on the right of freedom of speech have been extended by the amendment of Art. 19(2) and also how the observations made in Thappar's Case, : 1950CriLJ1514 were based on Art. 19(2) as it stood then. That was apetition challenging the constitutional validity of S. 295-A of the Penal Code and for quashing the petitioner's conviction thereunder on the charge of publishing an article in a monthly magazine of which he was the printer, publisher and editor. It was there urged that the impunged section infringed his fundamental right to freedom of speech and expression conferred by Art. 19(1)(a) and was not a law imposing reasonable restrictions on the right inthe interests of public order under Clause (2) of Art. 19, which alone could afford a justification for it. It was there held that the expression 'in the interests of' occurring in the amended Clause (2) of Art. 19 had the effect of making the protection afforded by hat clause very wide and a law not directly designed to maintain public order would well be within its protection if such activities as it penalised had a tnedency to cause public disorder. Their Lordships there observed while considering the ingredients of S. 295-A of the Penal Code that it would be absurd to suggest that insult to religion as an offence could have no bearing on public order so as to attract Clause (2) of Art. 19 in view of the provisions of Arts. 25 and 26 of the Constitution which, while guaranteeing freedom of religion, expressly made it subject to public order. It was also observed that having regard to the language and the ingredients of S. 295-A of the Penal Code it could not be rightly contende that the restrictions imposed by it could be used for purposes other than those falling within the limits of the Constitution. Thus a case of an insult to religion though apparently not connected with the concept of public order was held to have a bearing on public order. Dealing with the cotention that where the language employed in the statute is wide enough to cover restrictions both within and without the limitation of constitutionally permissible legislative action affecting the right and the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out and therefore the law of the impugned statute must be held to be wholly void, His Lordship the Chief Justice observed:-

'After this Court decided the cases of Romesh Thappar, : 1950CriLJ1514 and Brij Bhushan v. State of Delhi : 1950CriLJ1525 , clause (2) of Art. 19 of the Constitution was amended. Clause (2), as amended, protects a law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by sub-clause (a) of clause (1) of Article 19 'in the interests of the Security of the State...... public order..... or incitement to an offence'.' Citing the decision in AIR 1954 Pat 254, His Lordship then observed that the expression 'in the interests of' makes the ambit of the protection very wide. A law may not have been designed to directly maintain public order and yet it may have been enacted in the interest of public order. It was also observed that the calculated tendency of the aggravated form of insult to religion was clearly to disrupt public order and the section, which penalises such activities, was therefore well within the protection of clause (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a).

(17) Similarly in Virendra v. State of Punjab : [1958]1SCR308 , it was held that the expression 'in the interests of' in Arts. 19(2) and 19(6) of the Constitution makes the protection they afford very wide and although free propagation and interchange of views are ordinarily in social interest, in public order is greater and the imposition of reasonable restrctions on the freedom of speech and expression becomes imperative. It was there held that regard being had to the surrounding circumstances in which the impugned Act was passed, its object, the extent and urgency of the evil it sought to remedy, and the enormous power wielded by the Press, with modern facilities of quick circulation, and the consequence that any abuse of it might lead to, the restrictions imposed by the impugned Act, viz., The Punjab Special Powers (Press) Act, 1956, should be held to be resonable restrictions under the Article. Dealing with the principle laid down in Thappar's case, : 1950CriLJ1514 and relied on by Mr. Singhvi, the Supreme Court again reiterated that it should be remembered that Art. 19(2) as it was worded at the time of the decision in Romesh Thappar's case, : 1950CriLJ1514 gave protection to a law relating to any matter which undermined the security of or tended to overthrow the State. Referring to the principle laid down in Romesh Thappar's case, : 1950CriLJ1514 viz. that whatever end the impugnd Act might have been intended to subserve and whatever aim its famers might have had in view, its application and scope could not, in the absence of limiting words in the statute itself, be restricted to the aggravated from of activities which were calculated to endanger the security of the State; nor was there any guarantee that those officers who exercised the power under the Act would, in using them, discriminate between those who acted prejudicially to the security of the State and those who did not, their Lordships stated that this consideration could not apply to the case under their consideration. That was on the ground that Art. 19(2) as since been amended so as to extend its protection to a law imposing reasonable restrictions in the interests of public order. Thus, the observations made in : [1958]1SCR308 to a considerable extent seem to review the principles laid down in Romesh Thappar's case, : 1950CriLJ1514 in the light of the amendment of Art. 19(2). What their Lordships emphasised in this case was the factor that while considering the question as to the reasonableness of the restrictions imposed in an impugned Act, it would be the duty of the Court to consider whether the social interest in the public order is greater and whether an imposition of restriction on the freedom of speech and expression becomes in the light of such social interest imperative or not.

(18) The test as to what is reasonableness is to be found in the State of Madras v. V. G. Row : 1952CriLJ966 expressed in the following words :

'It is important in this context to bear in ind 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 athe 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 tim, should all enter into the judicial verdict.'

(19) In the light of these principles and considering the fact what is objectionable under the impugned section is the causing of disaffection against Government amongst a limited and a special class of persons or inducing or luring them to withhold their services or to commit breach of the rules of discipline, we are of the view that the impugned section in the statute before us has a bearing on public order and, has been enacted in the interests of public order.

(20) There is one more aspect which must be considered while determining the reasonableness of the restriction. Art. 19(2), as we have already stated, provides tht restriction to the right of a freedom of speech is protected if it is enacted to prevent incitement to commit an offence. The Bombay Police Act of 1951 defines in S. 2(11) a 'Police Officer' as 'meaning any member of the Police Force appointed or deemed to be appointed' under that Act and includes a special or an additional police officer appointed under section 21 or 22 of the Act. S. 29 then provides that no such police officer of the grade of an Inspector or of the subordinate ranks shall resign his office or withdraw himself from the duties thereof, except with thewritten permission of the Commissioner r the Deputy Inspector General, Criminal Investigation Department, or other officers therein mentioned. S. 145(2) then provides that any police officer who resigns his office or withdraws himself from duties thereof in contravbention of S. 29 or is guilty of any wilful breach or neglect of any provision of law or of any rule or order which as such police officer, it is his duty to observe or bey, or is gulilty of any violation of duty for which no punishment is expressly provided by any oter law in force, shall on conviction be punished with imprisonment etc. The learned Government Pleader relying upon these sections contended that inducing a member of the Police-force to withhold his services or to commit breach of the rules of discipline would amount to a penal offence within the meaning of S. 29 read with S. 145(2) of the Bombay Police Act and that therefore incitement to commit such an offence must be held to be protected by clause (2) of Art. 19. Mr. Singhvi, however, contended that S. 29 does not cover officers of grades higher than that of an Inspector and that therefore asking officers of such higher grade to withhold services would not amount to incitement to commit an offence and that to that extent the purview of S. 3 of the impugned Act should be held to be wider than necessary. S. 145(2), however, does not conter any exemption upon a police officer of a grade higher than that of Inspector. As the language of that sub-section stands it would seem that it includes within its scope all grades of police officers. S. 145(2) expressly makes it an offence for any police officer to withdraw himself from duties in contravention of the povisions of S. 29 or if he is found to be guilty aof any wilful breach or neglect of any provision of law or of any rule or which as such polce officer it is his duty to observe and obey. If a police officer, including a constable, were therefore to withhold his services or were to commit breach of the rules of discipline or any duty enjoined upon him, it would be an offence punishable under S. 145(2) if no punishment has been expressly provided in any other statute or rule. In that view inducing a police officer of whatever grade, including a constable, to withhold his services or to commit breach of the rules of discipline would be incitement to commit an offence, and therefore the restrictions imposed against the right of freedom of speech from inciting an offence spoken of in S. 145 would be well protected by clause (2) of Art. 19 of the Constitution.

(21) For the reasons aforesaid we are of the view that the impugned section 3 of Act XXII of1922 is intra vires and falls within the protection of clause (2) of Art. 19 of the Constitution. The case against the petitioner is sent back to the learned Magistrate to dispose it of according to law and in the light of the observations made by us in this judgment. The petition fails.

(22) Petition dismissed.


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