( 1 ) THIS is a petition filed by Sri Raj Narain, who is a member of the Legislative Assembly of uttar Pradesh under Article 228 of the Constitution of India. Sri Raj Narain is being prosecuted under Section 117. P. C. and Section 7 of the Criminal Law Amendment Act, 1932, in the: court of a Judicial Magistrate at Lucknow. The charge has already been framed in this case and subsequent to the framing of the charge an application on behalf of the petitioner was presented before the Magistrate under Section 432 (1) Gr. P. C. Praying that the case be referred for decision to the High Court. The Magistrate by his order dated the 17th of June, 1960, rejected the prayer as in his opinion sufficient grounds were not made out to make this reference. The petitioner then came before the high Court under Article 228 of the Constitution of India. As the question raised in this petition was a substantial question of law as to the interpretation of the Constitution and the determination of which was necessary for the disposal of the case, it was withdrawn and the matter came before us.

( 2 ) THE question of law raised in this case is that Section 7 of the Criminal Law Amendment Act, 1932 is ultra vires of the Constitution and the proceedings pending against the petitioner were illegal. Before deciding this question we may briefly mention the acts alleged against the petitioner which are the subject-matter of this prosecution.

( 3 ) THE prosecution case is that the petitioner is one of the leaders of the Socialist Party and be distributed about a thousand Printed Pamphlets which bore his signatures inciting the members of his party to do certain acts. From the order of the Magistrate it appears that these acts consisted of a large number of activities. We may cite an extract from the order of the Magistrate which would give an "idea of the acts for which an incitement was given in these Pamphlets. The extract runs as follows:-

"the allegations against the petitioners in this case are that they incited public and party members numbering more than 10 persons to come in thousands and to take possession over parti land, and to distribute same amongst landless Persons, to surround Tahsils with thousands of cultivators who were cultivating land on loss and to continue this act of surrounding till their demands for remission of rent were conceded or they were arrested, to picket liquor shops in hundreds till the shop was closed, to picket peacefully courts, Sales Tax Offices etc. also to colour wash English sign-boards, and to remove English writing at public places, to get grain distributed out of godowns at fair and cheap price, to picket Harijan Sahayak offices and District magistrates office for getting backward classes employed, and to picket in thousands with harijan and backward classes and get work stopped, till they were given employment in suitable proportion and similarly to picket canal, Tube-well and Forest Department offices with thousands of persons in protest against their high handedness. "

We do not want to express any opinion at this stage whether the allegations contained in the above extract would be made out against the Petitioner or not. We have only to decide that the incitement for the commission of these acts is punishable under Section 7 of the Criminal Law amendment Act or not. We have further to decide that even if they are punishable under the said act, whether the said Act is ultra vires of the Constitution Or not.

( 4 ) SECTION 7 of the Criminal Law Amendment Act, 1932 runs as follows :-

"7. (i) Whoever - (a) with intent to cause any person to abstain from doing or to do any act which such person has a right to do or to abstain from doing, obstructs or uses violence to or intimidates such person or any member of his family or person in his employ, or loiters at or near a place where such person or member or employed person resides or works or carries on business or happens to be, or persistently follows h