Judgment

Fazl Ali J. [Dissentry Judgment.]- The question raised in this case relates to the validity of S.7 (i) (c). East Punjab Safety Act, 1949(as extended to the Province of India), which runs as follows : "

The Provincial Government or any authority authorised by it in this behalf if satisfied that such nation is necessary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher or editor -

(c) require that any matter relating to a particular object for class of subjects shall before publication be submitted for scrutiny."

2. It should be noted that the provision of sub-cl.(c) are not in general terms but are confined to a "particular subject or class of subjects", and that having regard to the context in which there words are used, they must be connected with "public safety or the maintenance of public order.

3. The petitioners on whose behalf this provision is assailed, are respectively the Printer (and Publisher) and Editor of an English weekly of Delhi called ORGANIZER , and they pray for the issue of writs of certiorari and prohibition to the Chief Commissioner. Delhi with a view "to examine and review the legality" of and "restrain the operation" of and "quash" the order made by him on 2nd March 1950, under the impugned section, directing them.

"to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies . . . . . . . "

The order in question recites among other things that the Chief Commissioner is satisfied that the "ORGANIZER" has been publishing highly objectionable matter constituting a threat to public law and order and that action to which reference has been made is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order. It is contended on behalf of the petitioners that notwithstanding these recitals the order complained against is liable to be quashed because it amounts to an infringement of the right of freedom of speech and expression guaranteed by Art. 19(1) (a) of the Constitution. Article 19(1) (a) and (2), which are to be read together, run as follows:

"19. (1) All citizens shall have the right

(a) to freedom of speech and expression;

* * * * * * * *

(2) Nothing in sub-cl. (a) of cl. (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. "

4. It is contended that S. 7 (1) (c) of the Act, under which the impugned order has been made, cannot be saved by cl. (2) of Art. 19 of the Constitution, because it does not relate to any matter which undermines the security of, or tends to overthrow, the State. Thus the main ground of attack is that the impugned law is an infringement of fundamental right and is not saved by the so-called saving clause to which reference has been made.

5. There can be no doubt that to impose precensorship on a journal, such as has been ordered by the Chief Commissioner in this case, is a restriction on the liberty of the press which is included in the right to freedom of speech and expression guaranteed by Art. 19 (1) (a) of the Constitution, and the only question which we have therefore to decide is whether cl. (2) of Art. 19 stands in the way of the petitioners.

6. The East Punjab Public Safety Act, 1949, of which S. 7 is a part, was passed by the Provincial Legislature in exercise of the power conferred upon it by S. 100, Government of India Act, 1935, read with entry No. 1 of List II of Sch. 7 to that Act, which includes among other matters public order