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Mrs. Pattammal Arumugam and ors. Vs. the Chief Presidency Magistrate - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. Nos. 1941, 2303 and 2777 of 1950
Judge
Reported inAIR1951Mad950; (1951)IIMLJ101
ActsPress (Emergency Powers) Act, 1931 - Sections 3 and 3(1); Constitution of India - Article 19(1), 19(2) and 19(6)
AppellantMrs. Pattammal Arumugam and ors.
RespondentThe Chief Presidency Magistrate
Advocates:A. Ramachandran, Adv. for Row and Reddy;Adv.-General for the State Counsel
DispositionOrders quashed
Cases ReferredIn Brij Bushan v. The State of Delhi
Excerpt:
..... - in the affidavit filed by her in support of the application she states that she is too poor to deposit the security and in any event that it was impossible for her to deposit the amount demanded within ten days, that therefore, her sole source of livelihood has been taken away and she has been put to great loss and hardship. . the consequent s of a failure to deposit the security so required are contained in sections 11 and 12 of the act under section 11 the keeper of the press is liable to be punished criminally. the contingency of matter coming into existence cannot be covered by article 19(2). there is another formidable objection to the enforcement of a provision like section 3 (1) of the act. it was contended by the learned advocategeneral that in a particular case, the reasons..........to apply to the high court to set aside certain orders passed under the act including an order to deposit security passed under sub-section (3) of section 3, but it was not disputed that there is no provision in the act which confers on the keeper of the press the right to apply to this court to set aside an order made under sub-section (1) of section 3. section 23 (2) of the act no doubt entitles the keeper of the press to challenge an order of forfeiture made under sub-section (2) of section 12, but only on the ground that the press was not used in contravention of a sub-section (1). it is obvious therefore that the petitioner has no other remedy to get rid of the order passed against her. 4. the main contention which was pressed on us by learned counsel for the petitioner was based.....
Judgment:

Rajamannar, C.J.

1. C. M. P. No. 1941 of 1950 : The question for decision in this case falls within a narrow compass. The petitioner is the owner of a printing press. She filed an application before the Chief Presidency Magistrate, Madras City for declaring herself as the keeper of the press on 18-1-1950 as required under the Press and Registration of Books Act, (xxv [25] of 1867). On or about 13 2 1950 the Chief Presidency Magistrate passed an order purporting to be under Section 3(1) of the Indian Press Emergency Powers Act, XXIII [23] of 1931 calling upon the petitioner to deposit with him within ten days from that date a security of Rs. 1000 either in cash or in Governmentof India securities. The reasons for this order were contained in the preamble which ran thus,

'Whereas Mrs. Pattammal Arumugam has this day declared herself before me as the keeper of the 'Nehru Press' at No. 120 Papfr Mills Boad, Perambur, and whereas the said Mrs. Pattammal Arumugam is reported to be a communist sympathiser and is likely to incite or encourage the commission of cognizable offences involving violence or interference with the maintenance of law by printing objectionable communist literature in her Press which was previously used for that purpose by her husband, who is a communist detenu.I, Sri K. Ramaswami Gounder, Chief Presidency Magistrate, consider it expedient to call upon her under Section 3(1) of the Indian Press (E. P.) Act XXIII [23] of 1931 to deposit with me within ten days from this day, a security of Rs. 1000 either in cash or in Government of India securities.'

It is alleged that this order was passed without previous notice to the petitioner and without giving an opportunity to her to show cause why such an order should not be made. The petitioner seeks to have this order quashed by a writ of eertiorari mainly on the ground that Section 3 (1) of Act XXIII of 1931 is void under Article 13 of the Constitution of India inasmuch as it is inconsistent with the provisions of Article 19(1)(a) and (g) of the Constitution. In the affidavit filed by her in support of the application she states that she is too poor to deposit the security and in any event that it was impossible for her to deposit the amount demanded within ten days, that therefore, her sole source of livelihood has been taken away and she has been put to great loss and hardship.

2. Under Section 4 of the Press and Registration of Books Act, XXV [25] of 1867, no person shall keep in his possession any press for the printing of books or paper who shall not have made and subscribed a declaration before the Magistrate within whose local jurisdiction such press may be, that he has a press for printing at a particular place, true and precise description of which is given in the declaration Section 3(1) of the Press (Emergency Powers) Act, XXIII [23] of 1931 runs as follows :

'Any person keeping a printing press who is required to make a declaration under Section 4 of the Press and Eegistration of Books Act, 1867, may be required by the Magistrate before whom the declaration is made for reasons to be recorded in writirg, to deposit with the Megistrate within ten days from the date on which the declaration is made security to such an amount not being more than one thousand rupees, as the Magistrate may in each case think fit to require, in money or the equivalent thereof in securities of the Central Government as the person making the deposit may choose.. ..'

The consequent s of a failure to deposit the security so required are contained in Sections 11 and 12 of the Act Under Section 11 the keeper of the press is liable to be punished criminally. Section 12(1) provides that such press shall not be used for the printing or publishing of any newspaper, book or other document after the expiry of the time allowed to make the deposit unless the deposit has been made and under Sub-section (2) of the section, where any printing press is used in contravention of Sub-section (1), the Provincial Government may, bynotice in writing to the keeper thereof declare the press to be forfeited to the Government.

3. Section 3 (2) provides that where security has been deposited as required and for a period of three months from the date of the declaration, no order is made by the Government under Section 4 forfeiting such security, the security shall, on application by the keeper of the press, be refunded. Section 23 (1) of the Act confers on the keeper of a press a right to apply to the High Court to set aside certain orders passed under the Act including an order to deposit security passed under Sub-section (3) of Section 3, but it was not disputed that there is no provision in the Act which confers on the keeper of the press the right to apply to this Court to set aside an order made under Sub-section (1) of Section 3. Section 23 (2) of the Act no doubt entitles the keeper of the press to challenge an order of forfeiture made under Sub-section (2) of Section 12, but only on the ground that the press was not used in contravention of a Sub-section (1). It is obvious therefore that the petitioner has no other remedy to get rid of the order passed against her. 4. The main contention which was pressed on us by learned counsel for the petitioner was based on Article 19(1)(a) of the Constitution which declares that all citizens shall have the right to freedom of speech and expression. No doubt Article 19(2) saves any existing law in so far as it relates to any matter which offends against decency or morality or undermines the security of or tends to overthrow the State. But Counsel submitted that Section 3 (1) of the Press (Emergency Powers) Act cannot be deemed to be such a law. It appears to us without need for much discussion that Section 3 (1) itself cannot obviously be an enactment relating to any matter which undermines the security of and tends to overthrow the State. Having regard to the person from whom the security is required and the stage at which the order is made, it appears to us that there is nothing which can be said to have the effect of undermining the security or tending to overthrow the State. Nothing has been published so far, because without a declaration the press cannot function The only way of trying to bring this provision within Article 19(2) is by saying that it is intended to apply to the prospective publication of matter which may undermine the security of or tend to overthrow the State. We are of opinion that Section 3 (1) of the Act cannot be upheld as a preventive provision because Article 19(2) would not justify preventive legislation. There must be matter to which the law could relate. The contingency of matter coming into existence cannot be covered by Article 19(2). There is another formidable objection to the enforcement of a provision like Section 3 (1) of the Act. According to it, the Magistrate may require any keeper of a press to deposit security for any reason. He has only to record the reasons in writing. There is no indication in Section 3 (1) itself for what reasons the Magistratecould require security to be furnished. It was contended by the learned AdvocateGeneral that in a particular case, the reasons given by the Magistrate may fall within Article 19(2) of the Constitution and the order in such a case would be valid though an order passed for reasons other than those mentioned in Article 19(2) may be bad; and that it was not necessary to declare Section 3 (1) to be wholly void. This argument must be overruled on the authority of the recent decision of the Supreme Court in Romesh Thapper v. The State of Madras, 1950 S. C. J. 418. His Lordship Patanjali Sastri J. who delivered the judgment of the majority observed:

'Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, Clause (2) of Article 19 having allowed the imposition of restriction on the freedom of speech and expression only in cases where danger to public security is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.'

We are also of opinion that the principle underlying the decision of another recent decision of the Supreme Court applies here. In Brij Bushan v. The State of Delhi, 1950 S. C. J. 425 the Supreme Court held that Section 7 (1) (c), Bast Punjab Public Safety Act, which authorised imposition of precensorship on a journal was void as unconstitutional. The ratio decidendi of that decision was that the imposition of precensorship on a journal was a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by Article 19(1)(a). 'The liberty of the presa consists in laying no previous restraint upon publications and not in freedom from censure for criminal matter when published.' (Blackatone). The imposition of a security before the publication of any matter would certainly be an extremely unreasonable restriction.

5. We are also of opinion that Section 3 (1) is inconsistent with Article 19(1)(g) of the Constitution which confers on all citizens the right to practise any profession or to carry on any occupation, trade or business. Article 19(6) permits reasonable restrictions on exercise of the right so conferred 'in the interests of the general public'. It was not suggested that the condition of furnishing security before declaration provided for the interests of the general public. It appears to us to, be an unreasonable restriction on the exercise of the right to carry on the business of keeping a printing press.

6. The manner in which a provision like Section 3 (1) can be abused is illustrated by what happened in this case. When the petitioner submit-ted her application for permission to make a declaration, apparently a confidential report was called for from the police. The report was that the petitioner was a communist sympathiser and it was likely that the press will be used for printing prejudicial liserature in furtherance of the aims and policy of the communist party. Actually when the order came to be passed the reasons given were that the petitioner was likely to incite or encourage the commission of cognizable offences involving violence or interference with the maintenance of law by printing objectionable communist literature in her press which was previously used for that purpose by her husband who was a communist detenu It is worth notice that the report of the police did not make any mention about the commission of cognizable offences involving violence.

7. In our opinion, a provision like Section 3 (1), Press (Emergency Powers) Act cannot be allowed to remain on the Statute Book after the comling into force of the Constitution.

8. The writ nisi issued will be made absolute and the orders of the Chief Presidency Magistrate dated 13 2-1950 is hereby quashed.

9. C. M. Ps. Nos. 2503 and 2777 of 1950. These two applications relate to two orders similar to the order which we have quashed in C. M P. No. 1941 of 1950. Following our decision in that case we hereby quash the orders in these two applications also.


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