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IN THE HIGH COURT OF BOMBAY
Rajadhyaksha G.S. and Vyas D.V. , JJ.
Appellants: Damodar Ganesh and Ors.
Vs.
Respondent: State
Criminal Revn. Appln. Nos. 1106, 1239 to 1246, 1247 and 1289 to 1310 of 1950 and Criminal Appeal No. 704 of 1950
Decided On: 15.02.1951
Counsels:
For Appellant/Petitioner/Plaintiff: M.P. Vyas, Adv.
For Respondents/Defendant: C.K. Daptary, Adv. General and H.M. Choksi, Adv.
B.Peaceful picketing - distributing leaflets for strike - reasonable restriction - loitering - "moving about with frequent pauses, hanging about doing nothing" But we have seen frequent instances where peaceful picketing may degenerate or has degenerated into violence - Even peaceful picketing, as generally understood, may engender a feeling of fear or fright and thus deter a person from entering or approaching any place of business, if it is carried on in a particular way or by persons of particular status, type, persuasion or antecedents - the offence consists of loitering] at specified places with a particular intent under Clause (a) the intention is to cause person to abstain from doing a thing which such person is entitled to do, and under Clause (b) the intention is to deter a person from entering, approaching and dealing at such places. It will be noticed that in both cases, no overt act other than that of loitering is necessary to constitute an offence - conviction upheld, reduced to sentence already undergone. ( para 6, 7 and 13)
C.Fundamental rights - reasonable restrictions - freedom of expression - Loitering - freedom movement - accused distributing leaflets for strike near the Mill gate - accused has right to freedom of movement and expression - other workers have right to carry on any occupation, trade or business under Article 19(1)(g) - conflicting rights - excercise rights without detriment to the right of others - held, in the case of our Constitution the doctrine of police powers need not be invoked as an attempt has been made in the Constitution itself to define the extent to which and the purposes for which the fundamental rights enumerated in Clause (1) may be restricted - held, a restriction which fractionally interferes with the right of freedom of movement of one section of the public in the interest of the only way in which another section of the public can exercise its right of pursuing its occupation, cannot be said to be unreasonable ( para 10 and 11)
Extract of Judgment : the restriction contemplated by Section 7 (considered by itself and not in its relation to the interference with the rights of others) is not an absolute restriction preventing the petitioners from exercising the right of freedom of speech and movement. It does not prevent the petitioners from going to and assembling at other places and giving free expression to their views in order to persuade the mill workers to abstain from going to the mills. The prohibition imposed by Section 7 of the Act is hedged round by many qualifying clauses. It is with reference to the locality, viz. at or near the place where a person carries on business. It is also a restriction with reference to a particular purpose, viz. to induce a person to abstain from doing a thing which he has a right to do. A restriction which aims at regulating the right to the freedom of movement for a limited purpose and with reference to the place, manner and extent of the exercise of that right cannot be said to be an unreasonable or excessive restriction. ( para 12)
It may be that having regard to the development of the society in which we live the standard of education among the masses and the sense of civic duty among the persons on whom these restrictions are sought to be imposed the Legislature may well have thought fit to enact restrictions in the terms of Section 7 of the Criminal Law Amendment Act. In all such cases, the presumption should be in favour of the reasonableness of the restriction, although the final decision as to whether it is reasonable or not must, under the Constitution, remain with the Court. ( para 13)
Rajadhyaksha, J.
1. These applications and appeal No. 704 of 1950 have been made by petitioners who have been convicted under Section 7 of the Criminal Law Amendment Act XXIII [23] of 1932.
2. The facts in all cases are almost identical, and there is no dispute about them. In August 1950, there was a dispute between the Bombay Millowners Association on the one hand and the employees of the various member mills on the other, with respect to the bonus for the year 1949. The matter was taken to the Industrial Court, Bombay, and it gave an award on 7th July 1950. Against that award the Millowners Association filed an appeal to the Appellate Tribunal on 9th August 1950. This Tribunal was constituted under the Industrial Disputes (Appellate Tribunal) Act of 1950. During the pendency of the appeal before the Appellate Tribunal, the employees of the various mills commenced a strike on 14th August 1950. On 16th August the petitioners went near the mills, and having posted themselves near the gates of the mills, distributed leaflets to the workers. It has been found as a matter of fact that the petitioners did not intimidate any workers, but were merely distributing leaflets and loitering near the mills. It has further been found that they were behaving in such a manner that their acts were sufficient to deter the workers from going to work. Thereupon, all these petitioners were arrested for having committed an offence under Section 7 of the Criminal Law Amendment Act of 1932. All of them were put up for trial before the learned Presidency Magistrate, 4th Court, Girgaum. Several legal contentions were raised particularly with regard to the validity of the Criminal Law Amendment Act of 1932 and also as to whether on the facts found, they could properly be convicted under Section 7 of that Act. The learned Presidency Magistrate rejected all the contentions and convicted the petitioners under Section 7 of the Act and sentenced them to undergo rigorous imprisonment for three months. The appellant in criminal Appeal No. 704 of 1950 was sentenced to pay a fine of Rs. 500. Against those orders this appeal and these applications in revision have been filed.
3. Mr. Vyas has raised four contentions in support of the petitioners case. His first contention is that the Criminal Law Amendment Act was not in force at the time when this offence was committed. Secondly, it is argued that the Act is not a valid piece of legislation. Thirdly, it is contended that the provisions contained in Section 7 of the Act are contrary to Article 19 (1) (a) and (1) (d) of the Constitution and therefore void under Article 13 (1) of the Constitution. And, lastly, it is submitted that the section under which the petitioners have been convicted viz. Section 7 (b) of the Act, does not apply to the facts of these cases.
4. So far as the first contention is concerned, the argument is this. When the Criminal Law Amendment Act (XXIII [23] of 1932) was passed in the year 1932, it contained Sub-section (3) to Section 1 to the effect that the Act would remain in force for three years from its commencement. The Act received the assent of the Governor-General on 19th December 1932, and would therefore have remained in force till 18th December 1935. A bill to amend that Act, one of the provisions of which would have had the effect of deleting Sub-section (3) of Section 1 of the Act and thus placing the enactment permanently on the statute book, was rejected by the then Legislative Assembly on 12th September 1935. It was sent back to the Assembly on 16th September 1935, with a recommendation of the Governor General. The Bill was again rejected by the Assembly on the same day. The Bill was, however, certified by the Governor-General on 4th October 1935 and became a Governor-Generals Act on 17th December 1935, i.e. one day prior to the date on which the Act would otherwise have expired. Then this Governor-Generals Act was itself repealed by the Eepealing and Amending Act xx [2
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