1. All these petitioners have been convicted cinder Section 7 (1) (a) and (b), Criminal Law Amendment Act, 1932, by the learned Third and Seventh Presidency Magistrates. They have all been tried in pairs and sentenced to six months' rigorous imprisonment, except petitioners in Cri. B. O. Nos. 442 and 489 of 1951 who have been sentenced to three months' rigorous imprisonment, The case against them is that on dates between 10th March 1951 and 4th April 1961 they went in pairs near the shop of Kishinchand Chellaram in Mount Road with placards and black flags and sought to dissuade intending customers from purchasing in this North Indian shop,
2. On the first of these petitions filed cri. R. O. nO. 442 of 1951, I directed tbe release of the petitioners on bail. Then on a batch of petitions filed Cri, R. C. NOS. 484, 485, 487 and 488 to 193 of 1951 instead of granting bail I directed the production of the petitioners in this Court from-the Penitentiary. The learned Magistrate as-would appear from his judgments was quite prepared to deal leniently with them but in view of their insistence that they would report the offence if released after admonition thought it fit to-pass the sentences he did.
3. These petitioners all come from Tanjore-district and were admittedly brought to Madras by lorry by picketting committee of a political organization known as the Dravida Kazhagam. Some of them said they were cultivators of Tanjore who were anxious to return to their district. I directed their release on the day they were produced, i, e, 5th June 1951 holding that in any case they had been sufficiently punished by the sentences they had undergone pending a finding on the constitutional contentions raised that petitioners were acting within the scope of their fundamental right of freedom of speech and expression under Article 19(1)(a) of the Constitution and that they had committed no offence at all. It is conceded that they went in pairs with placards and flags in front of Kishinchand Chel-laram's shop and attempted peacefully to dissuade by mere speech persons from buying in thia North Indian shop. Mr. Bamchandran and Mr. Venkataraman who appeared for the petitioners and made contributions to the arguments contended further that Section 7, Criminal Law Amendment Act, 1932 has been rendered ultra vires as being in breach of this fundamental right under Article 19(1)(a). Arguments could not be finished on the date these petitioners were produced before me, and I directed their release with advice to-them to return to Tanjore and occupy themselves in the production of more food, agricultural labourers as most of them claimed to be. There can be no doubt that the altitude they took before the Magistrate was the result of in structions from their political organization on legal advice that what they were doing was within the scope of their fundamental rights under the Constitution,
4. Another batch of petitions Cri. R. C. Nos. 514 to 519 of 1951 (Cri. R. P. Nos. 509 to 514 of 1951) was filed on 19th June 1951 the date on which arguments were taken to a conclusion on behalf of 12 accused similarly convicted and sentenced, their advocate explaining that he had received' no earlier instructions to file petitions for them. These petitioners are exactly in the same category. I directed their immediate release from prison. This order will cover their cases also.
5. The constitution guarantees to all citizens of the Indian Union of States other important fundamental rights, under Article 19(1)(d) to move freely throughout the territory of India, under Article 19(1)(e) to reside and settle in any part of the territory of India and under Article 19(1)(g) to practise any profession or to carry on any occupation, trade or business. All these fundamental rights are subject to reasonable restrictions prescribed by the State as laid down in Article 19 els. (2), (5) and
(6) Under Clause (6) the fundamental right to carry on a trade or business does not affect the operation of any existing law which imposes in the interests of the general publio restrictions on the exercise of this right; in other words, a shopkeeper, who is a citizen of India, has a fundamental right to carry on his trade in any part of the Indian Union subject to the controls, licenses and restrictions orders legitimately imposed by the State. A citizen has therefore a right to expect from the State protection in the exerciae of his business from persons, who assemble outside his shop and seek to diasuade customers from purchas-ing goods from him on the ground that he is a North Indian.
6. Mr. Yenkataraman urges that petitioners have committed no offence as they resorted to no violence or active obstruction and as I understand his arguments that they were perfectly entitled to spread propaganda sponsored by the Dravida Kazhagam who regard North Indians amongst whom are included Brahmins as exploiters of the Dravidians in the south. He has repeatedly urged that Article 19(1)(a) gives a fundamental right to a citizen to free a minority from a tyrannical majority or a majority from a tyrannical minority. He further contends that the right to freedom of speech and expression under Article 19(1)(a) can only be restricted within the limits of Article 19(2). Undec this clause, the right to freedom of speech and expression would not affect the operation of any existing law so far as it relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security or tends to overthrow the State. The conduct of the petitioners up to the restrained limits they exercised the right they claim has been really innocuous, but taken to extremes and logical conclusions, such as these to which the learnedNadvoeate would take the right to
freedom of speech and expression, the right claimed, if upheld would justify not merely two persons but several persons assembling in front of a North Indian shop and seeking to practise peaceful persuasion on intending customers not to buy from it in furtherance of the propaganda of the Dravida Kazhagam. Article 15(1) lays down another fundamental rights for all citizens viz., that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. I am not prepared to say any that the conduct of the petitioners comparatively innocuous though it has been would not if carried to logical and extreme conolusions come within the category of something, which would tend to undermine the security of the State, the objective being to create disaffection which may ultimately lead to hatred and strife in the south between South Indians and North Indians residing in and doing business in the south.
7. Mr. Venkataraman has readily conceded that if the Dravida Kazhagam as a political party was returned to power at the next elections in the State and endeavoured to pass an Act forbidding South Indians to purchase from North Indian shops, such an Act would be clearly ultra vires of the Constitution. Whatever doubt may attach to legislation to implement propaganda on politi-cal platforms being held to be ultra vires, this item of propaganda sponsored by the Dravida Kazhagam, if ever it is sought to be implemented by legislation, would immediately be held by the Courts to be ultra vires of the Constitution as Mr. Venkataraman himself agrees. As the Con-stitution has been invoked to justify the conduct of these petitioners in the name of freedom of speech and expression I have from the Constitution itself placed a constitutional position before Mr. Venkataraman to which be has not been able to find an appropriate answer. I am there-fore in the first place quite unable to see how he can invoke Article 19(i)(a) of the Constitution to justify the conduct of the petitioners as being within their fundamental right of freedom, of speech and expression as it appears, to me there is embodied in this propaganda of the Dravida Kazhagam an unconstitutional germ which the constitution itself cannot be invoked for the put-pose of fostering and nourishing.
8. This is also a case in which one fundamental right claimed of freedom of speech and expression comes, as it appears to me, into conflict with other fundamental rights of all citizens viz., to reside and settle in any part of the Indian Union and to carry on their occupation, trade or business. I am not impressed by the arguments of Mr. Venkataraman that every exorcise of a fundamental right may result in some injury or infringement of another fundamental right. When two fundamental rights come into conflict and one is sought to be extended to extreme and logical conclusions at the expense of the other, a Court will be slow to recognise and uphold such an extension of a fundamental right which infringes and violates another fundamental right.
9. Mr. Venkataraman has also eloquently argued that the present petitioners have merely adopted the technique of the national leaders of the Congress movement, who were active than themselves, prostrated before people in their attempts to stop from entering liquor shops and buying from foreign cloth shops. The circum-stances of those days were entirely different. There was then a deliberate disobedience of some existing laws and a courting of imprisonment. The analogy does not also stand constitutional scrutiny. Picketting of toddy shops, illegal though it was under Section 7, Criminal Law Amendment Act, was in pursuance of the policy of prohibition and all liquor shops have been closed at any rate in this State by a law implementing this policy and such law has not been held to be ultra viras. There can however be no doubt that a law forbidding South Indiana from buying in North Indian shops can never be legally and validly passed under the Constitution on which the case for the petitioners is founded.
[9a] My attention has been drawn to two American decisions Byron Thornhill v. State of Alabama, United States Supreme Court Reports 310 U. S. B. 84 page Lawyer's Edition page 1093) and Carlson v California, U. S. S. C. Rep. (Lawyer's Edition Book 84) 810 U. S. 1104. It was held by a Full Bench that State Ordinances forbidding loitering or picketting and making it a criminal offence were invalid. Under those Ordinances workers were arrested, convicted and imprisoned for carrying placards near the place of their employment after a strike had been declared. Thornhill was sentenced for speaking to a non-Uuion member and telling him without any threat or intimidation that they were on strike and that they did not want him ta go to work. The learned Judges held that in each labour disputes the workers had a fundamental right to give publicity to the facts of a labour dispute. As I read those decisions, freedom of the employer to conduct hie economic affaire came into conflict with what the Judges held to be freedom of the employees to conduct their economic affairs through their Unions. It was recognised that the rights are subject to modification or qualification by the State in the interests of society but the Judges held that the State in dealing with evils from industrial disputes cannot impair the effective exercise of the right to discuss freely industrial relations, which are matters of public concern.
10. The background of those decisions is quite dissimilar and they are inapplicable to the facts in the present case. The American Constitution does not contain an enunciation of all the fundamental rights laid down in our Constitution. It is only necessary to refer to the fundamental right laid down in Article 15(2) that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops publicrestaurants, and hotels. The American Constitution does not contain any such fundamental right. Finally in the American decisions the objctive of the picketing or loitering was held to be the giving of publicity to the facts of a labour dispute, a legitimate object whereas in the present case the objective is publicity in furtherance of propoganda of an unconstitutional nature. The petitioners' conduct, therefore, cannot be justified under Article 19(1)(a) of the Constitution nor can I secany ground on which Section 7, Criminal Law Amend-meat Act, which has been on the Statute booksince 1939 should in the present content be de-clared ultra vires.
11. Section 7 (1) (b) of this Act makes it an offence for a person to loiter or do any similar act at or near the place where a person carries on business in such a way and with intent that any person may thereby be deterred from entering or approaching or dealing at such place. On their own admissions petitioners are guilty of this offence. Under Section 7 (2) no Court shall take cognizance of an offence under this section except upon a report in writing made by a police officer not below the rank of officer in charge of a police station. There was no necessity for the intending customers accosted to have been examined as witnesses as the learned advocate contends. It is quite clear from the record that the petitioners knew quite clearly the offence with which they were charged and which they admitted. The learned Magistrate has convicted the petitioners under 3. 7 (1) (a) and (b). The convictions should have been only under Section 7 (1) (a) and will be modified accordingly.
12.The Magistrate can scarcely be criticised for passing on the petitioners the sentences be did in view of their general attitude that if released after admonition, they would repeat the offence. Petitioners are persons ignorant of the law and most of them appear to be illiterate. They have merely acted throughout on instruc-tiots from the political organisation Which employed them, I have end avoured to set out in simple language conscious as I am of the linguistic barrier between the Court and the petitioners and also probably several members of the Dravida Kazhagam itself the reasons why under the Constitution itself this propaganda against North Indian shops cannot possibly be justified. Petitioners will have suffered in a good cause if these cases result in the Dravida Kazhagam abandoning propaganda, which is so clearly unconstitutional and directing its organisation and talents to propaganda of a type more in harmony with the ideals, the letter and the spirit of the Constitution. The convictions of the peti. tioners are confirmed under Section 1 (1) (b), Criminal Law Amendment Act and the sentences reduced to the period they had undergone until I released them from jail.
13. On the day I delivered this judgment another baton of similar petitions Cri. R. C. Noa. 539, 680, 681, 639, 638, 584 and 535 of 1951 has been placed before me for admission filed by Mr. Venkataraman in respect of petitioners similarly convicted in pairs for precisely the same offences between 9th March 1951 and 4th April 1951 and sentenced to six months imprisonment. Mr. Venkataraman has no further arguments to address on those petitions: which are all covered, by the order I have just pronounced. These cases are also admitted. The petitioners in them are all directed to be immediately released from jail. Their convictions are similarly confirmed and the sentences reduced to the periods they have already undergone.