Brij Bhushan & Anr. V. The State of Delhi

Cituation: 1950 AIR 129
Court: Supreme Court of India
Bench: Fazal Ali, Saiyid
Date of Judgment: May 26, 1950

Comment:

Introduction

Freedom of Speech and Expression is a very important right but this right is subject to certain reasonable restrictions. In the case of Brij Bhushan & Another vs. The State of Delhi, the question that was raised was whether Section 7(1) (c) of East Punjab Public Safety Act, 1949 which authorized the imposition of such a restriction fall within the reasonable restrictions under clause (2) of Article 19 of the Indian Constitution.

Facts

The petitioners in the present case approached the Supreme Court under Article 32 of the Indian Constitution. Mr. Brij Bhushan is the printer and publisher and K.R. Halkani is the editor of an English weekly of Delhi, called the Organizer. On 2nd March, 1950 the Chief Commissioner of Delhi issues an order against the petitioners under Section 7(1) (c) of the East Punjab Safety Act, 1949. The order states that the petitioners are required to send a duplicate copy of all the communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by news agency, before publication for the purpose of scrutiny. According to the respondents the articles published in the Organizer harms the public safety and public order in the state. The petitioners claim that the order violates the fundamental right of speech and expression and the order passed by the respondent does not come under the reasonable restrictions enshrined under Article 19 (2) of the Indian Constitution. Thus, the petitioners had approached the court to issue of writs of certiorari and prohibition to the respondent and to examine the legality of the order made by the respondent.

Issues involved

The main question involved in this case is the constitutional validity of Section 7(1) (c) of the impugned Act. Furthermore the question involves whether Section 7(1) (c) which authorizes the imposition of such a restriction falls within the reservation of clause (2) of Article 19 of the Constitution.

Arguments on behalf of Petitioner

Mr. Ganpat Rai, learned counsel supporting the case of the petitioner, has contended that the order passed by the Chief Commissioner of Delhi under Section 7(1) (c) of the East Punjab Public Safety Act, 1949, is violative of Article 19(1) (a). He also contended that the order passed by the respondent does not come under the reasonable restrictions as enshrined under Article 19(2) of the Indian Constitution. The counsel argues on the point of Constitutional validity of Section 7(1)(c) of the impugned Act which was passed to provide special measures to ensure public safety and maintenance of public order.

Arguments on behalf of the Respondent

Mr. P.A. Mehta, learned counsel appearing for the respondent has, however, contended that the Organizer, English weekly of Delhi, has been publishing highly objectionable matter. Such matters pose a threat to public law and order. The order passed by the respondent was necessary for the purpose of preventing or combating activities prejudicial to the public safety or for the maintenance of public order. He contended that the order passed by the respondent comes under the reasonable restriction of Article 19(2) of the Constitution.

Summary of the Court decision and Judgement

Considering the arguments of both the parties in defense of their opposing claims the Bench decided that the question before them was whether the impugned act was constitutionally valid and whether the act comes under reasonable restrictions of Article 19(2) of the Indian Constitution.

The Court established that pre-censorship of press violates the liberty given to them and also violates the freedom of speech and expression. Section 7(1) (c) of the impugned Act was not a law relating to matters which undermine the security of, or tends to overthrow the State. Therefore it cannot come under the ambit of Article 19(2) of the Constitution. The Court allowed the petition and quashed the impugned order of the Chief Commissioner of Delhi.

Analysis

Fazl Ali J. dissented his opinion from the case of Romesh Thapar v. The State of Madras and the reasons for his dissent were elaborated in Brij Bhushan v. State of Delhi, where the issue was essentially the same. In this case, S. 7(1) (c) of the East Punjab Public Safety Act, which allowed pre-publication scrutiny of material “prejudicial to public safety” or the maintenance of public order essentially, pre-censorship, was challenged. The majority followed the decision and reasoning in Romesh Thappar case. But on the other hand Fazl Ali J. held that public order”, “ public safety, “sedition” and “undermining the security of… the State” essentially amounted to the same thing. Applying somewhat convoluted logic, he held that because sedition “undermines the security of the State usually through the medium of public disorder… therefore it is difficult to hold that public disorder or disturbance of public tranquility is not matters which undermine the security of the State.”

Article 19(2) of the Constitution authorizes the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.” To understand the Supreme Court’s public order jurisprudence, it is important to break down the sub-clause into its component parts, and focus upon their separate meanings. Specifically, three terms are important: “reasonable restrictions”, “in the interests of”, and “public order”.

The Supreme Court’s public order jurisprudence can be broadly divided into three phases. Phase One (1949 – 1950), which we may call the pre-First Amendment Phase, is characterized by a highly speech-protective approach and a rigorous scrutiny of speech-restricting laws. Phase Two (1950 – 1960), which we may call the post-First Amendment Expansionist Phase, is characterized by a judicial hands-off approach towards legislative and executive action aimed at restricting speech. Phase Three (1960 – present day), which we may call the post-First Amendment Protectionist phase, is characterized by a cautious, incremental move back towards a speech-protective, rigorous-scrutiny approach. This classification is broad-brush and generalist, but serves as a useful explanatory device.

The decisions in Romesh Thappar and Brij Bhushan led to the passage of the First Amendment, which substituted the phrase “undermines the security of, or tends to overthrow, the State” with “public order”, added an additional restriction in the interests of preventing an incitement to an offence, and – importantly – added a the word “reasonable” before “restrictions”.

The newly-minted Article 19(2) came to be interpreted by the Supreme Court in Ramji Lal Modi v. State of UP[1] . At issue was a challenge to S. 295A of the Indian Penal Code, which criminalized insulting religious beliefs with an intent to outrage religious feelings of any class. The challenge made an over-breadth argument: it was contended that while some instances of outraging religious beliefs would lead to public disorder, not all would, and consequently, the Section was unconstitutional. The Court rejected this argument and upheld the Section. It focused on the phrase “in the interests of”, and held that being substantially broader than a term such as “for the maintenance of”, it allowed the government wide leeway in restricting speech. In other words, as long as the State could show that there was some connection between the law, and public order, it would be constitutional. The Court went on to hold that the calculated tendency of any speech or expression aimed at outraging religious feelings was, indeed, to cause public disorder, and consequently, the Section was constitutional. This reasoning was echoed in Virendra v. State of Punjab[2] (1957), where provisions of the colonial era Press Act, which authorized the government to impose prior restraint upon newspapers, were challenged. The Supreme Court upheld the provisions that introduced certain procedural safeguards, like a time limit, and struck down the provisions. Notably, however, the Court upheld the imposition of prior restraint itself, on the ground that the phrase “in the interests of” bore a very wide ambit, and held that it would defer to the government’s determination of when public order was jeopardized by speech or expression.

In Ramji Lal Modi and Virendra, the Court had rejected the argument that the State can only impose restrictions on the freedom of speech and expression if it demonstrates a proximate link between speech and public order. The Supreme Court had focused closely on the breadth of the phrase “in the interests of”, but had not subjected the reasonable requirement to any analysis. In earlier cases such as State of Madras v. V.G. Row[3], the Court had stressed that in order to be “reasonable”, a restriction would have to take into account the nature and scope of the right, the extent of infringement, and proportionality. This analysis failed to figure in Ramji Lal Modi and Virendra. However, in Superintendent, Central Prison v. Ram Manohar Lohia[4], the Supreme Court changed its position, and held that there must be a “proximate” relationship between speech and public disorder, and that it must not be remote, fanciful or farfetched. Thus, for the first time, the breath of the phrase “in the interests of” was qualified, presumably from the perspective of reasonableness. In Lohia, the Court also stressed again that “public order” was of narrower ambit than mere “law and order”, and would require the State to discharge a high burden of proof, along with evidence.

Lohia marks the start of the third phase in the Court’s jurisprudence, where the link of proximity between speech and public disorder has gradually been refined. In Babulal Parate v State of Maharashtra[5] and Madhu Limaye v. Sub-Divisional Magistrate[6] , the Court upheld prior restraints under S. 144 of the CrPC, while clarifying that the Section could only be used in cases of an Emergency. Section 144 of the CrPC empowers executive magistrates (i.e., high-ranking police officers) to pass very wide-ranging preventive orders, and is primarily used to prohibit assemblies at certain times in certain areas, when it is considered that the situation is volatile, and could lead to violence. In Babulal Parate and Madhu Limaye, the Supreme Court upheld the constitutionality of Section 144, but also clarified that its use was restricted to situations when there was a proximate link between the prohibition, and the likelihood of public dirsorder.

In recent years, the Court has further refined its proximity test. In S. Rangarajan v. P. Jagjivan Ram[7] , the Supreme Court required proximity to be akin to a “spark in a powder keg”. Most recently, in Arup Bhuyan v. State of Assam[8] , the Court read down a provision in the TADA criminalizing membership of a banned association to only apply to cases where an individual was responsible for incitement to imminent violence (a standard borrowed from the American case of Brandenburg).[GB1]

Lastly, in 2015, it has seen the first instance of the application of Section 144 of the CrPC to online speech. The wide wording of the section was used in Gujarat to pre-emptively block mobile internet services, in the wake of Hardik Patel’s Patidar agitation for reservations. Despite the fact that website blocking is specifically provided for by Section 69A of the IT Act, and its accompanying rules, the Gujarat High Court upheld the state action.

The following conclusions emerge:

  • “Public Order” under Article 19(2) is a term of art, and refers to a situation of public tranquility/public peace, that goes beyond simply law-breaking
  • Prior restraint in the interests of public order is justified under Article 19(2), subject to a test of proximity; by virtue of the Gujarat High Court judgment in 2015, prior restraint extends to the online sphere as well.
  • The proximity test requires the relationship between speech and public order to be imminent.

Conclusion

Brij Bhushan won the case. The Supreme Court upheld the liberty of the press and said that pre-censorship violates the fundamental right of freedom of speech and expression. The Court also established that only such restrictions can come under the provision of Article 19(2) which harm the security of the State, or tends to overthrow the State. Section 7(1) (c) does not undermines any of the above case and thus is not a reasonable restriction posed by the Chief Commissioner of Delhi. The publisher and the editor of the Organizer can now publish any material which does not harm the security of the State; friendly relations with foreign state; public order; decency or morality; contempt of Court; defamation; incitement to an offence; and the sovereignty and integrity of India, without any scrutiny. Chief Commissioner of Delhi cannot come in the way of the Organizer.

[1]Ramji Lal Modi v State of UP 1957 AIR 620.

[2] Virendra v State of Punjab 1957 AIR 896.

[3] State of Madras v V.G. Row 1952 AIR 196.

[4] Superintendent, Central Prison v Ram Manohar Lohia 1960 AIR 633.

[5] Babulal Parate v State of Maharashtra 1961 AIR 884.

[6] Madhu Limaye v Sub-Divisional Magistrate 1971 AIR 2486.

[7] S. Rangarajan v P. Jagjivan Ram 1989 SCC (2) 574.

[8] Arup Bhuyan v. State of Assam, (2011) 3 SCC 377

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