Judgment

Patanjali Sastri J.- These three petns. have been presented to this Ct. under Art. 32, Const. Ind. praying for the issue of writs in the nature of habeas corpus for release of the petnrs. who are respectively the President, Vice-President & Secretary of the Hindu Mahasabha of the Delhi State.

2. The petnrs. were arrested on 22-8-1950 by order of the Dist. Mag., Delhi, made under subs. (2) read with cl. (a) sub-cl. (i) of sub-s. (1) of S. 3, Preventive Detention Act, 1950 (hereinafter refd. to as the Act). The order ran as follows : "Whereas I, Rameshwar Dayal, Dist. Mag., Delhi, am satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so, I Rameshwar Dayal, Dist., Mag, Delhi, hereby order the detention of . .. . . . . . . . . under- sub s. (2) of S. 3 (1) (a) (ii), Preventive Detention Act. Given under my seal and signature."

3. The grounds of detention communicated to the petnrs. were in identical terms, save as to the dates on which the speeches were said to have been made, and read thus : "In pursuance of S. 7, Preventive Detention Act, you are hereby informed that the grounds on which the detention order dated 22-8-1950 has been made against you are that your speeches generally in the past & particulary on . .. . . . August 1950 at public meetings in Delhi has been such as to excite disaffection between Hindus & Muslims & thereby prejudice the maintenance of public order in Delhi & that in order to prevent you from making such speeches it is necessary to make the said order."

4. The petnrs. applied to the H. C. at Simla for similar relief under Art. 226 of the Constitution, but the petns. were dismissed. It appears to have been contended before the learned judges (Khosla & Falshaw JJ.) who heard those petns. that although this Ct. held in A. K. Gopalan v. The State of Madras, 1950 S.C. R. 88, that the provisions of S. 3 of the Act were constitutional & valid, detention under that section was ultra vires & illegal where, as here, it was based on the ground of making speeches prejudicial to the security of the State or the maintenance of public order. This was said to be the result of the later pronouncements of this Ct. in Brij Bhushan v. The State of Delhi, 1950 S. C. R. 605, & Romesh Thappar v. The State of Madras, 1950 S. C. R. 594. This contention was rejected on the ground that no such proviso could be read into S. 3 on the strength of the later decisions refd. to above which related to a different point, viz., the scope of authorised restrictions on the right to freedom of speech conferred by Art. 19 (1). (Falshaw J. (with whom Khosla J. concurred), proceeded, however, to draw attention to what he conceived to be in "anomaly" : while a State Govt. should not be allowed to interfere with the freedom of the press by way of stopping the circulation of newspapers or by pre-censorship of news, the Govt. should, for the same object be entitled to place a person under preventive detention which is even greater restriction on personal liberty than any restriction on a newspaper ever could be." This distinction appeared to the learned judge to be illogical, & he thought that there was "an apparent conflict" between the decisions of this Ct. in Gopalan s case & the other cases, which could only be resolved by this Ct. "It would be well" the learned judge concluded "if the point were raised in this form at an early date in the S. C."

5. No wonder that, after this encouragement, the petnrs. have preferred these petns. raising the same contention before us. On behalf of the petnrs. Mr. Hardy submitted that the provisions of the Act should not be used to prevent a citizen from making speeches though they might be const. to be prejudicial to the maintenance of public order, for, maintenance of public order is not a purpose for which imposition of a restriction on freedom of speech is authorised by the Constitution, as held by this Ct. in the Cross-roads & the Organizer cases. It is t