1. The petitioner Shri Indulal Kanaiyalal Yagnik has preferred this petition under Article 226 of the Constitution. He challenges inter alia, the constitutionality of Clause (r), Sub-clause (iii) of Sub-section (1) of Section 33 of the Bombay Police Act, 1951, (hereafter called the 'Act'), and the rules made thereunder. The challenge is on the ground that the clause and the rules are violative of Articles 19(1)(a) and 14 of the Constitution.
The petitioner also challenges an order, dated 8th March 1961, passed by the second respondent, who is the Police Commissioner of Ahmedabad.
The challenge is on the same grounds. The petitioner also challenges the act of the third respondent, by which the latter seized a microphone from petitioner's possession.
2. A party bearing the name of 'Ahmedabad. Janata Samiti' was formed to contest the Municipal elections which were to be held at Ahmedabad in March 1961. The 'Samiti' put up 45 cor.didates at the election. The petitioner, who was the elected President of this 'Samiti', wrote a letter, dated 6th March 1961, to the second respondent, and informed him that he intended to hold a meeting on 8th March 1961 at about 9-00 P.M. in Manek Chawk near a place called 'Tilak Maidan' and requested him to grant him permission to use a loudspeaker thereat. The meeting was obviously intended to carry on propaganda for the 'Samiti'. The permission was sought under the rules framed by the District Magistrate, Ahmedabad, by his notification No. 565, dated 2Sth July 1953, as amended by his notification, dated 16th September 1954. It is common ground that these rules were in force on the date in question. The rules were framed by that officer under the power vested in him by Sub-clause (iii) of Clause (r) or Sub-section (1) of Section 33 of the Act. Rule No. 1 prohibited every person from using a loudspeaker in or near any public place, without obtaining a licence from the District Magistrate. It is not disputed that the powers which were conferred upon the District Magistrate by Section 33 of the Act were exertis-abie by the Police Commissioner of Ahmedabad after the City of Ahmedabad was placed under the charge of a Police Commissioner. It is also not disputed that, on the relevant date, the aforesaid two notifications, dated 28th July 1953 and 16th September 1954, were in force and that the powers conferred upon the District Magistrate by Section 33 and the rules made thereunder were exereisable by the Police Commissioner, the second respondent. The second respondent refused to grant permission for use of a loudspeaker to the petitioner and communicated this decision to the petitioner by his letter, dated 8th March 1961. In spite of this refusal, the petitioner used a loudspeaker at the meeting, which he held on 8th March 1961 at about 9-00 P.M., in pursuance of the intention which he had communicated earlier to the second respondent. Thereupon, G.R. Sindhi, P. S. I., Manek Chowk Police Choki, the third respondent, within whose jurisdiction the meeting was held, went up to the petitioner at the meeting and called upon him to desist from making use of the loudspeaker. The petitioner, however, refused to listen and continued the use of the microphone and the loudspeaker. Thereupon, purporting to act in the exercise of the powers given to him under the Polica Act, the third respondent forcibly seized the microphone and took the same away. Subsequently the third respondent lodged a complaint, being Criminal Case No. 3253 of 1961, under Section 131 of the Bombay Police Act in the Court of Shri Lalani, Judicial Magistrate, First Class, 4th Court, Ahmedabad, the fourth respondent, alleging that ihe petitioner had committed a breach of the rules aforesaid and that, therefore, he was liable to be punished under that section. Thereafter, the petitioner filed the present petition. The petitioner, by this petition, prays for a declaration that Section 33, Sub-section (1), Clause (r), Sub-clause (iii) of the Bombay Police Act and the rules framed thereunder are ultra vires the Constitution of India and that an injunction be issued to all the respondents restraining them from enforcing the section and the rules. He also prays for the issue of a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or order under Article 226 of the Constitution directing the second respondent not to interfere with his fundamental right to use a microphone at public meetings in the city of Ahmedabad and forbearing him from seizing the mike or taking any other action against the petitioner for use of the mike at public meetings. He also prays for a writ of prohibition or a writ in the nature of prohibition or direction or order under the same Article against the fourth respondent, calling upon him to drop the criminal proceedings aforesaid and for restraining him from entertaining future or further proceedings on similar grounds.
3. The impugned part of Section 33 of the Act is as follows:
'33. (1): The Commissioner and the DistrictMagistrate, in areas under their respective chargesor any part thereof, may make, alter or rescindrules or orders not inconsistent with this Act for:
(r) licensing, controlling or, in order to prevent obstruction, inconvenience, annoyance, risk,danger or damage of the residents or passengers inthe vicinity prohibiting:
XX X X
(iii) the using of a loudspeaker in or near anypublic place * * * *'.
This part of the section confers upon the officersmentioned therein powers to make rules or ordersfor the use of a loudspeaker in or near a publicplace. The powers conferred are three in number,viz. (i) the power of licensing, (ii) the power ofcontrolling, and (iii) the power of prohibition. The authorities on whom the powers are conferred are (i) the Commissioner, and (ii) the District Magistrate. The powers are to be exercised by these officers in areas under their respective charges or any part thereof. All the three powers are to be so exercised by making rules and orders and in such, a way that the latter would not be inconsistent with the provisions of the Act. The part of the section itself does not mention the conditions on which and/or the limitations subject to which the powers of granting licence for and control of the use of a loudspeaker are to be exercised. However, the part does mention the limitations to which the power of prohibiting the user of laudspeaker is subject. Prohibition can be imposed to secure all or any of the objects mentioned in the clause. These objects are the prevention of obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity. The powers can be exercised only in respect of loudspeakers which are to be used in or near any public place. They cannot be exercised in respect of their user at other places. The powers can be exercised either in respect of the whole of the area in which the officer concerned exercises his jurisdiction or in any part thereof.
4. There are two provisos to Sub-section (1) of which only the second is relevant for the present purpose. The second proviso enacts that any action taken under the rules or orders made under the sub-section or the grant of a licence made under such rules or orders shall be subject to the control and supervision of the State Government. Sub-section (2) provides that the power of making, altering or rescinding rules, inter alia, under Clause (r), Sub-clause (iii), shall be subject to the previous sanction of the same Government. Sub-section (6) provides that the power of making, altering or rescinding rules under the section shall be subject to the condition of the rules being made, altered or rescinded after previous publication, and everv rule made or alteration or rescission of a rule made under the section shall be published in the Official Gazette, and in the locality affected thereby by affixing copies thereof in conspicuous places near to the building, structure, work or place, as the case may be, to which the same specially relates or by proclaiming the same by the beating of drum or by advertising the same in such local newspapers in English or in the local language, as the authority making, altering or rescinding the rule may deem fit or by any two or more of these means or by any other means it may think suitable. The proviso to this sub-section confers power of making, altering or rescinding rules without previous publication if the officer concerned is satisfied that circumstances exist which render it necessary that such rules, alterations or rescission should be brought into force at once.
5. The above additional provisions in the section ensure, except in emergent cases, (i) previous publication, and (ii) publication in the official Gazette and in other suitable manners, of rules, before they come into operation. The object of these provisions appears to be to give the rules a wide publicity so that they are brought to the notice of all the persons concerned before they become operative. The rules under the impugned part of the section can only be effective if previous sanction of the State Government is obtained. The proviso to Sub-section (1) also makes it clear that any action taken under the rules or the orders is subject to the control and supervision of the State Government.
6. In exercise of the above powers, rules were framed by the District Magistrate, Ahmedabad, for the city of Ahmedabad and published by the two notifications already referred to. Though the rules were framed by the District Magistrate, Ahmedabad, when the Police Commissioner, the second respondent, did not exercise any jurisdiction in the city of Ahmedabad, as already stated, it is not in dispute that these rules were to continue to operate, after the city of Ahmedabad was placed under the jurisdiction of a Police Commissioner, until, the latter officer chose to make fresh rules in exercise of the power conferred upon him by the above section.
7. On the relevant date, the above rules were ten in number. The first rule prohibited every person from making use of a loudspeaker in or near any public place without obtaining a licence in that behalf from the District Magistrate or any officer authorised by him in that behalf. It is not disputed that, afler the appointment of the Police Commissioner, the licence was to be obtained from the Police-Commissioner or any person authorised by him. The fifth rule prohibited the licensee from using the loudspeaker in such a manner as to disturb or cause annoyance to any other person residing in or carrying on business in any building or premises adjoining the public place. The sixth rule prohibited the licensee from making use of a loudspeaker except in accordance with the conditions of the licence and the rules which might from time to time be made in that behalf. The second rule also prohibited the licensee from making use of a loudspeaker within 200 yards of:
(i) a place, of worship, during the hours of worship;
(ii) the premises of any Court or public office, during the hours of the Court or public office;
(iii) any hospital, at any time;
(iv) the premises of an institution imparting education, during the hours of studies.
The third and the fourth rules are not relevant for our purposes. They deal with the user of a loudspeaker from a moving or a stationary vehicle. The ninth rule made it clear that, in spite of the grant of a licence, the licensee shall be subject to any special directions or orders from the D.S.P., or, subject to his orders, any Police Officer, under Section 36 or to any notification issued by the D.S.P. under Sub-section (1) of Section 33 or any order under Sub-section (1) of Section 38 of the Act. The tenth rule made it clear that, in spite of the grant of a licence, the power of the District Magistrate to prohibit the licensee under the circumstances mentioned in the impugned part of the section was not affected. The eighth rule conferred power upon the officer concerned to cancel the licence if the licensee contravened any of the rules or conditions of the licence These in substance, arc the impugned rules.
8. The rules deal with not only the user, tout also with the operational a loudspeaker. They also deal with not only a person who uses a loudspeaker, but also one who grants permission to another to make use of or operate a loudspeaker. They also deal with the user of a loudspeaker not only in or near any public place, but also at a place of public entertainment. However, we are not concerned in the present petition with either the operation of a loudspeaker or the grant of permission by a citizen to make use of a loudspeaker or the user or operation of a loudspeaker an or near a place of public entertainment. Therefore, whilst summarising the rules, we have not mentioned these portions of the rules.
9. Broadly speaking, these rules require every person to obtain a licence before making use of a loudspeaker at certain places and impose restrictions and limitations upon the licensee in regard to the user of the same. The rules also confer power upon the officer concerned to cancel the licence under the circumstances metioned therein.
10. The lelter of the second respondent, dated 8th March, 1961, stated that permission for use of a loudspeaker was not granted as it would cause an obstruction to the traffic.
11. Mr. Oza contended that the impugned part of the section, the impugned rules and the impugned order violate the fundamental right of freedom of speech and expression guaranteed to the petitioner by Article 19, Clause (1), Sub-clause (a). The submission was that the fundamental right of freedom of speech and expression included the righl to propagate one's views by and through all available means, including the means of a loudspeaker. Secondly, he contended that the impugned pari of the section, the rules and the order, contained a total prohibition to exercise the fundamental right of freedom of speech and expression. Thirdly, he contended that, in any case, the provisions regarding licensing, controlling and prohibiting tha use of a loudspeaker in Section 33(1)(r)(iii) and the rules framed thereunder contained an anticipatory restraint on the exercise of the same right. On the other hand, the learned Advocate General contended that the fundamental right of freedom of speech and expression did not include the right to make use of a loudspeaker. Alternatively, he contended that, even if this was not so, the impugned provisions, were reasonable restrictions in the interests of public order and, therefore, were protected by Clause (2) of Article 19 of the Constitution. To this, the answer of Mr. Oza was that the restrictions we're not reasonable and that they were not imposed in the interests of public order. Mr. Oza further contended that, even assuming that there was no contravention of fundamental eight of freedom of speech and expression, the power conferred upon the Police Commissioner or the District Magistrate was bad as the power so conferred offended the principle of delegated legislation. The contention was that the restrictions in Clause (2) could only be imposed by the Legislature and that the power of placing such restrictions could not be conferred by the Legislature upon the Police Commissioner or the District Magistrate. Mr. Oza further contended that, even assuming that his contentions under Article 19 or on the ground of delegated legislation were not tenable, the impugned part of the section was vio-latiye of Article 14 of the Constitution. The contention was that there was no reasonable classification in the matter of the conferment of the powers upon the officers concerned and that the effect of the legislation was to permit the officers to make different rules and orders in different parts of the State which would deny the citizens equality before law and equal protection of law. Finally, Mr. Oza contended that the seizure of the microphone by the third respondent from the petitioner was deprivation of the petitioner's property without authority of law and was violative of Article 31 of the Constitution.
12. The first point for consideration is whether the right to the user of a loudspeaker is included in the fundamental right of freedom of speech and expression. Mr. Oza contended that the fundamental right was not merely the right to speak, but included the right to express one's views and that this right comprehended the right of making use of all mechanical means for the purpose of conveying one's views. On the other hand, the learned Advocate General contended that the right which was conferred by the Constitution was merely the right of propagation of one's views and that it did not and could not include within its ambit the right to make use of mechanical means for the purpose of conveying those views. In support of this proposition, the learned Advocate General strongly relied upon the decision of Rajni Kant Verma v. State, reported in AIR 1958 All 360. The contention which was urged and upheld in this case was that the use of mechanical appliances like loudspeakers and amplifiers was not covered by the guarantee of tha freedom of speech and expression. However, no reasons have been given by Oak J., who decided the case, in support of the decision. The learned Advocate General conceded this. But, he said that he was in a position to give a reason in its support. He said that the words 'freedom of speech and expression' did not comprehend one single right but included two dual rights -- the right of speech and the right of expression and the latter connoted only the freedom of the press and was confined only to the right to propagate one's views by printing them and no more. The learned Advocate General contended that the loudspeakers were unknown to the stalwarts who fought for and secured the right of freedom of speech and expression, and that, it could not have been within the contemplation of these persons to have included in the right the user of such mechanical instruments. The learned Advocate General contended that, if the contention of the petitioner were upheld, every citizen would be entitled to use radio for expression of his views and that there was no authority which went to the length of stating that a citizen had the fundamental right of establishing a radio station for himself. He contended that if the freedom were enlarged in this way, then, the security of the State was likely to be jeopardized. We cannot agree with these contentions. In our judgment, though the right guaranteed by Article 19(1)(a) has many facets, if is but one right. The right of speech and tha light of expression are not two separate rights, but, they are two aspects of one and the same right, one being complementary to the other. This fundamental right is not merely a right to make use of one's larynx. It is not merely a right to make use of the human voice box. If this were so, it is quite clear that the right would be a futile right. Nobody would cherish the right to express his views to himself. No dictator has ever succeeded in preventing anyone, from hearing his own views. In order that the right may be effectively exercised and serve a useful purpose, the right should be not merely a right to make use ef one's speech, but a right to express one's views to others. Thus, the essence of the right does not consist in merely making use of the human voice, but, it lies in the ability to convey one's views to others. It is this aspect of the right that has made it the bulwark of democracy and which compels one to cherish it jealously. There is no reason for confining the right to the freedom of the press and for holding that the right was intended only to allow the journalist to proclaim his views through the medium of the press. The essence of the right consists in giving an opportunity to the citizen to reach the minds of his fellow citizens and, thereby, to give him the chance to convert them to his own views. It follows from this that the right includes not merely the right to propagate one's views, but, also comprehends the right to circulate those views to as large an audience as one can possibly reach. If the mechanical appliances and instruments other, than the press can help the citizen in reaching a wider circle of audience than the limits of his voice can permit, there does not appear to be any good reason why the citizen should not be permitted to avail himself of them. There does not appear to be any good reason as to why the journalist should be preferred in the matter qf the exercise of this freedom to the non-journalist. If the journalist can avail himself of the mechanism of his press i'or reaching a wider circle of audience, there is no reason why a person, who has at his disposal a more modest instrument like the microphone, should not avail himself of that instrument. There is ample authority for the proposition that the freedom of speech and expression includes the freedom of circulation. In Romesh Thappar v. State of Madras : 1950CriLJ1514 , the petitioner challenged an order of the Government of Madras made in exercise of their powers under Section 9(1-A), Madras Maintenance of Public Older Act, 1949, whereby that Government imposed a ban upon the entry and circulation of the petitioner's weekly journal in that State. The order was impugned on the ground that it interfered with the right of the petitioner to circulate his journal, which right was included in the fundamental right of freedom of speech and expression. His Lordship Patanjali Sastri, J. delivering the majority judgment of the Court made the following observations when dealing with the merits of this contention.
'Turning how to the merits, there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. 'Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value' '.
In Virendra v. State of Punjab : 1SCR308 , one of the notifications which was challenged prohibited the entry and circulation of papers published from New Delhi in the whole of the Punjab and that notification and Section 3 of the Punjab Special Powers (Press) Act, 1956, under which the notification was issued were challenged on the ground that they interfered with the fundamental right of freedom of speech and expression. In dealing with this contention, S.R. Das, C. J. made the following observations at page 899.
'There is and can be no dispute that the right to freedom of speech and expression carries with it the right to propagate and circulate one's views and opinions subject to reasonable restrictions'.
In Hamdard Dawakhana v. Union of India : 1960CriLJ671 , Their Lordships have made the following observation.
'Freedom of speech goes to the heart of the natural right of an organised freedom loving society to 'impart and acquire information......'.'
The judgment recently delivered on the 25th of September 1961 in Petitions Nos. 331 of 1960 and : 3SCR842 in the case of Sakal Papers (P.) Ltd. v. Union of India is a direct authority for the proposition that the right of circulation by all available means is included in the freedom of speech and expression. This is what Their Lordships state in this decision.
'....... it would be clear that the rightto freedom of speech and expression carries witb it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication. ..... .'.
It is true that, in none of these cases, the question about the user of loudspeakers, amplifiers and other means of expression directly arose for decision and, from this point of view, it may be said that the matter is not covered by any direct authority of the Supreme Court. However, in our judgment, there cannot be any distinction between the right to circulate a newspaper and the right to circulate one's views by means of loudspeakers and amplifiers. In both the cases, the right which is involved is the right of circulation and if the press is conceded the right to circulate its views, there is no reason, in principle, why the same right should be denied to a person who uses loudspeakers and amplifiers. Though the question did not directly arise for consideration in Express Newspaper (Private) Ltd. v. Union of India : (1961)ILLJ339SC , His Lordship Bhagwati, J., in delivering the judgment in the case, has made certain observations regarding the freedom of the press as understood in the United States of America which directly touches the point. His Lordship has observed at page 616, paragraph 142, that the freedom of press in the United States of America involves freedom of employment of the necessary means of exercising the right and that the necessary corollary of the concept of freedom as it obtains in the United States of America is that no measure can he enacted which would have the effect of curtailing the circulation, and that, such a measure would certainly tend to infringe the freedom of speech and, therefore, would be liable to be struck down as unconstitutional. It is true that these observations do not lay down the law on the subject for this country. But, in the absence of any authority to the contrary which is binding on this Court, we have no hesitation in accepting the law as understood in the United States of America on this subject being applied in interpretation of the fundamental right of freedom of speech and expression. In this connection, it is important to notice that, in dealing with the right of circulation in Thappar's case. : 1950CriLJ1514 , Patanjali Sastri, C. J. relied upon two decisions of the Supreme Court reported in In re, Jackson, (1951) 96 U.S. 727, and Lovell v. City of Griffin, (1937) 303 U.S. 444, in support of the decision that the freedom ef speech and expression included the freedom of circulation. In Petns. Nos. 331 of 1960 and 67 and : 3SCR842 , in another passage, Their Lordships have characterized the right to circulate one's paper as an integral part of the freedom of speech and expression and have made the following observations :
'The freedom of a newspaper to publish any number of pages or to circulate it to any number ef persons is an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression'.
In this case, the Newspaper (Price and Page) Act, 1956, and the Daily Newspaper (Price and Page) Order, 1960, were struck down as unconstitutional, mainly on the ground that these two enactments affected the circulation of the newspapers concerned and that, thereby, the fundamental right of freedom of speech and expression of those aewspapers was abridged.
13. Therefore, we have no doubt whatsoever that the right which is guaranteed by Article 19(1)(a) is not merely a light to express and propagate one's views, hut also includes in it the right to circulate one's views to others by all such means as are available to the citizen to make known those views. Under the circumstances, in eur judgment, any legislation or order which puts a ban on the user of a loudspeaker which helps the citizen in circulating his views to as large an audience as he can will be prima facie an infringement of the fundamental right of the freedom of speech and expression unless the infringement is justified by Clause (2) of Article 19.
13A. Mr. Oza contended that it followed from the fact that the user of a loudspeaker was comprehended in the fundamental right of the freedom of speech and expression, that a total ban on the user of such a right would amount to a total 'annihilation of the right itself and would constitute an infringement of the above fundamental right. In our judgment, it is not necessary to decide whether the proposition so broadly stated is or is not correct in law. It may be that if the effect of an impugned legislation is a total prohibition, then, the legislation may be struck down as annihilating an important aspect of that fundamental right. However, we are not convinced that the impugned legislation puts a total ban upon the user of loudspeakers. From the summary that we have given of the impugned legislation, it is quite clear that the power which is conferred on the executive is not the power of imposing a total ban on the user of loudspeakers. The ban can be imposed only if the loudspeakers are intended to be used in or near any public place. Under the circumstances, in our judgment, this is not a case of a tolal prohibition, but, a case of a partial restraint and it is open to the State Government to justify it as falling under Clause (2) of Article 19.
14. Having regard to our conclusion that the right to make use of a loudspeaker is a part and parcel of the fundamental right of freedom of speech, it follows that it is for the State to justify the impugned legislation under Clause (2) of Article 19 of the Constitution. As already stated, the learned Advocate General seeks to justify the legislation on the ground that it imposes a reasonable restriction on the exercise of the fundamental right as being one in the interests of public order. It is now well known that, in order that a legislation may be justified under Clause (2), three things have got to be established, viz. (i) the provision must be a restriction; (ii) it must be a reasonable restriction; and (iii) the restriction must be in the interests of one of the things mentioned in Clause (2) -- in the present case, in the interests of public order. There is one more ingredient which must be borne in mind and which, as has been pointed out by Their Lordships of the Supreme Court in a recent judgment, to be presently mentioned, flows from the fact that the restriction is required to be reasonable and in the interests of the subjects mentioned in Clause (2), and that further ingredient is that there must be a rational nexus or tie between the restriction and the object which the legislation has in view in the interests of which the restriction is imposed. Therefore, the questions which arise for consideration are: (1) Whether the impugned legislation imposes a restriction or restrictions; (2) whether these restrictions are reasonable; (3) whether they are in the interests of public order; and (4) whether there is a nexus or a tie between the restriction and public order.
15. As regard's the first ingredient, wo have already dealt with the argument of Mr. Oza that the impugned legislation is a total ban and that it is not merely a restriction in so far as it prohibits, the user of loudspeakers. We have already rejected this argument ard we need not say anything more on that topic.
16. As regards the power conferred on the Executive to make rules for taking out licences for the user of loudspeakers, Mr. Oza's contention was the same viz. that it was not a restriction, but, il was a power which deprived the citizen of his right in toto. Mr. Oza's contention was that the requirement for a licence was an anticipatory restraint and that it was analogous to pre-censorship. He submitted that anything which requires a citizen to take the previous permission of the authorities before exercising the right of freedom of speech was a total ban on that right and rendered the right nugatory.
17. Mr. Oza was not able to cite any authority in support of his propositions that a licence was pari passu with pre-censorship and that pre-censorship amounted to a total prohibition and resulted in total deprivation of the right. In the first instance, there is a clear distinction between the requirement for a licence and the imposition of pre-censorship. When pre-censorship is imposed, it requires the citizen to submit his views to the authorities concerned as a condition precedent to its publication. When a citizen is required to take out a licence, he is not required to submit his views to the authorities prior to publication. All that he is required to do is to take out a licence before exercising the right of free speech. Therefore, it is not proper to equate the requirement of a licence wilh the demand for pre-censorship. Moreover, Mr. Oza's contention that pre-censorship is a total deprivation of the right is against authority. The Supreme Court has held in Brij Bhushan v. State of Delhi : 1950CriLJ1525 , that the imposition of pre-censorship is only a restriction on the liberty of the press. In this case, an order under Section 7, Clause (i) (a), East Punjab Public Safety Act, directing the printer, publisher and editor of an English, weekly to submit certain matters for scrutiny in duplicate, before publication, until further orders, was impugned. It is true that this order was struck down by Their Lordships as infringing the fundamental right of speech. But, it is noteworthy that the order was so struck down not on the ground that it imposed a total prohibition, but, on the ground that the authority concerned was unable to show that the pre-censorship came within the purview of Clause (2) of Article 19. In : 1SCR308 , Sections 2 and 3 of the Punjab Special Powers (Press) Act, 1956, and a notification were impugned as unconstitutional. Section 2 (1) (a) prohibited the printing and publishing of any article, report, news or any other material of any character whatsoever relating to or connected with a certain agitation, and Section 3 (1) imposed a ban against an entry and circulation of the said papers published from New Delhi. The sections and the notification were impugned on the ground that they were not merely restrictions, but, imposed total prohibition against the exercise of the fundamental right of free speech. Their Lordships negatived the contention on the ground that the entire right under Article 19(1)(a) had not been completely taken away by the notification, but that only restrictions were imposed upon the exercise of the right with reference to the publication of only articles relating to a particular topic and with reference to the circulation of papers only in a particular territory. Their Lordships, therefore, held that it was not right to say that the sections had imposed a total prohibition upon the exercise of a fundamental right. For the same reasons, we are also not in agreement with the contention of Mr. Oza that the requirement of a licence for use of loudspeakers was a total ban on the exercise of the right.
18. Before we discuss the alternative and the main argument of Mr. Oza that the exercise of the three powers of licensing, controlling and prohibiting the use of loudspeakers imposed an unreasonable restriction, we propose to dispose of two subsidiary points which were urged by Mr. Oza. Mr. Oza urged that the imposition of these three restrictions on the freedom of speech could not be justified on the ground of public order. He submitted that none of these powers related to a matter which could properly fall within the purview of the concept of public order. To dispose of this submission, it is not necessary to enter into an elaborate discussion because the matter is covered by a recent decision of Their Lordships of the Supreme Court in the case of Supdt. Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia : 1960CriLJ1002 . In this case, Their Lordships have clearly defined the expressions 'public order' and 'in the interest of'. Their Lordships have first pointed out that the expression 'public order' as used in the Indian Constitution has a narrower connotation than the expression 'public order' as used in the American and English constitutional laws. Their Lordships have pointed out that this conclusion follows from the history of the circumstances in which Clause (2) of Article 19 was amended by the Constitution (First Amendment) Act 1951. At page 639, Their Lordships say that the wide concept of 'public order' as used in Englhh and American laws has been split up in Article 19(2) under several heads. They have pointed out that some of the topics mentioned in Clause (2) would, under the American and the English laws, come within the concept of 'public order'; but that, having regard to the fact that these subjects have also been separately mentioned in the same clause, they cannot be included in the expression 'public order'. Ultimately, Their Lordships have held that, viewed in the light of the amendment and the aforesaid considerations, the expression 'public order' was used in a limited sense and that 'it can be postulated that 'public order' is synonymous with public peace, safety and tranquillity'. The learned Advocate General, however, contended that, if the judgment was read as a whole, it was not correct to say that Their Lordships had intended to confine the definition only to those three terms 'public peace', 'public safety', and 'public tranquillity'. The learned Advocate General contended that the correct reading of the judgment would be that the expression 'public order' included all that was understood to be so under the English and the American laws except those subjects which had been specifically mentioned in Article 19, Clause (2) and which, as Their Lordships have pointed out in paragraph 11 of the judgment, were also included in the wider concept recognised by the American and English laws. Therefore, the learned Advocate General contended that the expression 'public order' as used in Article 19(2) included the residuum of all that was included in the American and the English laws except those topics which were specifically included in Clause (2). In our judgment, it is not necessary, at this stage, to consider the validity of this argument. If necessary, we would consider the validity of this argument if we happen to come to the conclusion that the various relevant matters dealt with by the Act in reference to the impugned part of the section do not come within any of the three topics of public peace, safety and tranquillity which have been held by Their Lordships as included in the expression 'public order'. We propose to deal separately with the question as to whether the relevant topics are or are not included within any of the aforesaid three expressions. In the same decision, Their Lordships have also construed the expression 'in the interest of', and, after mentioning the distinction which was pointed out in two earlier decisions of the Supremo Court, contrasting the expression 'for the maintenance of' with the expression 'in the interest of' on the basis of which an argument was sought to be advanced that, even a tendency, however remote, to disturb the public order, would be covered by the expression 'in the interest of', Their Lordships have observed that the distinction between the two expressions did not ignore the necessity for an intimate connection between the subject dealt with by the Act and the public order sought to be maintained bv the same. Therefore, this' decision is also an authority for the proposition that, in order to justify a piece of legislation on the ground of its being 'in the interest of public order', there must be a proximate connection between the restriction and the fulfilment of the public order and that a remote or a fanciful connection between the two cannot sustain its validity.
19. Mr. Oza spun an argument out of the distinction made by Their Lordships between the expression 'maintenance of' and the expression 'in the interest of'. The preamble of the Act states that it was necessary to consolidate and amend the law relating to the exercise of powers and performance of functions by the State Government and by the members of the Police force 'for the maintenance of public order'. Mr. Oza contended that the three powers of licensing, controlling and prohibiting, though they might be necessary in the interest of public order, were not so necessary for the maintenance thereof and, therefore, the impugned legislation must be struck down. In our opinion, the approach of Mr. Oza is wholly unsustainable. In the first instance, it is wrong to construe an expression used in an Act by reference to the construction placed on the same expression in the Constitution and used in it in a different context. Secondly, it is improper to judge of the constitutionality of the impugned provision by reference only to the recital in the preamble of the Act in which the impugned provision is contained. The two things are entirely different. The argument can be relevant only if the contention is that the impugned provision goes outside the scope of the preamble. But, as is well known, even such a contention is wholly untenable. A section has got to be construed on the basis of the language used therein and the scope of the section cannot be cut down simply because the scope goes beyond the scope of the preamble. Moreover, Mr. Oza is not right in saying that the object of the Act is only to secure the maintenance of public order. The preamble also further states that the Acr is enacted because it is necessary to provide for certain other purposes hereinafter appearing' and, as we shall presently show, those other provisions are wide enough to include objects, the achievement of which render them as being in the interest of public order. For the reasons which we shall record hereafter when dealing with the contention of Mr. Oza that the restriction is unreasonable, we have come to the conclusion that the powers relating to the licensing, controlling and prohibition of loudspeakers have been introduced by the Legislature in the interest of public order.
20. That brings us to the main contention of Mr. Oza that, in any case, the restrictions are unreasonable. The exact meaning and scope of the word 'unreasonable' as used in Clause (2) has been the subject of a series of decisions of the Supreme Court and meaning has now been definitely ascertained and a number of tests have been laid down for ascertainment of the scope of the word. The main task which now requires to be done, in a majority of the cases, is to ascertain whether the impugned restriction satisfies the test or tests which Their Lordships have laid down in those decisions. The main question, therefore, which arises is one of the application of those tesis. The principles governing the tests are not and ought not to be in dispute. Of course, it cannot be said that no new test is ever likely to arise for consideration in future. But, it can be safely stated that, if such an occasion arises at all, it would be a rare occasion. The classical pronouncement on the subject of the reasonableness of a restriction, on the basis of which a majority of the subsequent decisions has been recorded, is to be found in the judgment of His Lordship Patan-jali Shastri, C. J. in State of Madras v. V. G. Row : 1952CriLJ966 , wherein His Wardship has formulated the tests in the following words:
'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'.
21. The main ground on which Mr. Oza Attached the reasonableness of the impugned legislation and the rules was that they conferred an arbitrary, naked and untrammelled power on the Executive. It will conduce to clarity if the submissions of Mr. Oza are mentioned separately in relation to the three powers contained in the impugned legislation. In respect of the power of licensing, he submitted that the ower to make a rule or an order for licensing was conferred upon a subordinate officer of the State Government and the impugned part of the section did not lay down either any policy nor did it enunciate any principles on the basis of which that power was to be exercised by the executive officers. He submitted that the same infirmities were also to be found in respect of the power to make rule or order for controlling the use of a loudspeaker. In respect of the power for making rule or order for prohibiting the use of a loudspeaker, he submitted that, though the impugned clause mentioned the objectives, to achieve which the power was to be exercised, it did not give clear and unequivocal guidance to the executive as to under what circumstances that power was to be exercised. As regards the rules, the argument was mainly based on the ground that the rules did not lay down the conditions or the circumstances in which the executive officers were bound to grant licences or to refuse them. He argued that the rules left it to the sweet pleasure of the executive officers whether a licence for the use of a loudspeaker should or should not be granted to a citizen. He also submitted that the officers were given powers even to revoke a licence after having granted one and that such a power was altogether uncontrolled. This was the main theme of Mr. Oza and constituted the main argument in support of the petition. The topic is important on more than one branch of the attack launched in this petition. The topic has relevance, not only on the matter of reasonableness, but, also on the matter of delegated legislation. The topic may have some relevance, in some cases, also on the question of reasonable classification. The interconnection of this question with the above three matters is pointed out by Their Lordships of the Supreme Court in Jyoti Pershad v. Administrator for the Union Territory of Delhi : 2SCR125 . However, Mr. Oza did not rely upon this alleged infirmity in support of his attack under Article 14. The aforesaid aspect was pressed into service only for the purpose of showing that the restriction was unreasonable or that the legislation on the subject offended the principle governing delegated legislation. In support of the above submissions, great reliance was placed by Mr. Oza on the case of Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh : 1SCR803 . In this case, it was held that a law or order which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable. In this case, Clauses 3 (2) (b) and 4 (3) of the Uttar Pradesh Coal Control Order, 1953, were held to be void. Clause 3 (2) (b) conferred power upon the State Controller to exempt any person or class of persons from the provisions of Clause 3 (1) and Clause 4 (3) conferred power upon the licensing authority to grant or refuse to grant, renew or refuse to renew a licence and to suspend, cancel, revoke or modify any licence or any terms thereof. It was held that Clause 3 (1) conferred an unrestricted power on the State Controller to make exemptions and that Clause 4 (3) imposed an unreasonable restriction upon the freedom of trade and business. In striking down Clause 3 (1), Their Lordships pointed out that the Control Order nowhere indicated what the grounds tor exemption were, nor were any rules framed on that point. In striking down Clause 4 (3), Their Lordships pointed out that the only restraint which was placed upon the executive for grant or refusal of licences and making other orders was to give reasons and that in Their Lordships' opinion was not enough. Their Lordships also pointed out that no rules were framed and no directions given on these matters to regulate of to guide the discretion of the licensing authority and that the order committed to the unrestrained will of a single individual the power to grant, withhold or cancel licences in any way he chose and that there was nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Mr. Oza contended that this decision of Their Lordships was a complete answer to the contention of the State Government that the impugned provisions were reasonable The learned Advocate General, on the other hand, contended that, though the impugned legislation itself did not lay down the principles on the basis of which the powers were to be exercised in the matter of licensing and controlling, that, in itself, was not an impediment if the State Government could show that the discretion of the officers concerned was controlled and necessary guidance given to them by other parts of the Act. He submitted that, in deciding this question, the Court was by no means bound to confine its attention only on the impugned part of the section or the rules and to shut its eyes on other parts of the said legislation which threw light on the same subject. In support of this contention, the learned Advocate General relied upon Harishankar Bagla v. State of Madhya Pradesh : 1954CriLJ1322 . In this case, the constitutionality of the Cotton Textiles (Control of Movement) Order (1948) was challenged. By Clause 3 thereof, the Central Government was empowered to provide by order for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein. In this case, for striking down the impugned Clause 3 of the Cotton Textiles (Control of Movement) Order, strong reliance was placed upon Dwarka Prasad's case : 1SCR803 , already referred to. In repelling the contentions, Their Lordships at page 468 observed as follows:
'The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief'.
The subsequent decisions of Their Lordships have not only approved of the principle that the policy of the Legislature may provide sufficient guidance to the executive, but they have pointed out that it is not necessary that the policy should be laid down in the impugned section itself. They have pointed out that guidance may be provided by the other provisions of the Act in which the impugned legislation is contained. In : 2SCR125 , the constitutionality of Section 19 of Slum Areas (Improvement and Clearance) Act (1955) was challenged, inter alia, on the ground that the restrictions imposed by the section were not reasonable within the meaning of Article 19(5). That section was, inter alia, impugned on the ground that the power vested in the competent authority to refuse permission to execute a decree for eviction was not reasonable inasmuch as, as the section stood, the power could be exercised by the executive at its sweet will and pleasure. In repelling this argument, Their Lordships made the following observations at page 1612:
'If counsel were right in his submission that the petitioner's right to obtain possession of his building rested on the 'sweet will and pleasure of the competent authority' there could be some substance in the argument, But, as we had already had occasion to point out, it is not at the 'sweet will and pleasure' of the competent authority that permission to evict could be granted or refused, but, on principles gatherable from the enactment, as explained earlier'.
And for the purpose of gathering the principles on which the Act was to be administered. Their Lordships examined several provisions of the Areas (Improvement and Clearance) Act. On the same lines, the learned Advocate General asked us to examine, not merely the preamble, but, several provisions of the Act, which we shall presently refer to.
22. The learned Advocate General contended that the impugned clause itself gave guidance to the executive officers under what circumstances a licence was to be refused and he submitted that both the preamble and a number of sections of the Act revealed the policy of the Act and gave sufficient guidance to the executive officers, on the basis of which the rules and orders for licensing and controlling the use of loudspeakers were to be made.
23. In determining the question of reasonableness, as pointed out in Jyoti Pershad's case : 1982CriLJ423 it must be borne in mind that the criteria for determining the degree of restriction which Should be considered reasonable, are by no means fixed or static, but, obviously, they vary from time to time and must be related to the adjustments necessary to solve problems which the society faces from time to time. It must also be borne in mind, as pointed out by Patanjali Shastri, C.J., in Row's case : 1952CriLJ966 , that the test of reasonableness 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. All the tests may not apply in each and every case. All the tests may not have an equal emphasis or relevance in each and every case. The question of reasonableness must, therefore, necessarily be decided with reference to the facts of each case.
24. In considering the question of reasonableness, regard must be had to the nature of the tight over which restriction is being imposed. Undoubtedly, the right which we are considering and of which the petitioner seeks protection is a very important and a precious right. The right claimed is the very basis of democratic society. If one were asked to choose which of the fundamental rights, guaranteed by the Constitution, one would cherish the most, probably, in a nation which values the democratic form of Government and which has set as its goal the achievement of justice, liberty, equality and fraternity as its goal, one would say that it would be the fundamental right of free speech. Therefore, any encroachment or abridgment of a right of this particular importance must be properly scrutinized and, in case of doubt, it would be proper to strike it down rather than to uphold it. But, at the same tune, whilst considering this particular topic, it is important to bear in mind that ihe fundamental right of freedom of speech can thrive and does thrive only in an ordered society. It thrives only when the State is strong and able to protect that particular fundamental right. Therefore, it is necessary that the State must be protected from external aggression and internal disorder. If one of these two safeguards is jeopardised, it must necessarily jeopardize the fundamental right itself. It must also be borne in mind that if the right is to be exercised in a free society, then, in the interests of the exercise of the right itself, it is necessary that restrictions must be placed thereon in order that everyone of the citizens may have the advantage of the fundamental right. If every citizen were to insist upon the exercise of that right, irrespective of the same right of the other citizens, it is quite obvious that the right would reduce itself into a licence and may lead to social chaos. It is because of these considerations that the founding fathers, in their wisdom, have incorporated, in Clause (2), the objects, in the interests of which restrictions can be imposed. It must be realised that the reason why the founding fathers have done this is not so much to curtail the amplitude of that right, but that that right may be exercised by each and every citizen of the State. Thus, in order that the freedom may be exercised by all and everyone of the citizens, the maintenance of pubiic order is of considerable importance. It is also obvious that, when people try to take advantage of mechanical devices in the exercise of the right, conflicts of interest arc bound to arise. If in the exercise of the right of free speech, all or a great number of citizens were to gather together at one spot and everyone of them were to make use of a loudspeaker, it is quite obvious that there would be a babble of noises and not only that none of them would be able to exercise the right of speech, but there may be clash between individuals and groups; it may distract the pedestrians and motorists and cause a nuisance to the locality which may lead to a breach of peace. In order to prevent such a situation arising, it is obvious that some restrictions must be placed on the use of such mechanical devices so that the right may be properly and equitably exercised and the social conflicts arising out of the simultaneous user of a number of loudspeakers may be avoided or minimised. Therefore, though the right is a precious right, which requires to be very jealously guarded, if any restriction is placed on the exercise of the right, in order that the maximum use may be made of that right by the totality of the citizens and to avoid social conflicts, that restriction must be regarded to be reasonable and must be upheld. It follows from this that, if power is conferred upon the executive by the legislature for the prevention of such conflicts, dislocations and distractions, the power must be regarded to be necessary to preserve public order. If proper safeguards are imposed which would ensure that the power is exercised in the interest of the society as a whole, without one section of the population being preferred at the cost of the other, then, ii cannot be said that the power so conferred is an arbitrary power. However, at the same time, one must see that the power of imposing the restriction is not placed at the absolute disposal and to the unrestricted will of an executive officer, however highly placed the officer may be.
25. Examining the impugned clause first, it is crystal clear that the Legislature has not conferred an arbitrary power in the hands of the executive in the matter of prohibiting the use of loudspeakers. In respect of that power, the Legislature has clearly stated that it is to be exercised by the officer concerned 'in order to prevent-obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers of the locality' It follows from this provision that, in the matter of the grant of a licence, the Legislature has clearly indicated that normally a licence is to be issued to a person, unless the prohibition of the user of loudspeakers is justified on any of the aforesaid grounds mentioned in the clause itself. The requirement of a licence, in our judgment, appears to be necessary in the interests of the maintenance and preservation of public order, without which no democracy can ever thrive. In this connection, it is important to notice that the licence is required not for the use of the loudspeaker at private places, but, licence is required to be taken out only if it is to be used in or near a public place. These are not the only limitations which are imposed by the section. There are other importantsafeguards which have been imposed by the sectionwhich control the action of the executive officersin the matter of the framing of rules. If a restriction is sought to be placed by a rule, then, thesection states that the rule must be previouslypublished and, secondly, that rule must receive theprevious sanction of the State Government. Thesection further requires that the proposed rulesshould be given the greatest publicity. It followsfrom these provisions that, if any particular ruleis arbitrarily sought to be put into force, then,the citizens have the right of carrying the matterfurther up to the State Government. Moreover,it is quite clear that the officers are not left tothemselves in the matter of the administration ofthe section and the rules. If they take any actionunder the section or the rules, then, that actionalso is subject to the supervision and control ofthe State Government. Therefore, the provisionsof the clause relating to licensing, controlling andprohibiting the user of loudspeakers and the rulesare, made subject to important limitations and allaction thereunder is under the control of the StateGovernment. It is true ihat the mere fact thatthe matter is placed under the control and supervision of the State Government does not necessarily mean that the restriction is a reasonable one.However, that is certainly one of the factors tobe taken into account. Morevover, as we shallpresently point out an aspect which is very relevantWhen considering the objection on the ground ofdelegated legislation, the matter itself is such thatit is impossible that the Legislature itself couldhave laid down definite and precise rules as tounder what circumstances licensing, controlling andprohibiting the use of a loudspeaker should bepermitted or should be refused. The matter is ofsuch a nature that it is impossible for the Legislature to lay down rules on this subject which wouldbe of universal application. The exercise of suchpowers and the imposition of conditions mustdiffer, not only from locality to locality, but mustdiffer from time to time in the same locality. Underthe circumstances, the exercise of a power of thisnature must necessarily be left to those peoplewho have the knowledge of local conditions in which the right to make use of the loudspeakerhas got to be exercised.
26. Moreover, a study of the various provisions of the Bombay Police Act reveals the policy of the Legislature and the purpose for which the Act is enacted and, as we have already pointed out, there is authority of the Supreme Court which has clcarly_ laid down that if a power is given to an executive officer, the power has necessarily to be exercised by the officer in enforcement of that particular policy. It is conceivable that a partial or a corrupt official may in a particular case ignore the policy of the Act and may so use his power that, on a particular occasion, he may, on extraneous considerations, deprive the citizen of the right of the use of a loudspeaker. But, as has been pointed out in : 1954CriLJ1322 a restriction cannot be held to be unreasonable on the ground that the power may be exercised by an officer mala fides. As pointed out in the same case, in such a case, the arms of the Court are strong enough to deal with such a refractory officer.
27. We have already referred to the preamble of the Act which clearly mentions that, inter alia, the Act has been passed for the maintenance of public order .
28. Section 2, Sub-section (13) of the Act says that
'public place' includes the foreshore, the precincts of every public building or monument.and all places accessible to the public for drawing water, washing or bathing or for the purpose ofrecreation'.
Sub-section (15) says that,
' 'street' includes any highway, bridge, way overa causeway, viaduct arch, quay or wharf or anyroad, lane, footway, square. Court, alley or passageaccessible to the public, whether a thoroughfareor not'.
By Section 3, a single Police Force is created for the whole of the State of Gujarat. Then comes Chapter IV which is headed 'Police Regulations'. Sections 33 37 38 and 41 are important sections in this Chapter which throw light on the policy of the Legislature and indicate the powers conferred on the police authorities, the purpose for which those powers are conferred and the limitations imposed on the exercise of those powers. The marginal note of Section 33 indicates that the section has been enacted for regulation of traffic and for preservation of order in public places. Section 33 Clause (b) empowers the police authorities to make regulations for control of traffic of all kinds in streets and public places. Clause (c) provides for regulating the conditions under which vehicles may remain standing in streets and public places and the use of such places as halting stations for vehicles and cattle. Clause (n) empowers the police authorities to make rules or orders for licensing, controlling, and, in certain circumstances, prohibiting the playing of music, the beating of drums and musical and noisy instruments in or near streets or public places. Clause (o) empowers the same authorities to regulate the conduct of and behaviour or action of persons constituting assemblies and processions on or along the streets and prescribing, in the case of processions, the routes by which, the order in which, and the times at which, the same may pass. We have already reproduced above Clause (r). Clause (w) empowers the same authorities to make rules for licensing or controlling places of public amusement or entertainment and for prohibiting the giving of such places in order to prevent obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity. Clause (wa), inter alia, empowers the same authorities to license or control the musical and other similar performances -for public amusement including 'melas' and 'tamashas' and for regulating in the interest of public order decency or morality or in the interest of the general public, the employment of artists and the conduct of the artists and the audience at such performances. Section 37 is enacted to confer powers upon police authorities to prohibit certain acts for prevention of disorder -- acts such as carrying of arms and other articles which are capable of being used for causing physical violence or explosives, the public utterances of cries, singing of songs, playing of music, delivery of harangues, the use of gestures or mimetic representations, etc. Section 38 empowers the same authorities to prohibit the continuance of musical sound or noise it it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury pr risk of annoyance, disturbance, discomfort or injury to the public or to any persons who dwell or occupy property in the vicinity. Section 41 empowers certain police officers to provide against disorder at places of amusement and public meetinES. Chapter VI deals with the executive powers and duties of the police. One of such powers is dealt with in Section 67. It enacts that it shall be the duty of a police officer to regulate and control the traffic in the streets, prevent obstructions therein and, to the best of his ability, to prevent the infraction of rules and orders lawfully made for observance by the public in or near public places and streets and to keep order in streets and other places of public resort and to regulate resort to such places. Section 68 casts a duty upon all persons to conform to the reasonable directions qt a police officer given in fulfilment of any of his duties under this Act. Chapter VII deals with offences and punishments. Section 131 penalises contravention of rules and orders made under Section 33 or any of the conditions of a licence issued under such rules or orders. These provisions give a sufficiently clear indication of the policy underlying the legislation. They clearly bring out that the main object of the Act is to create a police force for preservation of public peace and order and to ensure that prompt steps are taken for quelling public disorder whenever and wherever it occurs in the State. In order to carry out this policy, powers have been conferred and duties imposed on the police force and these powers and duties have been specified in details and hedged in with qualifications and safeguards wherever they have been found to be necessary by the Legislature. The powers which have been conferred under Section 33 are all calculated to empower some of the highest authorities in the State to make rules or pass orders for regulating traffic and for preserving public order and tranquillity. But, the powers are not untrammelled. The section provides certain safeguards and imposes certain conditions in the matter of the exercise of these powers. The rules and orders must not be inconsistent with the Act- The rules require the previous publication in the Government Gazette and previous sanction of the State Government. Therefore, it is quite obvious that the power which has been conferred by the Legislature in the impugned clause is not an arbitrary or untrammelled power. The power of making a rule or order for licensing or controlling the use of a loudspeaker is to be exercised only in so far as the user is to be in or near any public place. There is nothing in the clause or in the rules which indicates that a licence can be arbitrarily refused. The normal rule appears to be that a licence is to be given for the use of a loudspeaker. However, when the licence is given, the use of the loudspeaker is subject to the conditions laid down therein and, in our judgment, the conditions which have been imposed by the rules are reasonable and have been designed with a view to preserve public peace and to prevent public disorder. No separate rules appear to have been made for controlling the use of a loudspeaker. The rules for licence include, however, rules for controlling the use of a loudspeaker. That the licence cannot be arbitrarily refused is also quite clear from the fact that, in the licensing rules, the use of a loudspeaker is prohibited only in order to prevent obstruction, inconvenience, annoyance, risk, danger or damage to the residents or the passengers in the vicinity. Thus the extreme power of prohibiting the user of loudspeakers is also not a naked and arbitrary power, but, it is hedged in by a few conditions which indicate the policy governing the exercise of that power. The objects which are to be achieved by making such a rule are clearly mentioned. As we have already pointed out these objects can best be achieved by the Legislature by leaving the powers in the hands of those on whom the duty of preservation of the public order is imposed from day to day. It is impossible for the Legislature to envisage, in advance, what rules or orders will be required to be gassed in different parts of the State for preservation of public peace and order. It is unreasonable to expect that the Legislature could have brought out in a single piece of legislation, all the diverse conditions and circumstances in which such powers will be required to be exercised in the interests of peace and order. If the Legislature were to attempt to do this, then, the exercise of such power itself is bound to be arbitrary and endanger public rights and may, not only fail to achieve tbe objects, but, may endanger the public peace and order itself. It is unreasonable to expect the Legislature, to hit upon, for the preservation of public peace and order, one single or a series of magic formulae or universal panaceas which would deal with all circumstances and situations which can arise in actual life, in which the exercise of such a power could become necessary. The task of preserving public peace and order must necessarily be left to the local officers, so that they can introduce in their regulations and orders such variations as the local conditions and circumstances may demand in order that these may cause the least inconvenience or annoyance or risk to the public and the timing, duration and the locality of the restrictions may be properly and equitably adjusted. Under the circumstances, we cannot uphold the contention of Mr. Oza that the impugned clause conferred an arbitrary or naked or untrammelled power on the officers concerned. In this connection, it is important to notice that the officer who has been empowered to make rule a and orders, in the case of big cities, is the highest Police Officer and at other places, is the highest executive officer. The qualifications, the position and the status of the officers are such that thev can be reasonably expected to discharge the duty on the spot more efficiently, and promptly, than the State Government, sitting far away from the local scene, can ever hope to do.
29. The aforesaid discussion must necessarily lead to the conclusion that the three powers are conferred on the authorities by the impugned clause for regulating traffic upon public streets and to maintain public peace and tranquillity. Under the circumstances, in our judgment, those powers relate to the public order within the meaning of Clause (2) of Article 19 of the Constitution, as denned by Their Lordships of the Supreme Court in : 1960CriLJ1002 . In our judgment, those powers constitute reasonable restrictions on the exercise of the fundamental right. The restrictions are reasonable so far as the power of prohibition is concerned inasmuch as those powers can be exercised only for prevention of obstruction, annoyance, risk, danger or damage to the residents or passengers in the vicinity. It is quite obvious that, if the fundamental right is permitted to be exercised in such a way as would lead to any of these results. It will constitute the greatest menace to public order. The only object on which an attack can be launched is the object of prevention of inconvenience on which the use of a loudspeaker may be prohibited. However, Mr. Oza, in the course of his arguments, did not separately mention this topic as a special ground of attack and did not contend that this object would render the restriction, unreasonable. We do not, however, wish to express any definite opinion on this part of the impugned clause. We do not do so because Mr. Oza lias not raised a separate contention in regard thereto and, because, it is not necessary in order to dispose of the present petition to discuss the constitutionality of that part of the clause. It is not necessary to consider that part of the clause separately, because the constitutionality of the clause has been solely attacked on account of the impugned order and the impugned order is not based on the ground of inconvenience to the residents or the passengers in the vicinity. It is based solely on the ground that the proposed user would cause an obstruction to the traffic. Therefore, we do not propose to express any final opinion as to whether the clause is or is not constitutional in so far as it empowers the authorities to prohibit the user of loudspeakers on the ground that it would be inconvenient to the residents or the passengers in the vicinity. But, so far as the other grounds are concerned, we have no doubt whatsoever that those grounds have a direct nexus or connection with the topic of public order. Under the circumstances, there is no doubt that, in so far as the clause empowers the authorities to prohibit the user of loudspeakers on the aforesaid-grounds, those grounds are calculated and designed to prevent public disorder and to achieve preservation of public peace and, therefore, constitute reasonable restrictions on the fundamental right.
30. But, Mr. Oza contended that, even if this be so, there is no direct connection between the maintenance and preservation of public order and the power of licensing. Mr. Oza did not address us separately so far as the power of control was concerned. In our judgment, both these powers are necessary in order that the power of prohibition may be effectually exercised. If the power of licensing and controlling were not to be conferred, it is quite obvious that the authorities, charged with the maintenance of law and order would come on the stage only for the preservation of public peace and order after public peace has been broken and public disorder has actually taken place. Prevention of public disorder is as important, if not more, in a State, much more so in a democratic State, than restoration of order after disorder has taken place. In order that disorder may not take place on account of the user of loudspeakers, it is quite obvious that the authorities concerned must have previous knowledge about the persons who are to make use of loudspeakers, and the times and the places it which they are to be used. This previous knowledge can be acquired only if a system of licensing is introduced, so that, when an application for licence comes to be made, the authorities may come to know beforehand who intends to make use of the loudspeaker, at what time and place, and under what circumstances. This would give the authorities a chance to consider whether any disturbance of public peace or tranquillity is or is not likely to arise by the use of the loudspeaker at a particular time and place, and, if there is any such danger, what measures they must take for the preservation of public peace and order. Then it will be the duty of the officer to consider whether he should prohibit the use of the loudspeakers absolutely or whether he should only control the same. Under the circumstances, in our judgment, not only the power or prohibition, but the other two powers of licensing and controlling arc also necessary in the interests of public peace and order. In this view of the matter, in our judgment, the impugned clause and the rules, though they are restrictions, constitute reasonable restrictions in the interests of public order and are justified under Clause (2) of Article 19 of the Constitution.
31. That brings us to the actual order passed by the second respondent on March 8th, 1961, the second respondent has stated that he does not grant the permission as the user of a loudspeaker would cause an obstruction to the traffic. In his affidavit, the second respondent has explained in detail the reasons why he has come to the above conclusion. In paragraph 7, the second respondent has stated that Manek Chowk Tilak Maidan is a small open place; that it is a one-way street, leading to a vegetable market and other important places; that only a few steps away from that place, there are several shops; that, after the closure of these shops, 16 small shops for selling milk, eatables, etc. are established on the 'Otlas' of the shop premises in which business is conducted upto 12.00 midnight; that, because of these activities, the locality remains over-crowded for a greater part of the day and the night; that there are residential localities on both the sides of the place and that, if loudspeakers were to be permitted at such a place, it would result in inconvenience ant! annoyance to the residents of the locality as well as the passengers on the road. The affidavit further states that, till late hours of the night, there is heavy vehicular traffic and that, if loudspeakers were to be permitted, it would result in immediate and present danger to the public at large, and that, such user would cause distractions which would bo dangerous to the traffic at all hours and would cause annoyance to the residents around the locality. In paragraph 8, the second respondent has explained the policy on which permission to make use of loudspeakers was being granted or refused and he has explained how that policy has been reviewed from time to time. He has also explained the factors which are being taken into consideration for passing such orders, such factors being the proximity to residential locality, business premises, miscellaneous shops, the congestion of traffic and distraction to the passengers on the road It is not the case of the petitioner that the second respondent had failed to apply his mind betore refusing the permission. Nor is it his case that he bad been discriminated against or that the second respondent was acting mala rides. Though Mr. Oza did contend that the powers which were conferred on the authorities were arbitrary, he did not contend that, in the particular instance, the second respondent had acted in an arbitrary fashion, so that his action requires to be reviewed by this Court on the ground that the second respondent was making a mala fide and arbitrary use of a power which was otherwise legally conferred on him.
32. That brings us to the second ground of attack by Mr. Oza which is related to a part of the attack under Article 19 and that attack is that the Legislature has delegated its legislative powers to the two officers by conferring upon them the power to make rules for the licence, control and prohibition of user of loudspeakers. As regards this objection on the ground of delegated authority, the principles are also now well settled. In fact, the principles are not in dispute. The question which Mr. Oza raised was as to whether these principles have been complied with in the case. We need not refer to the earlier decisions of Their Lordships of the Supreme Court on this subject. We will rest content by noting in this judgment only two recent decisions of that Court. In : 1960CriLJ671 , Their Lordships pointed out the distinction between conditional legislation and delegated legislation and, whilst pointing put the characteristics of conditional legislation, Their Lordships also made observations regarding delegated legislation which summarize the law on the subject. We will quote the following passages from page 566 of the report:
'The dislinction between conditional legislation and delegated legislation is this that, in the former, the delegate's power is that of determining when a legislatively declared rule of conduct shall become effective; Hampton and Co. v. United States, (1927) 276 US 3_94, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied foy the administrative authority. In other words, by delegated legislation, the delegate complete the legislation by supplying details within the limits prescribed by the statute and, to the case of conditional legislation, the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it it is to extend.
X X X X'
Thus when the delegate is given the power of making rules and regulations in order to fill in thedetails to carry but and subserve the purposes ofthe legislation the manner in which the requirements of the statute are to be met and the righttherein created to be enjoyed it is an exercise ofdelegated legislation. But when the legislation iscomplete in itself and the legislature has itsellmade the law and the onlv function left to thedelegate is to apply the law to an area or to determine the time and manner of carrying it intoeffect, it is conditional legislation. To put it in the language of another American case:
'To assert that a law is less than a law because it is made to depend upon a future event or act is to rob the legislature of the powei to act wisely for the public welfare whenever a law n passed relating to a state of affairs not yet developed, or the things future and impossible to fulty know''.
32A. The limits of the delegation were furtherpointed out in these words :
'The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and must therefore be subject of enquiry and determination outside the hall of legislature.
But the discretion should not be so wide that Itis impossible to discern its limits. There must instead be definite boundaries within which thipowers of the administrative authority are exercisable. Delegation should not be so indefiniteas to amount to an abdication of the legislativefunction. Schwarlz American Administrative Law,page 21'.
In Vasantlal Maganbhai v. State of Bombay : 1978CriLJ1281 , Their Lordships made the followingobservations on this subject:
'It is now well established that the power of delegation is a constituent element of the legislative power as a whole, and in modern limes when the legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their Acts: The extent to which such delegation is permissible is also now well settled. The legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle, and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf'.
Now, it is not the contention of Mr. Oza that the Legislature had delegated essential legislative powers to the twp officers mentioned above. His arguments on this topic may be summarized as follows: (i) that the legislation did not lay down any policy, nor did it enunciate any principles on the basis of which the powers were to be exercised by those officers; (ii) that the powers which were actually conferred were uncontrolled naked and arbitrary; (iii) that the rules left to the sweet pleasure of the executive officers whether the licence for the use of a loudspeaker should or should not be granted to a citizen; and (iv) that they gave naked powers to the officers to revoke licence after one was granted. We have already considered all these arguments in so far as they were advanced in support of the plea that the restrictions imposed by the legislation on the fundamental right of freedom of speech were unreasonable. Therefore, it is not necessary for us to discuss the same points over again. For the reasons which we have already recorded in the previous part of the judgment, we find that there is no merit in any of these contentions of Mr. Oza. Therefore, the challenge on the ground of delegated legislation must also fall.
33. The challenge under Article 14 of the Constitution was on a very limited ground. The contention was that the conferment of powers upon District Magistrates and the Police Commissioners of making rules and passing orders would result in different sets of rules and orders coming into existence in different localities of the State, So that, on the same topic, there would be a series of rules and orders which would give different directions to the citizens residing in different localities. It was contended that this would be denying to the citizens equality before the law or equal protection of the laws within the territory of India. It was contended that there was no reasonable classification which would justify the conferment oi powers upon different officers in different localities. We have no hesitation in rejecting this argument. It is now well settled that classification on the basis of geographical limits would be a reasonable classification. In the present case, I in our judgment, not only is it convenient that the executive officers operating in different localities must each be given a separate power to make j rules on the subject of prevention of public disorder and preservation of public peace, but, as already pointed out by us in a previous part of the judgment, in order that the rules and the orders may be varied to suit local conditions and to meet local challenge, it is necessary that such powers should be given to the officers on the spot: In our judgment, therefore, the classification is reasonable on the grounds given by us whilst discussing the validity of the submissions made for challenging the impugned legislation as being violative of Article 19 of the Constitution.
34. In our judgment, there is also no merit in the contention that the seizure of the microphone violated the provision contained in Article 31 of the Constitution. Clause (1) of the Article provides that no person shall be deprived of the property save by authority of law. In the first instance, in our judgment, it is not correct to say that the petitioner was deprived of the microphone. The microphone has not been confiscated by respondent No. 3. It has only been seized in order that it may be available as a piece of evidence at the time of the trial of the petitioner for the breach of the impugned rules. Now, Section 64, Clause (b) of the Act casts a duty upon every police officer to obtain, to the best of his ability, intelligence concerning the commission of cognizable offences or designs to commit such offences, and to lay such information and to take such other steps, consistent with law and with the orders of his superiors as shall be best calculated to bring offenders to justice or to prevent the commission of cognizable and within his view of non-cognizable offences. There is no doubt that, when the petitioner was making use of the microphone at the meeting without a licence and when the respondent No. 3 came on the scene, the petitioner committed an offence within the view of respondent No. 3 which offence is punishable under Section 131, Clause (a) of the Act. Therefore, it became the duty of that officer to take steps to bring the petitioner to justice and to prevent the continuance of the offence. It is quite clear that, in order to bring home the offence, the microphone would be an important piece of evidence at the time of the trial and seizure thereof was necessary to prevent the continuance of the offence. Under Section 68 of the Act, the petitioner was bound to conform to the reasonable directions of respondent No. 2 given in fulfilment of his duties under the Act. The record shows that a request was made to the petitioner not to make use of the mike and that the petitioner refused to carry out the request. Under Section 82, Sub-section (1), Clause (b), a police officer is entitled to take temporary charge of all property found lying in a street if the owner or person in charge of such property on being directed to remove the same, refuses or omits to do so. Under the circumstances, in our judgment, there was authority of law in the respondent No. 3 to take temporary charge of the article in order that the same may be produced before a Magistrate as a piece of evidence and in order to prevent the petitioner from continuing tc commit the aforesaid offence with the aid of the mike.
35. Mr. Oza cited a number of American cases in support of his proposition that the impugned legislation and the rule offended the fundamental right of free speech and expression. We have not made any reference to these cases in the course of this judgment uptil now. We purposely did not do so because, in our judgment, there is (are ?) ample Indian authorities on the subject, on the basis of which a decision can be recorded in the present case. But, we will mention only two of the American cases on which Mr. Oza placed special reliance and passages from which were read by him extensively before us.
36. The first case is Samuel Saia v. People of the State of New York, (1947) 334 U.S. 558 : 92 Law Ed 1574. In this case, the validity of a municipal ordinance which prohibited the use of amplifying devices casting sound upon streets and public places, except with the permission of the chief of police, without prescribing standards for the exercise of his discretion, was challenged. The Court consisting of nine Judges expressed a divided opinion; five Judges held that the ordinance violated the constitutional right of free speech; four Judges expressed their dissent. Douglas, J., who formulated the opinion of the majority, observed (1) that the ordinance established a previous restraint on the right of free speech in violation of the First Amendment which was protected by the Fourteenth Amendment against State action; (2) that under the ordinance one had to get a permit from the chief of police to use a loudspeaker, or an amplifier; (3) that the ordinance did not prescribe any standards for the exercise of the discretion of the police chief; and (4) that the ordinance was not narrowly drawn to regulate the hours or places of use of loudspeakers, or the volume of sound (the decibels) to which they must be adjusted. On this construction of the ordinance, the majority held that the case stood on the same footing as the case of Cantwell v. Connecticut, (1939) 310 US 296 : 84 Law Ed 1213, wherein the Court had sfruck down an ordinance reciuiring a licence to be obtained from a public official who was given the discretion to decide what was religious literature in order to distribute such literature; that this, case was of the same kind as (1937) 303 US 444 : 82 Law Ed 949, in which it was held that an ordinance requiring a licence (or distribution of literature was void and that the case was indistinguishable from the case of Hague v. Committee for Industrial Organisation, (1938) 307 US 496 : 83 Law Ed 1423, which struck down a city ordinance which required a licence from a local official for a public assembly on the streets or highways or in the public parks or public buildings. Douglas, J., however, made the following observations which are pertinent:
'The present ordinance would be a dangerous weapon if it were allowed to get a hold on our public life. Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. But to allow the police to bar the use of loud-speakers because their use can be abused is like barring radio receivers because they too make a noise. The police need not be given the power to deny a man the use of his radio in order to protect a neighbour against sleepless nights. The same is true here.
Any abuses which loudspeakers create can be controlled, by narrowly drawn statutes. When a city allows an official to ban them in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas. In this case permit is denied because some persons were said to have found the sound annoying. In the next one a permit may be denied because some people find the ideas annoying. Annoyance at ideas can be cloaked in annoyance at sound. The power of censorship inherent in this type of ordinance reveals its vice.'
It wilt be noticed from the judgment of the majority and the above observations that, on the whole, the Court struck down the ordinance because the power conferred upon the police official was un-controlled and was not hemmed in by proper standards for the exercise of the official discretion. Mr. Justice Frankfurter delivered a dissenting judgment and Mr. Justice Reed and Mr. Justice Burton concurred with him. He expressed the opinion that modern devices for amplifying the range and volume of the voice or its recording afford too easy opportunities for aural aggression, and that, if such devices are uncontrolled, the result was likely to be intrusion into cherished privacy, and that the refreshment of mere silence, or meditation, or quiet conversation was likely to be disturbed or precluded by noise beyond one's personal control. The learned Judge then pointed out a distinction between the three cases, already referred to, and the case which the Court was called upon to decide. He observed that the matter before the Court was of a different order and further observed:
'It is not unconstitutional for a State to vest in a public official the determination of what is in effect a nuisance-merely because such authority may be outrageously misused by trying to stifle the expression of some undesired opinion under the meretricious cloak of a nuisance. Judicial remedies are available for such abuse of authority, and Courts, including this Court, exist to enforce such remedies.'
Jackson, J., also expressed a dissenting opinion. In his view, the issue which the Court had to decide did not relate to one of freedom of speech. He observed:
'To my mind, this is not a free speech issue. Lockport has in no way denied or restricted the free use, even in its park, of all of the facilities for speech with which nature has endowed the appellant. It has not even interfered with his inviting an assemblage in a park space not set aside for that purpose. But can jt be that society has no conlrol of apparatus which, when put to unregulated proselyting, propaganda and commercial uses can render life unbearable? .....
It seems to me that society has trie right to control, as to place, time and volume, the use of loud-speaking devices for any purpose, provided its regulations are not unduly arbitrary, capricious or discriminatory'.
It was contended by Mr. Oza that the majority opinion laid down absolutely that an ordinance prohibiting the use of loud-speakers was an infringement of the constitutional right of free speech. In our judgment, this would not be a fair reading of the majority judgment. The observations which we have quoted above sufficiently show that the judgment was based upon the fact that the ordinance put a previous restraint and that it did not prescribe any standards for the exercise of the discretion of the official in whose hands the power to grant a licence was placed. However, according to Frankfurter Reed and Burton, JJ., this was not so and that if the official exercises discretion in an arbitrary or capricious manner, there were judicial remedies open to the citizens to rectify such conduct. The learned Advocate Geneial contended that, even if Saia's case, (1947) 334 US 558 : 92 Law Ed 1574 laid down such a wide proposition as contended for by Mr. Oza, that case was, in effect, overruled by the decision given in Kovacs v. Cooper, (1949) 336 US 77 : 93 Law Ed 513, the majority judgment in which case was participated in by some of the same Judges who had participated in the majority judgment in Saia's case (1947) 334 US 558 : 92 Law Ed 1574. In Kovacs' case, (1949) 336 US 77 : 93 Law Ed 513 the ordinance which was challenged was one published by the city of Trenton, New Jersey, and, inter alia, it provided that
'it shall be unlawful for any person to play, use or operate, on or upon the public streets, etc., any device known as a sound truck, loud-speaker or sound amplifier, or radio or phonograph with a loud-speaker or sound amplifier which omits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon said streets or public places'.
The Court also expressed a divided opinion in this case. The majority judgment was pronounced by Mr. Justice Reed with whom the Chief Justice and Mr. Justice Burton concurred. In that case, Saia's case, (1947) 334 US 558: 92 Law Ed 1574 was relied upon on behalf of the city of Trentot. The majority distinguished it on the following grounds:
'This ordinance is not of that character. It contains nothing comparable to the above quoted Article 3 of the ordinance in the Saia's Case (1947) 334 US 558 : 92 Law Ed 1574. It is an exercise of the authority granted to the city by New Jersey 'to prevent disturbing noises', ....... nuisances well within the municipality's power to control. The police power of a State extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquillity of a community. A state or city may prohibit acts or things reasonably thought to bring evil or harm to its people'.
The majority further observed that the above principle had been recognised in Saia's Case, (1947) 334 US 558 : 92 Law Ed 1574 where the judgment had stated 'the hours and place of public discussion can be controlled'. Frankfurter, J., who delivered the minority opinion in Saia's case, (1947) 334 US 558 : 92 Law Ed 1574 concurred with the majority judgment in Kovacs' case, (1949) 336 US 77 : 93 Law Ed 513 but made certain dissenting observations on the majority judgment, which are not pertinent to the present case. Jackson, J., who had also expressed the minority view in Saia's case, (1947) 334 US 558 : 92 Law Ed 1574 also concurred with the majority judgment in Kovacs' case, (1949) 336 US 77: 93 Law Ed 513 but he expressed the opinion that the decision in Kovacs' case, (1949) 336 US 77 ; 93 Law Ed 513 was a repudiation of the decision in Saia S case, (1947) 334 US 55B : 92 Law Ed 1574. The dissenting judgments were two in number; one was delivered by Black, J., with whom Douglas and Rutledge, JJ., concurred. But, from this dissenting judgment, it appears that the dissent was more grounded on a difference between the different members of the Court as to what the charge against Kovacs was in the trial Court. The first minority judgment was based on the view that Kovacs was convicted for use of a loud-speaker and not on the ground that the loud-speaker omitted loud and raucous noise. The majority judgment, on the other hand, proceeded on the ground that the ordinance prohibited not the use of loudspeakers, but only such loud-speakers as emitted loud and raucous noise, and that Kovacs was convicted for the use of an appliance of that type. That, there was no serious difference of opinion between the majority judgment and the first dissenting judgment is also quite clear from the following passage of the first dissenting judgment.
'I am aware that the 'blare' of this new method of carrying ideas is susceptible of abuse and may under certain circumstances constitute an intolerable nuisance. But ordinances can be drawn which adequately protect a community from unreasonable use of public speaking devices without absolutely denying to the community's citizens all information that may be disseminated or received through this new avenue for trade in ideas. I would agree without reservation to the sentiment that 'unrestrained use throughout a municipality of all sound amplifying devices would be intolerable'. And of course cities may restrict or absollutely ban the use of amplifiers on busy streets in the business area.
A city ordinance that reasonably restricts the volume of sound, or the hours during which an amplifier may be used, does not, in my mind, infringe the constitutionally protected area of free speech. It is because this ordinance does none of these things, but is instead an absolute prohibition of all uses of an amplifier on any of the streets of Trenton at any time that I must dissent'.
Therefore, the second point of difference between the majority judgment and the first minority judgment was based upon the fact that, according to the minority judgment, the proper construction of the ordinance was that, it placed a total prohibition on the use of Loudspeakers. The second minority judgment was delivered by Rutledge, J., and, 'in effect, that judgment is also based upon the same reasoning and appears to have been separately delivered to point out mainly that the majority of the Judges concurring and dissenting were in agreement that the issue presented was whether a State or a Municipality might forbid use of sound trucks or amplifying devices in public streets without reference to whether loud and raucous noise was emitted. It is not possible to say with confidence that Kovacs' case (1949) 336 US 77 : 93 Law Ed 513 overrules Saia's case, (1947) 334 US 558: 92 Law Ed 1574. But, one thing is quite certain that each case was based upon a certain interpretation of the ordinance in question and the different judgments appear to have been delivered because of the different views which were entertained by the learned Judges regarding the scope and proper interpretation of the ordinances in question. In Saia's case, (1947) 334 US 558 : 92 Law Ed 1574 the ordinance was struck down mainly on the ground that it did not prescribe any standards for the exercise of the discretion of the public official in whose hands ihe administration of the ordinance was placed and in Kovacs' case (1949) 336 US 77 : 93 Law Ed 513 the ordinance was upheld because it did not prohibit the total use of loudspeakers, but was confined to loudspeakers which emitted a loud and raucous noise and which were operated from any vehicle standing upon public streets and places. In so far as the judgments in the two cases take the view that the loudspeakers are devices for expression of views, the view is in agreement with the one which we have taken in this case, and, in so far as the judgments in the two cases take the view that the State has got the power of regulating and controlling the use of the loudspeakers, it is also in agreement with the view which we have taken above. In our judgment, though the American view is based upon the interpretation of the Due Process Clause as it must, it cannot in all cases be held to be valid in India where the decision must ultimately rest upon Clause (1)(a) of Article 19 of the Constitution of India. On the whole, we find that the views which we have taken on the same subject are more or less the same as those expressed by the learned Judges in the above two American cases.
37. For the above reasons, the petition must fail and the rule is discharged.