1. The question raised in this petition is as to the constitutional validity of the Prevention of Insults to National Honour Act, Madras Act XIV of 1957 The petitioners who are accused 6 and 7, stand charged before the Court of the District Magistrate Madurai with having committed offences under Section 5 of that Act read with Sections 120-B and 109 I.P.C. The 6th accused is said to be the organising secretary of the Dravida Munnetra Kazhagam and a member of Anti Hindi Agitation committee and the 7th accused is the treasurer of the Kazhagam and chairman of that committee besides being the Deputy Leader of the Opposition in the Madras Legislative Assembly. The Parliament passed the Official Languages Act, Act 9 of 1963, which received the assent of the President on 10.5.1963 The object of the Act is to provide, with reference to Article 143(3) in Part XVII of the Constitution of India for the languages which may be used for the official purposes or the Union of India for transaction of business in Parliament, for Central and State Acts and for certain purposes in High Courts.
Section 3 of this Act enacts that notwithstanding the expiration of the period of 15 years from the commencement of the Constitution, the English-language may, as from the appointed day, continue to be used, in addition to Hindi for all the official purposes of the Union as before and for transaction of business in Parliament This section is to come into force on 26.1.1965. The rest of the provisions, which are to come into force on and from the dates appointed by the Central Government by notification in the Official Gazette, provide for the setting up of a Committee on Official language publication of a translation in Hindi it Central Acts. Ordinances, Orders, rules, regulations or by-laws under the Constitution or any Central Act as also Bills in English introduced in the Parliament, authorised Hindi translation of State Acts in certain cases, optional use of Hindi or other official language in judgments of the High Courts and power to make rules.
2. The petitioners before us state that the policy of their party is to protest against the imposition of Hindi as an official language and 'Hindi neo-imperialism' and, in furtherance of such policy, to burn openly and publicly Part XVII of the Constitution of India and to announce in public the names of persons places, date and hour for doing it. The prosecution has attributed to the sixth accused the act of burning part XVII of the Constitution of India on 6.12.1963 and the 7th accused a similar act on 19.7.1963 at Tanjore both acts as-having been done openly and publicly Actually the charges framed against them at the trial before-the Dist Magistrate are that they with others conspired to wilfully burn part XVII of the Constitution and also abetted by delivering public speeches and instigating certain other accused to wilfully burn that part of the Constitution punishable respectively under Section 5 of the Prevention of Insults to National Honour Act read with Section 120-B of the I.P. Code and under the same section of that Act read with Section 109 of that Code While their trial is pending before the District Magistrate, they have moved this Court to quash the charges against them.
3. The ground on which they seek the relief from this Court is that S 5 of the Prevention of Insults to National Honours Act is ultra vires the powers of the State Legislature and is in any case, violative of their fundamental rights guaranteed by Article 19(1)(f) of the Constitution Mr. K. Narayanaswami Mudaliar, who appears for the petitioners contends that the subject matter of the Act is national honour and its purpose is to protect it from insults and that the only head of legislative power under which the subject can be brought, is the residuary entry 97 of the Union List of the VII Schedule to the Constitution. He refers to the use of the words 'nation or national' in the preamble, Article 249(1) 'National highways' in entry 23, 'national waterways' in entry 24, and 'national importance' in entries 63 and 64 in the Union List and argues that the Constitution has intended that anything of a national character or importance can be the subject matter of legislation by the Parliament only under the Union List and not by the State Legislature under the State or Concurrent list.
He invites attention to the heading of the Act An Act to prevent insults to National Honour and say that as the pith and substance of the Act is the concert of the entire country and as none of the enumerated entries in any of the Lists specifically covers it. It necessarily belongs to the residuary power of the Union legislature. Learned Counsel is right in invoking the aid of pith and substance doctrine in testing the vires of the impugned section. But beyond that, we are unable to appreciate his contention In our view, his approach to the problem of vires is incorrect as it has, as its basis, a wrong assumption that a subject, which is of a national character and of country-wide importance, is not for that reason within the province of die State Legislative power and that only Parliament can legislate on the subject of national honour.
4. The validity of an Act of the State Legislature should, in our view, be tested having regard to the provisions of the Constitution relating to the distribution of the legislative power and constitutional limitations upon it and not on the basis which learned Counsel for the petitioners has suggested. Our Constitution is of a Federal type with distribution of legislative power between the Union and the States under enumerated heads assigned exclusively to each, except the Concurrent field common to both and regulated by the repugnancy provisions, and leaving the residuary powers to the Parliament. The competency or vires of a State Legislation, as of Parliament, depends, therefore, on the answer to the question whether it is within the ambit of any of the State or Concurrent legislative heads of power This test is applied by reference to the true character, nature, purpose and legal effect of the legislation, or to put it in a different phraseology, the pith and substance doctrine and allied rules of construction. We cannot, therefore accede to the proposition that, if the subject of legislation is of a national character in the sense that it concerns not merely the State but the country in general it is decisive that the power with respect to it belongs to the Parliament and not to the State Legislature.
5. We shall, therefore, first examine the provisions of the impugned Act, to ascertain its pith and substance, so as to fix the legislative head of power under which it can be justified. As we have already mentioned, the Act begins with the caption that it is an 'Act to prevent insults to National Honour' and its preamble recites that it is expedient and necessary to prevent certain offences against the Indian National Flag, pictures effigies, and statues of the Father of the Nation, or the Constitution Section 1 relates to the title of the Act. Each of the following four sections creates a separate offence punishable with imprisonment extending to three years or with fine or with both Section 2 provides for punishment of whoever wilful burns or desecrates or insults any effigy picture or portrait of Mahatma Gandhi, Section 3 of whoever wilfully causes damage to, or destruction of, any statue or bust of Mahatma Gandhi or any such change in such statue or bust or in the situation thereof, as destroy of diminish its value or appearance ox otherwise affects it injuriously Section 4 of whoever wilfully burns or desecrates or insults the Indian National Flag including any pictorial representation thereof and Section 5 of whoever wilfully burns or desecrates or insults any copy or a copy of a part of the Constitution of India. Under Section 6 however attempts in commit any of these offences shall be deemed to have committed that offence.
I he essence of the Act is the legislative recognition of the fact that Mahatma Gandhi as the Father of the Nation the Indian National Flag wilful symbolises the sovereignty of this country and the Constitution of India which is the supreme document and which enshrines the set up of the Demo critic Republic the rights and aspirations of the nation and the machineries of the Government, are amongst those constituting our national honour and that any of the said acts done wilfully is an insult to the Indian Nation and its honour and is a penal offence. While the subject of legislation is the national honour and its purpose is to preserve and protect it from any wilful acts of insult it is obvious that what is basic to the Act is public propriety and orderliness.
6. In our view therefore, Section 5 of the Act may fall within the ambit of 'public order' in entry 1 of the State Legislative list Apart from the fact that legislative heads of power should be read and understood in their widest amplitude and sense the phrase public order is in itself of a very wide import and will, in our opinion include an impropriety, affront or insult to the orderliness such as wilful burning, desecrating or insulting a copy 01 a part of the Constitution of India The vice of the impropriety lies in the willfulness of the act of burning or desecrating or insulting There can bf no doubt whatever that the Constitution of India concerns the public and any insult wilfully offered to it is in a sense a negation of the values comprised in 'Public Order'.
7. fn Lakhinarayan Das v. Province of Bihar 1949 FCR 693 AIR 1950 FC 59 the federal Court observed that the expression 'Public Order' with which the first item in the State list begins, was a most comprehensive term and it clearly indicated the scope and ambit of the subject in respect of which powers of legislation had been given to the State That no doubt was a case relating to preventive detention but even so, the force of the observation as to the comprehensive amplitude of the expression remains Learned counsel for the petitioners attempted a narrower interpretation of the phrase 'Public Order' on the basis of the Superintendent Central Prison v Dr. Ram Manohar Lohia : 1960CriLJ1002 . But there the Supreme Court was concerned with the concept of 'Public Order' as it occurs in Article 19(2) as amended by the Constitution (First Amendment) Act 1951. It was held that the content and meaning of the 'public order' in that provision should be understood as limited by the context and in the light of the words preceding and following that phrase and that so understood the phrase was synonymous with public peace safety and tranquility
In our opinion, considerations, which govern the interpretation of the phrase in Article 19(2) of the Constitution, cannot be imported into construction of 'Public Order' as a legislative head of power. The Supreme Court itself in that case noticed that de hors the context of Article 19(2), the phrase 'Public Order' was one of wide significance which might include maintenance of public tranquility and offences against 'Public Order' tailing under two categories; (1) major offences affecting the security of the State and (2) minor offences involving breach of purely local significance. We think, therefore, that the limited meaning given to the phrase in the content of Article 19(2) does not help the petitioners. As we said, in our view, an insult to national honour of the kind mentioned in Section 5 of the Madras Act XIV of 1957 tails under 'public order' and Section 5 is competent for the State Legislature to enact under entry 1 read with entry 84 of the State List.
8. We are also clearly of the opinion that the impugned Section 5 is in any case competent for the State Legislature to enact under the head of 'Criminal law' in the Concurrent list. This head includes all matters included in the Penal Code at the commencement of the Constitution but from its ambit are no doubt excluded offences against laws with respect to any of the matters specified in list I or list II The other exclusion from it of the use of naval, military or air forces or any other armed forces of the Union in aid of civil power is not relevant to our present purpose. Prime facie 'criminal law' is comprehensive, and subject only to the express exclusions, it will comprehend all criminal law. We are unable to accept the contention for the petitioners that because 'National Honour' falls under the residuary entry in the Union list, it is excluded from the purview of 'Criminal law' in the Concurrent list. This argument appears to us to proceed on a wrong assumption as to the scope and effect of the words of exclusion in entry I of the Concurrent list. Our understanding of the effect of the exclusion by the words 'excluding offences against laws with respect to any of the matters specified in list I or list II' is that, till a law is made with respect to any of the matters, in list I or list II, no limit is placed upon and the exclusion does not operate to limit the ambit of the power under the head of 'Criminal law' in list III.
We are inclined to accept the argument of learned Advocate General that the exclusion contemplated by entry I in the Concurrent List takes effect on account of and springs from the fact of there being a law made with respect to any of the matters specified in list I or list II and that, if there is no such law made, there is to limitation upon the concurrent power under the head 'Criminal law'. Only if a law is made, does the occasion arise to create offences against the law. Section 5 of Madras Act XIV of 1957 is not a case of an offence against a law made by the State Legislature. But it directly creates an offence punishable as specified. The Emblems and Names (Prevention of Improper Use) Act (XII of 1950) which is a Central enactment illustrates the difference. In that Act, Section 3 prohibits improper use of certain emblems and names and Section 5 provides that any person who contravenes the provisions of S 3 shall be punishable with fine which, may extend to Rs. 500. So far as Section 5 of Madras Act XIV of 1957 is concerned, in creating an offence under that section, the State Legislature has assumed that the common law of the land does not permit wilful burning, desecration of insult to a copy or a copy of a part of the Constitution of India. In support of such an assumption, learned Advocate General has referred us to Shaw v. Director of Public Prosecutions 1962 AC 220 at p. 266, in which Viscount Simons observed:
I am concerned only to assert what was vigorously denied by counsel for the appellant, that such an offence is known to the common law.... But I am at a loss to understand how it can be said either that the law does pot recognize a conspiracy to corrupt public morals or that though there may not be an exact precedent for such a conspiracy as this case reveals, it does not fall fairly within the general words by which it is described.... On the one hand, it is said that it is not possible in the 20th century for the court to create a new head of public policy on the other it is said that this is but a new example of a well-established head. In the sphere of criminal law, I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.... The. law must be related to the changing standards of the, not yielding to every shifting impulse of the popular will but having regard to fundamental assessments of human values and the purposes of society....
These observations were made in a different context but the principle the Noble Lord had in mind is understandable. Can it be said that the common law of this land will be so blind and insipid as to allow wilful burning of a copy of the Constitution of India which is so vital and supreme of the governance and welfare of this country? The answer is plain and in the words of the Noble Lord at page 268:
I say, my Lords, that if the common law is powerless in such an event, then we should no longer do her reverence. But I say that her hand is still powerful....
Here in the case of Section 5 of Madras Act XIV of 1957 the State Legislature itself assumes, we think rightly, that the wilful acts which are made offences under that section, are prohibited by the common law of the land.
9. We have already noticed that the head of power under the 'Criminal law' in list III includes all matters included in the Indian Penal Code at the commencement of the Constitution some of which are offences against public tranquility and offences affecting public safety, It Is not inconceivable that when a copy of the Constitution is wilfully burnt, desecrated or insulted, it is likely to disturb public tranquility. It is not also inconceivable that in a broad sense such an act may affect public safety and that it may further be regarded as opposed to Agency and good morals. On this view also, we Wink that the impugned Section 5 was competent for the State Legislature to make under entry I of the Concurrent list.
10. The petitioners next contend that Section 5 of Madras Act XIV of 1957 violates their fundamental right Under Article 19(1)(f) - the right to acquire, hold and dispose of property. It is said that a copy of the Constitution of India is of commercial value and is property which the owner is entitled to dispose of in any manner he likes including by burning or desecrating it. We may concede that a copy of the Constitution is property, but we are unable to accept the proposition that the right under Article 19(1)(f) includes the right to wilfully burn, desecrate or insult a copy of the Constitution or a it any part of it That certainly cannot be the intention of the framers of the Constitution In fact, an act, so sacrilegious as that, would not be within the contemplation of the framers. Can it be said that because a bottle of whisky is property it is the fundamental right of the owner to dispose it of in any way by himself consuming it To our minds, the answer is clearly and should be in the negative. In State of Bombay v. R.M.D. Chamarbaugwala (S) : 1SCR874 the Supreme Court had to consider whether gambling was included in the fundamental rights, While holding that it was not, the Supreme Court observed:
We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance...could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce, or intercourse and to be made the subject matter of a fundamental right guaranteed by Article 19(1)(g)...We are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling....
Following the same line of reasoning, we hold that wilful burning of a copy of the Constitution is not included in the fundamental right to acquire, hold and dispose of property. Section 5 of Madras Act XIV of 1957 does not violate Article 19(1)(f) of the Constitution.
11. The result is, we uphold the validity of Section 5 of Madras Act XIV of 1957 and dismiss the petition.