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It was a provision for the imposition of pre censorship on a journal. Ratio |
Patanjali Sastri J. (as he then was) (1) [1950] S.C.R 594, 597. Ratio |
(2) (1877)96 U S 727 ; ; (3) (1937) 303 U S 444 ; ; (4) ; , 6o8. Ratio |
121 who delivered the majority judgment observed at p. 608: " There can be little doubt that the imposition of precensorship on a journal is 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). Ratio |
As pointed out by Blackstone in his Commentaries " the liberty of the Press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Ratio |
(Blackstone 's Commentaries, Vol. Ratio |
IV, pp. 151, 152). Ratio |
" These are the only two decisions of this Court which involve the interpretation of article 19 (1) (a) and they only lay down that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation and that the liberty of the press is an essential part ... |
There is however, a considerable body of authority to be found in the decisions of the Supreme Court of the United States of America bearing on this concept of the freedom of speech and expression. Ratio |
vs Bombay Co. 16 122 Ltd. (1) and State of Bombay vs R.M.D. Chamarbaugwala (2). Ratio |
Grosjean vs American Press Co. (3), was a case where a statute imposed a license tax on the business of publishing advertisements and it was observed at p. 668: " The evils to be prevented were not the censorship of the press merely, but any action of the Government by means of which it might prevent such free and gene... |
The statute was there struck down as unconstitutional because in the light of its history and of its present setting it was seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public was entitled in virtue of the constitutional guarantees. Ratio |
The following passage from the dissenting opinion in The Associated Press vs The National Labour Relations Board (4) is also instructive: " If the freedom of the press does not include the right to adopt and pursue a policy without governmental restriction, it is a misnomer to call it freedom. Ratio |
" It was also observed there at p. 965: " Due regard for the constitutional guarantee requires that the publisher or agency of the publisher of news shall be free from restraint in respect of employment in the editorial force. Ratio |
" Schneider vs Irvingtor (5) was concerned with the effect of the Municipal Regulations against littering of (1) [1952] S.C. R. I I 12, I 120. Ratio |
(2) 4, 918. Ratio |
(3) ; , 249; go L. Ed. 66o, 668. Ratio |
(4) 136; ; 963. Ratio |
(5) (1939) 308 U S 147; ; , 164. Ratio |
123 streets. Ratio |
In the course of its decision the Court made the following observations at p. 164: " This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. Ratio |
The phrase is not an empty one and was not lightly used. Ratio |
It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties. Ratio |
" Non interference by the State with this right was emphasized in Thomas vs Collins (1) at p. 448: " But it cannot be the duty, because it is not the right, of the State to protect the public against false doctrine. Ratio |
The very purpose of the First Amendment is to foreclose public authority from I assuming a guardianship of the public mind through regulating the press, speech, and religion. Ratio |
In this field every person must be his own watchman for truth, because the forefathers did not trust any Government to separate the true from the false for us. . . Ratio |
In 93 L. Ed.at p. 1151 is given a summary of the decisions of the Supreme Court of the United States of America on this subject under the heading " The Supreme Court and the right of Free Speech and Press " and it contains at p. 1153 the following passage under the caption " Right in General : Freedom from Censorship a... |
The very purpose of the first Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion; it rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare ... |
There is room for regulation of the ways and means of invading privacy. Ratio |
No such leeway is granted the invasion of the right of free speech guaranteed by the First Amendment. Ratio |
Until recent years that had been the course and direction of constitutional law. Ratio |
Yet recently the Court in this and other cases has engraved the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate " within reasonable limits " the right of free speech. Ratio |
This to me is an ominous and alarming trend. Ratio |
The free trade in ideas which the framers of the Constitution visualised disappears. Ratio |
In its place there is substituted a new orthodoxy an orthodoxy that changes with the whims of the age or the day, an orthodoxy which the majority by solemn judgment proclaims to be essential to the safety, welfare, security, morality, or health of Society. Ratio |
Free speech in the constitutional sense disappears. Ratio |
Limits are drawn limits dictated by expediency, political opinion, prejudices or some other desideratum of legislative action. Ratio |
" It is clear from the above that in the United States of America: (a) the freedom of speech comprehends the freedom of press and the freedom of speech and press are fundamental personal rights of the citizens; (b)the freedom of the press rests on the assumption that the widest possible dissemination of information fro... |
This is the concept of the freedom of speech and expression as it obtains in the United States of America 125 and the necessary corollary thereof is that no measure can be enacted which would have the effect of imposing a pre censorship, curtailing the circulation or restricting the choice of employment or unemployment... |
Such a measure would certainly tend to infringe the freedom of speech and expression and would therefore be liable to be struck down as unconstitutional. Ratio |
The press is however, not immune from. Ratio |
It was observed in Grosjean vs American Press Co. (1): " It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the Government; But this is not an ordinary form of tax but one single in kind with a long history of hostile... |
The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most patent of all restraints upon misgovernment, the suppress... |
The tax here involved is bad not because it takes money from the pockets of the appellees. Ratio |
If that were all, a wholly different question would be presented. Ratio |
It is bad: Because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guarantees. Ratio |
A free press stands as one of the great interpreters between the Government and the people. Ratio |
To allow it to be fettered is to fetter ourselves. Ratio |
" (1) (1935) 297 U S 233, 249; ; , 668. Ratio |
126 In The Associated Press vs National Labour Relations Board (1), it was held that the freedom of the press safeguarded by the First Amendment was not abridged by the application in the case of an editor employed by the Associated Press to determine the news value of the items received and to rewrite them for transmi... |
It was further observed at p. 960: " So it is said that any regulation protective of union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press. PRE |
We think that the contention not only has no relevance to the circumstances of the instant case but is an unsound, generalization." Murdock vs Pennsylvania (2), was a case of a license fee for the sale of religious books and Mr. Justice Frankfurter in his dissenting opinion at p. 1311 observed: " A tax upon newspaper p... |
Such a tax might be invalid if it invidiously singled out newspaper publishing for bearing the burden of taxation or imposed upon them in such ways as to encroach on the essential scope of a free press. Ratio |
If the Court could justifiably hold that the tax measures in these cases were vulnerable on that ground, I would unreservedly agree. Ratio |
But the Court has not done so, and indeed could not. " In Oklahoma Press Publishing Co. vs Walling (1), and in Mabee vs White Planis Publishing Co. (4) the Federal Fair Labour Standards Act was held applicable to the press and it was observed in the former case at p. 621: " Here there was no singling out of the press f... |
Rather the Act 's purpose was to place (1) ; ,136; ; , 963. Ratio |
(2) (1942) 319 U S 105, 136 ; ; , 1311. Ratio |
(3) ; 194; go L. Ed. 614, 621. Ratio |
Nothing in the Grosjean case (1), forbids Congress to exempt some publishers because of size from either a tax or a regulation which would be valid if applied to all. Ratio |
" The Constitution of the United States of America Analysis and Interpretation Prepared by the Legislative Reference Service, Library of Congress, summarises the position thus at p. 792 : " The Supreme Court, citing the fact that the American Revolution " really began when. . . that Government (of England) sent stamps ... |
With respect to license or privilege taxes, however, they stand on a different footing. Ratio |
Their privilege is granted by the Constitution and cannot be withheld by either State or Federal Government. Ratio |
" The application to newspapers of the Anti Trust Laws, the National Labour Relations Act, or the Fair Labour Standards Act, does not abridge the freedom of the press. Ratio |
" The Laws regulating payment of wages have similarly been held as not abridging the freedom of speech and expression and the following observations in the same publication (at p. 988) in regard to the Minimum Wage Laws are apposite: "MINIMUM WAGE LAWS: The theory that a law prescribing minimum wages for women and chil... |
But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad ,limits control practice; in the business labor field, so long as specific constitutional prohibitions are not violated and so long a... |
" While therefore no such immunity from the general laws can be claimed by the press it would certainly not be legitimate to subject the press to laws which take away or abridge the freedom of speech and expression or which would curtail circulation and thereby narrow the scope of dissemination of information, or fette... |
Laws which single out the press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media, prevent news papers from being started and ultimately drive the press to seek Government ai... |
Such laws would not be saved by article 19(2) of the Constitution. Ratio |
This Court had occasion to consider the scope of article 19(2) in Brij Bhushan & Anr. Ratio |
vs The State of Delhi (1), where Fazl Ali J. in his dissenting judgment observed at p. 619. Ratio |
" It must be recognized that freedom of speech and expression is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guarded by the Court. Ratio |
It must also be recognised that free political discussion is essential for the proper functioning of a democratic government, and the tendency of the modern jurists is to deprecate censorship though they all agree that " liberty of the press " is not to be confused with its " licentiousness (1) [1950) S.C.R. 605, 608. ... |
129 But the Constitution itself has prescribed certain limits and this Court is only called upon to see whether a particular case comes within those limits. Ratio |
" Unless, therefore, a law enacted by the Legislature comes squarely within the provisions of article 19 (2) it would not be saved and would be struck down as ' unconstitutional on the score of its violating the fundamental right of the petitioners under article 19 (1) (a). Ratio |
In the present case it is obvious that the only justification for the enactment of the impugned Act is that it imposes reasonable restrictions in the interests of a section of the general public, viz., the working journalists and other persons employed in the newspaper establishments. Ratio |
It does not fall within any of the categories specified in article 19 (2), viz., " In the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to. Ratio |
contempt of court, defamation or incitement to an offence. Ratio |
" Article 19 (2) being thus out of the question the only point that falls to be determined by us is whether the provisions of the impugned Act in any way take away or abridge the petitioners ' fundamental right of freedom of speech and expression. Ratio |
It was contended before us by the learned Attorney General that it was only legislation directly dealing with the right mentioned in article 19 (1) (a) that was protected by it. ARG |
If the legislation was not a direct legislation on the subject " article 19 (1) (a) would have no application, the test being not the effect or result of legislation but its subject matter. Ratio |
" As the preventive detention order results in the detention of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1), (a), (b), (c), (d), (e) and (g) have been infringed. Ratio |
17 130 same argument was urged in respect of the rest of the rights mentioned in sub clauses (b), (c), (d), (e) and (g). Ratio |
Although this argument is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment Linder the relevant section of the Indian Penal Code. Ratio |
So considered, the argument must clearly be rejected In spite of the saving clauses (2) to (5), permitting abridgement of the rights connected with each of them punitive detention under several sections of the Penal Code, e. g., for theft,, cheating, forgery and even ordinary assault, will be illegal. Ratio |
Unless such conclusion necessarily follows front the article, it is obvious that such construction should be avoided. Ratio |
In my opinion, such result is clearly not the outcome of the Constitution. Ratio |
The article has to be read. Ratio |
without any pro conceived notions. Ratio |
So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses. Ratio |
If there is a legislation directly attempting to control a citizen 's freedom of speech or expression, or his right to assemble peaceably and without arms, etc,, the question whether that legislation is saved by the relevant saving clause of article 19 will arise. Ratio |
If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub clauses is abridged, the question of the application of article 19 does not arise. Ratio |
The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detent 's life. Ratio |
On that short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19 (1) generally must fail. Ratio |
Any other construction put on the article, it seems to me, will be unreasonable." This opinion was expressed by Kania C. J. alone, the other learned judges forming the Bench not expressing themselves on this question. Ratio |
This passage was, however cited, with approval by a Bench of this 131 Court in Ram Singh & Ors. Ratio |
vs The State of Delhi (1). Ratio |
It was held by the Full Court in that case that though personal liberty is sufficiently comprehensive to include the freedoms enumerated in article 19 (1) and its deprivation would result in the extinction of these freedoms, the Constitution his treated these constitutional liberties as distinct fundamrntal rights and ... |
(2) of article 19 and may therefore be void, an order of preventive detention cannot be held to be, invalid merely because: " the detention is made with a view to prevent the making of speeches prejudicial to the, maintenance of public order. . . ." This was also a case of detention under the Preventive Detention Act a... |
Public order was not one of the categories mentioned in article 19 (2) as it then stood, and any restriction imposed upon the freedom of speech and expression could nit be justified on that ground, the only relevant ground in that connection then being undermining of the security of the State or its overthrow. Ratio |
A restriction on the freedom of speech and expression ill the maintenance of public order would therefore not have been justified under article 19 (2) and if the Court had come to the conclusion that there was an infringement of the right of freedom of speech and expression the order could not have been saved under art... |
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