Ultra vires the powers of the State Legislature.

The question raised in this petition is as to the constitutional validity of the Prevention of Insults to National Honour Act, Madras Act XIV of 1957. The petitioners, who are accused 6 and 7, stand charged before the Court of District Magistrate, Madura:, with having committed offences under section 5 of that Act read with sections 120-B and 109 of the Indian Penal Code. The 6th accused is said to be the Organising Secretary of the Dravida Munnetra Kazhagam and a member of Anti Hindi Agitation Committee and the 7th accused is the Treasurer of the Kazhagam and Chairman of that Committee, besides being the Deputy Leader of the Opposition in the Madras Legislative Assembly. The Parliament passed the Official Languages Act, XIX. of 1963, which received the assent of the President on 19th May, 1963. The object of the Act is to provide, with reference to Article 343 (3) in P?rt XVII of the Constitution of India, for the languages which may be used for the official purposes of the Union of India, for transaction of business in Parliament, for Central and State Acts ana for certain purposes in High Courts. Section 3 of this Act enacts that notwithstanding the expiration of the period of fifteen years from the commencement of the. Constitution, the English language may, as from the appointed day, continue to be used, in addition to Hindi for all the Official purposes of the Union as before and for transaction of business in Parliament. This section is to come into force on 26th January, 1965. The rest of the provisions, which are to come into force and from. the dates appointed by the Central Government by notification in the Official Gazette, provide for the setting up of a Committee on Official Language, publication of a translation in Hindi of Central Acts, Ordinances, Orders, Rules, Regulations or Bye-laws under the Constitution or any Central Act as also Bills in English introduced in the Parliament, authorised Hindi translation of State Acts in certain cases, optional use of Hindi or other official language in judgments of the High Courts and power to make Rules.

The petitioners before us state that the policy of their party is to protest against the imposition of Hindi as an official language and ‘Hindi neo-imperialism‘ and, in furtherance of such policy, to burn openly and publicly Part XVII of the Constitution of India and to announce in public the names of persons, places, date and hour for doing it. The prosecution has attributed to the 6th accused the act of burning Part XVII of the Constitution at Madras on 6th December, 1963 and the 7th accused a similar act on 19th July, 1963 at Thanjavoor both acts as having been done openly and publicly. Actually the charges framed against them at the trial before the District Magistrate are that they with others conspired to wilfully burn Part XVII of the Constitution and also abetted by delivering public speeches and instigating certain other accused to wilfully burn that part of the Constitution punishable respectively under section 5 of the Prevention of Insults to National Honour Act read with section 120-B of the Indian Penal Code and under the same section of that Act read with section 109 of that Code. While their trial is pending before the District Magistrate, they have moved this Court to quash the charges against them.

The ground on which they seek the relief from the Court is that section 5 of the Prevention of Insults to National Honour Act is ultra vires the powers of the State Legislature and is, in any case, violative of their fundamental rights guaranteed by Article 19 (1) (f) of the Constitution. Mr. K. Narayanaswami Mudaliar who appears for the petitioners, contends that the subject-matter of the Act is national honour and its purpose is to protect it from insults and that the only head of legislative power under which the subject can be brought, is the residuary Entry 97 of Union List of the Seventh Schedule to the Constitution. He refers to the use o