http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: STATE OF MADRAS

       Vs.

RESPONDENT: V.G. ROW.UNION OF INDIA & STATE   IntervenersOF TRAVANCORE

DATE OF JUDGMENT: 31/03/1952

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR  196            1952 SCR  597  CITATOR INFO :  RF         1954 SC  92  (35)  RF         1954 SC 229  (28)  RF         1956 SC 479  (19)  R          1956 SC 559  (4,8,9)  E&R        1957 SC 896  (10)  E          1958 SC 578  (169)  F          1958 SC 731  (21)  F          1959 SC 300  (5)  R          1960 SC 468  (6)  R          1960 SC1080  (40)  R          1960 SC1124  (25,42,64)  R          1961 SC 448  (7)  R          1961 SC 705  (5,11,20)  R          1961 SC 884  (24)  R          1962 SC 123  (15)  R          1962 SC 263  (25)  R          1962 SC 305  (29)  A          1962 SC 316  (35,36)  R          1962 SC1371  (34,64,65,66)  R          1963 SC 996  (2)  R          1964 SC 416  (11)  RF         1967 SC 829  (6,7)  R          1968 SC 445  (14)  RF         1970 SC 898  (58)  R          1970 SC1157  (12)  R          1970 SC1453  (15)  R          1971 SC 530  (259)  R          1971 SC 966  (7)  R          1971 SC1667  (10,25,27)  RF         1973 SC 947  (8)  RF         1973 SC1461  (594,1547)  F          1975 SC 550  (8)  RF         1976 SC1207  (300)  RF         1977 SC1825  (29)  R          1978 SC 597  (132)  F          1978 SC 771  (15,22)  R          1978 SC1457  (62)  R          1979 SC  25  (31)  R          1980 SC 898  (70)  RF         1980 SC1992  (12)  R          1981 SC 873  (19,23)  RF         1981 SC1030  (16)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

MV         1982 SC1325  (32)  R          1984 SC 882  (3)  R          1984 SC1213  (8)  RF         1985 SC 551  (35)  R          1986 SC 515  (80)  R          1986 SC1205  (17)

ACT:  Indian Criminal Law Amendment Act (XIV of 1908) as amended by Indian Criminal Law Amendment (Madras) Act, 1950, ss.  15 (2)(b),  16--Law  empowering State to  declare  associations illegal by notification-No provision for judicial inquiry or for  service of notification on association or  office-bear- ers--Validity of law--Unreasonable restriction  on right  to form  associations--Constitution of India, art. 19 (1)  (c), (4).

HEADNOTE:   Section  15 (2) (b) of the Indian Criminal  Law  Amendment Act,  1908, as amended by the Indian Criminal Law  Amendment (Madras)  Act,  1950, included within the definition  of  an "unlawful  association" an association "which has  been  de- clared by the State by notification in the Official  Gazette to  be unlawful on the ground  (to  be  specified   in   the notification)   that  such  association  (i)  constitutes  a danger  to  the   public  peace, or  (ii)has  interfered  or interferes with  the maintenance of public order or has such interference  for its object, or (iii) has   interfered   or interferes  with  the administration of the law, or has such interference  for  its object."  Section 16 of  the  Act  as amended  provided  that a notification under s. 15  (2)  (b) shall (i) specify the ground on which it is issued and  such other particulars, if any, as may have a bearing on the 598 necessity therefor and (ii) fix a reasonable period for  any officebearer  or  member  of the association  or  any  other person  interested  to make a representation  to  the  State Government  in  respect of the issue  of  the  notification. Under  s. 16 A the Government was required after the  expiry of the time fixed in the notification for making representa- tion  to  place the matter before an Advisory Board  and  to cancel  the notification if the Board finds that’ there  was no  sufficient  cause for the issue  of  such  notification. There was however no provision for adequate communication of the  notification  to  the association and  its  members  or office  bearers.  It  was conceded that the  test  under  s. 15(2)(b)  as amended was, as it was under s. 16 as it  stood before  the  amendment,  a subjective one  and  the  factual existence or otherwise of the grounds was not a  justiciable issue and the question was whether s. 15(2)(b) was unconsti- tutional and void:     Held,   (for  reasons stated below) that  s.  15  (2)(b) imposed restrictions on the fundamental right to form  asso- ciations  guaranteed  by  art. 19 (1) (c),  which  were  not reasonable within the meaning of art. 19 (4) and was  there- fore  unconstitutional and void.  The fundamental  right  to form associations or unions guaranteed by art. 19 (1) (c) of the  Constitution has such a wide and varied scope  for  its exercise, and its curtailment is fraught with such potential reactions  in  the religious, political  and  economic  fiel this,  that  the vesting of the authority in  the  executive Government  to  impose restrictions on such  right,  without

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

allowing  the  grounds  of such imposition,  both  in  their factual  and legal aspects to be duly tested in  a  judicial inquiry,  is  a strong element which should  be  taken  into account  in judging the reasonableness of  restrictions  im- posed  on  the fundamental right under  art.  19(1)(c).  The absence  of  a provision for adequate communication  of  the Government’s  notification  under s. 15(2)(b).  by  personal service  or service by affixture to the association and  its members and office-bearers was also a serious defect. The formula of subjective satisfaction of the Government  or of its officers with an advisory Board to review the materi- als on which the Government seeks to override a basic  free- dom  guaranteed to the citizen, may be viewed as  reasonable only  in very exceptional circumstances and within the  nar- rowest limits.     In  considering  the  reasonableness  of  laws  imposing restrictions on fundamental right, both the substantive  and procedural  aspects of the impugned law should  be  examined from  the point of view of  reasonableness and the  test  of reasonableness,  wherever prescribed, should be  applied  to each   individual statute impugned and no abstract  standard or  general  pattern of reasonableness can be laid  down  as applicable to all cases. The nature of the right alleged  to have been infringed, the underlying purpose of the  restric- tions imposed, the extent and urgency of the evil sought  to be  remedied thereby, the disproportion of  the  imposition, the prevailing conditions at the time should all 599 enter  into the judicial verdict.  In evaluating  such  elu- sive  factors  and forming their own conception of  what  is reasonable, in all the circumstances of a given case, it  is inevitable  that  the  social philosophy and  the  scale  of values  of the judges participating in the  decision  should play an important part, and the limit to their  interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and  the sobering reflection that the Constitution is meant not  only for  people of their way of thinking but for all,  and  that the  majority of the elected representatives of  the  people have,  in  authorising the imposition of  the  restrictions, considered them to be reasonable.     A.K.  Gopalan  v. The State ([1950] S.C.R. 88)  and  Dr. Khare  v.  The State of Punjab ([1950] S.C.R.  519)  distin- guished.

JUDGMENT:     M.  C, Setalvad, Attorney-General for India, (S.  Govind Swaminathan and R. Ganapathi Iyer, with him) for the  appel- lant (State of Madras). C.R. Pattabhi Raman for the respondent.     M C. Setalvad, Attorney-General for India (G. N.  Joshi. with him) for the Union of India.     T.N.  Subrahmanya lyer,   (Advocate-General  Travancore- Cochin  (M.  R. Krishna Pillai, with him) for the  State  of Travancore-Cochin.     1952. March 31. The Judgment of the Court was  delivered by PATANJALI  SASTRI C.J.--This is an appeal from an  order  of the High Court of Judicature at Madras adjudging section  15 (2)(b)  of the Indian Criminal Law Amendment Act, 1908  (Act No.  XIV  of  1908) as amended by the  Indian  Criminal  Law Amendment  (Madras) Act, 1950, (hereinafter referred  to  as the impugned Act) as unconstitutional and void, and quashing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

Government  Order  No. 1517,  Public  (General)  Department, dated  10th  March, 1950, whereby the State  Government  de- clared  a Society called the People’s Education  Society  an unlawful association.     The  respondent,  who was the general secretary  of  the Society, which was registered under the Societies’ Registra- tion Act, 1860, applied to the High Court on 78 600 10th  April,  1950, under article 226  of  the  Constitution complaining  that the impugned Act and the Order dated  10th March, 1950, purporting to be issued there-under   infringed the  fundamental right  conferred on him by article  19  (1) (c)  of the Constitution to form associations or unions  and seeking  appropriate reliefs.The High Court by a full  bench of  three  Judges (Raja-mannar C.J., Satyanarayana  Rao  and Viswanatha  Sastri  JJ.)  allowed the  application  on  14th September,   1950, and granted a certificate  under  article 132. The State of Madras has brought this appeal.    The Government Order referred to above runs as follows:--     "WHEREAS  in  the opinion of the State  Government,  the Association known as the People’s Education Society, Madras, has  for its object interference with the administration  of the  law and the maintenance of law and order,  and  consti- tutes a danger to the public peace;     NOW,  therefore, His Excellency the Governor of  Madras, in  exercise  of the powers conferred by Section 16  of  the Indian Criminal Law Amendment Act, 1908 (Central Act XIV  of 1908) hereby declares the said association to be an unlawful association within the meaning of the said Act.     No  copy of this order was served on the  respondent  or any  other office-bearer of the society but it was  notified in the official Gazette as required by the impugned Act.     The  declared objects of the Society as set out  in  the affidavit of the respondent are:     (a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science;     (b) to encourage, promote, diffuse and popularise polit- ical education among people;     (c)  to encourage, promote and popularise the study  and understanding of all social and political problems and bring about social and political reforms; and 601 (d)  to promote, encourage and  popularise  art,  literature and drama.     It was, however, stated in a counter-affidavit filed  on behalf  of the appellant by the Deputy Secretary to  Govern- ment,  Public  Department, that,  according  to  information received by the Government, the Society was actively helping the Communist Party in Madras which had been declared unlaw- ful in August 1949 by utilising its funds through its Secre- tary for carrying on propaganda on behalf of the Party,  and that  the declared objects of the Society were  intended  to camouflage its real activities.     As the Madras Amendment Act (No. XI of 1950) was  passed on  the 12th August, 1950, during the pendency of the  peti- tion,  which  was taken up for hearing on the  21st  August, 1950, the issues involved had to be determined in the  light of  the original Act as amended. In order to appreciate  the issues it is necessary to refer to the relevant  provisions. Before amendment by the Madras Act, the material  provisions were as follows:-"15.  In this Part-     (1)  "association"  means  any combination  or  body  of persons whether the same be known by any distinctive name or not; and (2)  "unlawful  association" means an  association(a)  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

encourages  or  aids persons to commit acts of  violence  or intimidation or of which the members habitually commit  such acts, or     (b)  which has been declared to be unlawful by the  Pro- vincial Government under the powers hereby conferred.     16.  If the Provincial Government is of opinion that any association  interferes or has for its  object  interference with  the administration of the law or with the  maintenance of  law  and order, or that it constitutes a danger  to  the public peace, the Provincial Government may by  notification in  the  official  Gazette declare such  association  to  be unlawful."     The  amending Act substituted for clause (b) in  Section 15(2) the following clause :-- 602     "(b) which has been declared by the State Government  by notification  in the official Gazette to be unlawful on  the ground  (to  be  specified in the  notification)  that  such association--     (i)  constitutes a danger to the public peace,  or (ii)has  interfered  or interferes with the  maintenance  of public order or has such interference for its object, or     (iii) has interfered or interferes with the  administra- tion of the law, or has such interference for its object".   For the old section 16, sections 16 and 16 A were  substi- tuted as follows:   "16.  (1)  A notification issued under clause (b) of  sub- section  (2)  of section 15 in respect  of  any  association shall-     (a)  specify the ground on which it is issued, the  rea- sons  for its issue, and such other particulars, if any,  as may have a bearing on the  necessity therefor; and     (b)  fix  a reasonable period for any  office-bearer  or member of the association or any other person interested  to make a representation to the State Government in respect  of the issue of the notification.  (2)  Nothing in sub-section ( 1 ) shall require  the  State Government  to disclose any facts which it considers  to  be against the public interest to disclose.      Under  section 16 A the Government is  required,  after the expiry of the time fixed in the notification for  making representations,  to place before an Advisory Board  consti- tuted by it a copy of the notification and of the  represen- tations, if any, received before such expiry, and the  Board is to consider the materials placed before it, after calling for  such further information as it may deem necessary  from the State Government or from any office-bearer or member  of the  association concerned or any other person,  and  submit its  report to the Government.  If it is found by the  Board that  there  is  no sufficient cause for the  issue  of  the notification in respect of the association 603 concerned, the Government is required to cancel the  notifi- cation.     There  is  no amendment of section 17  which  prescribes penalties by way of imprisonment or fine or both for member- ship or management of an unlawful association and for taking part in meetings of such association or making, receiving or soliciting  contributions for purposes thereof.  Section  17 A, which confers power on the Government to notify and  take possession  of places used for the purposes of  an  unlawful association, was amended by the addition of subclauses  2(a) and 2(b) providing for a remedy, where such power was  exer- cised,  by  way of application, within thirty  days  of  the notification in the official Gazette, to the Chief Judge  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

the Small Cause Court or the District Judge according as the place  notified is situated in the Presidency Town  or  out- side,  for "a declaration that the place has not  been  used for  the  purposes  of any unlawful  association".  If  such declaration is made, the Government is to cancel the notifi- cation  in  respect of the place. Section 17B  empowers  the officer  taking  possession of a notified place  to  forfeit movable  property  found therein if, in  his  opinion,  such property" is, or may be used for the purposes of the  unlaw- ful  association" after following the  procedure  indicated. Section 17E  similarly  empowers  the Government to  forfeit funds  of an unlawful association "if it is satisfied  after such  enquiry as it may think fit that such funds are  being used or intended to be used for the purposes of an  unlawful association". The procedure to be followed in such cases  is also  prescribed.  By  section 17F  jurisdiction  of   civil courts, save as expressly provided, is barred in respect  of proceedings taken under sections 17 A to 17E.     By  section 6 of the amending Act notifications  already issued  and not cancelled before the amendment are  to  have effect  as if they had been issued under section 15 (2)  (b) as amended, and it is provided in such cases a supplementary notification  should also be issued  as required in  section 16  (1)( a) and (b) as amended and thereafter the  procedure provided by 604 the  new section 16-A should be followed. It was under  this provision  that the validity of the notification  issued  on the  10th March, 1950, under old section 16 fell to be  con- sidered  in the light of the provisions of the  amended  Act when  the petition came up for hearing in the High Court  on 21st August, 1950.     It  will  be seen that while old  section  16  expressly conferred  on  the Provincial Government  power  to  declare associations  unlawful  if, in its  opinion,  there  existed certain specified grounds in relation to them, those grounds are now incorporated in section 15(2)(b) as amended, and the reference  to  the "opinion" of the Government  is  dropped. This  led to some discussion before us as to whether or  not the grounds referred to in section 15 (2) (b) as amended are justiciable  issues.  if  the  factual  existence  of  those grounds  could be made the subject of inquiry in a court  of law,  the restrictions sought to be imposed on the right  of association  would  not be open to exception, but  then  the Government  would apparently have no use for section 15  (2) (b).  For, it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds  in a  definition clause, which made a declaration by  Govenment the  test  of unlawfulness, rendered the  insertion  of  the words "in its opinion" unnecessary and, indeed,  inappropri- ate, and that the omission of those words could not lead  to any inference that the grounds on which the declaration  was to  be based were intended to be any more  justiciable  than under  the old section 16; more especially as the  "opinion" or  the "satisfaction" of the Government or of its  officers is  still the determining factor in notifying a place  under section 17 A (1) and in forfeiting the movables found there- in under section 17B (1) or the funds of an unlawful associ- ation  under section 17E (1).  The provision for an  inquiry as  to the existence or otherwise of such grounds before  an Advisory  Board and for cancellation of the notification  in case  the  Board  found there was no  sufficient  cause  for declaring  the association as unlawful also pointed, it  was urged, to the same conclusion.  The contention is not 605

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

without  force, and the position was not contested  for  the respondent.  It  may, accordingly, be taken  that  the  test under  section  15  (2) (b) is, as it was  under  the    old section  16, a subjective one  and the factual existence  or otherwise of the grounds is not a justiciable issue.     It  is on this basis, then, that the question has to  be determined  as to whether section 15 (2)(b)as amended  falls within  the limits of constitutionally permissible  legisla- tive  abridgement of the fundamental right conferred on  the citizen  by article 19 (1) (c). Those limits are defined  in clause (4) of the same article.     "(4) Nothing in sub-clause (c) of the said clause  shall affect  the  operation of any existing law in so far  as  it imposes, or prevent the State from making any imposing,  in  the interests of public  order  or  morality, reasonable  restrictions on the exercise of the  right  con- ferred by the said sub-clause."     It  was not disputed that the restrictions  in  question were  imposed "in the interests of public order".  But,  are they "reasonable" restrictions within the meaning of article 19 (4)?     Before proceeding to consider this question, we think it right  to point out, what is sometimes overlooked, that  our Constitution contains express provisions for judicial review of  legislation as to its conformity with the  Constitution, unlike  as in  America where the Supreme Court  has  assumed extensive powers of reviewing legislative acts undercover of the widely interpreted "due process" clause in the Fifth and Fourteenth Amendments. If, then, the courts in this  country face up to such important and none too easy task, it is  not out  of  any desire to tilt at legislative  authority  in  a crusader’s  spirit, but in discharge of a duty plainly  laid upon  them by the Constitution. This is especially  true  as regards  the "fundamental rights ", as to which  this  Court has  been assigned the role of a sentinel on the  qui  vive. While  the  Court  naturally attaches great  weight  to  the legislative  judgment,  it  cannot desert its  own  duty  to determine 606 finally  the  constitutionality of an impugned  statute.  We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in  the new set up are out to seek clashes with the legislatures  in the country.     The  learned Judges of the High Court  unanimously  held that  the  restrictions under section 15 (2)  (b)  were  not reasonable on the ground of-(1)the inadequacy of the  publi- cation of the notification, (2) the omission to fix a  time- limit for the Government sending the papers to the  Advisory Board  or for the latter to make its report,  no  safeguards being  provided against the Government enforcing the  penal- ties  in the meantime, and (3) the denial to  the  aggrieved person of the right to appear either in person or by pleader before  the Advisory Board to make good his  representation. In  addition  to  these grounds one of  the  learned  Judges (Satyanarayana  Rao J.) held that the impugned Act  offended against article 14 of the Constitution in that there was  no reasonable  basis for the differentiation in  treatment  be- tween the two  classes of unlawful associations mentioned in section  15  (2) (a) and (b). The other learned  Judges  did not,  however,  agree with this view. Viswanatha  Sastri  J. further held that the provisions for forfeiture of  property contained  in  the  impugned Act were void as  they  had  no reasonable relation to the maintenance of public order.  The other  two Judges expressed no opinion on this point.  While

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

agreeing  with  the conclusion of the  learned  Judges  that section  15 (2) (b) is unconstitutional and void, we are  of opinion  that  the decision can be rested on a  broader  and more fundamental ground.     This  Court  had  occasion in Dr. Khare’s  ease  (1)  to define the scope of the judicial review under clause (5)  of article  19 where the phrase "imposing  reasonable  restric- tions  on the exercise of the right" also occurs,  and  four out  of  the five Judges participating in the  decision  ex- pressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of  the impugned restrictive (1) [1950] S.C.R. 519, 607 law should be examined from the point of view of reasonable- ness;  that  is to say, the Court should consider  not  only factors  such  as the duration and the   extent of  the  re- strictions,  but also the circumstances under which and  the manner in which their imposition has been authorised.  It is important  in this context to bear in mind that the test  of reasonableness,  whereever prescribed, should be applied  to each individual statute impugned, and no abstract  standard. or  general pattern, of reasonableness can be laid  down  as applicable to all cases.  The nature of the right alleged to have been infringed, the underlying purpose of the  restric- tions imposed, the extent and urgency of the evil sought  to be  remedied thereby, the disproportion of  the  imposition, the prevailing conditions at the time, should all enter into the  judicial verdict.  In evaluating such  elusive  factors and  forming their own conception of what is reasonable,  in all the circumstances of a given case. it is inevitable that the social philosophy and the scale of values of the  judges participating in the decision should play an important part, and  the limit to their interference with legislative  judg- ment  in such cases can only be dictated by their  sense  of responsibility  and self-restraint and the sobering  reflec- tion  that the Constitution is meant not only for people  of their way of thinking but for all, and that the majority  of the elected representatives of the people have, in authoris- ing the imposition of’ the restrictions, considered them  to be reasonable.     Giving  due weight to all the  considerations  indicated above,  we have come to the conclusion that section  15  (2) (b) cannot be upheld as falling within the limits of  autho- rised restrictions on  the right conferred by article 19 (1) (c).   The  right to form associations or  unions  has  such wide  and varied   scope for its exercise, and its  curtail- ment  is fraught with such potential reactions in the  reli- gious  political  and economic fields, that the  vesting  of authority in the executive government to impose restrictions on such right, without allowing the grounds of such  imposi- tion, both in their factual and legal aspects, to be 608 duly  tested  in  a judicial inquiry, is  a  strong  element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by section 15 (2)  (b)  on  the exercise of the  fundamental  right  under article 19 (1) (c); for, no summary and what is bound to  be a largely one-sided review by an Advisory Board, even  where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction  of the Government or of its officers, with  an Advisory  Board thrown in to review the materials  on  which the Government seeks to override a basic freedom  guaranteed to  the  citizen, may be viewed as reasonable only  in  very

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

exceptional  circumstances and within the narrowest  limits, and cannot receive judicial approval as a general pattern of reasonable  restrictions on fundamental rights. In the  case of  preventive  detention, no doubt, this  Court  upheld  in Gopalan’s  case(1) deprivation of personal liberty  by  such means,  but that was because the Constitution  itself  sanc- tions  laws providing for preventive detention, as to  which no  question  of reasonableness could arise in view  of  the language  of  article 21.  As pointed out by Kania  C.J.  at page  121, quoting Lord Finlay in Rex v.  Halliday(2),  "the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based".     The  Attorney-General  placed  strong  reliance  on  the decision in Dr. Khare’s ease(3) where the subjective  satis- faction  of the Government regarding the necessity  for  the externment  of  a person, coupled with a  reference  of  the matter  to an Advisory Board whose opinion, however, had  no binding force, was considered by a majority to be  "reasona- ble"  procedure  for restricting the right  to  move  freely conferred by article 19 (1)(b). The Attorney-General claimed that  the reasoning of that decision applied a  fortiori  to the  present  ease, as the impugned Act  provided  that  the Advisory  Board’s report was binding on the Government.   We cannot agree.  We consider that that ease (1)  [1950] S.C.R. 88.    (2) [1917] A.C. 260,  269.     (3) [1950] S.C.R. 519, 609 is distinguishable in several essential particulars. For one thing, externment of individuals, like preventive detention, is  largely precautionary and based on suspicion.  In  fact, section  4 (1) of the East Punjab Public Safety  Act,  which was  the  subject of consideration in Dr.  Khare’s  case(1), authorised both preventive detention and externment for  the same  purpose and on the same ground namely, with a view  to preventing him from acting in any manner prejudicial to the public  safety  or  the maintenance of public  order  it  is necessary, etc."  Besides, both involve an element of  emer- gency  requiring prompt steps to be taken to prevent  appre- hended  danger to public tranquillity, and authority has  to be vested in the Government and its officers to take  appro- priate  action on their own responsibility.  These  features are  however, absent in the grounds on which the  Government is authorised,under section 15 (2) (b), to declare  associa- tions  unlawful.   These grounds, taken by  themselves,  are factualand not anticipatory or based on suspicion. An  asso- ciation  is  allowed  to be  declared  unlawful  because  it "constitutes"  a  danger or "has interfered  or  interferes" with the maintenance of public order or "has such  interfer- ence  for its object" etc.  The factual existence  of  these grounds is amenable to objective determination by the court, quite  as  much as the grounds mentioned in  clause  (a)  of sub-section  (2)  of section 15, as to which  the  Attorney- General conceded that it would  be incumbent  on the Govern- ment to establish, as a fact, that the association, which it alleged  to be unlawful, "encouraged" or "aided" persons  to commit  acts of  violence, etc.  We are unable  to  discover any  reasonableness in the claim of the Government in  seek- ing,  by its mere declaration, to shut out judicial  enquiry into  the underlying facts under clause (b).  Secondly,  the East  Punjab  Public Safety Act was  a  temporary  enactment which was to be in force only for a year, and any order made there-under  was  to expire at the termination of  the  Act. What may be regarded as a reasonable restriction (1) [1950] S.C.R. 519.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

610 imposed under such a statute will not necessarily be consid- ered  reasonable under the impugned Act, as the latter is  a permanent measure, and any declaration made thereunder would continue  in  operation for an indefinite period  until  the Government should think fit to cancel it. Thirdly, while, no doubt,  the Advisory Board procedure under the impugned  Act provides  a  better safeguard than the one  under  the  East Punjab  Public  Safety Act, under which the report  of  such body  is  not binding on the Government,  the  impugned  Act suffers from a far more serious defect in the absence of any provision  for  adequate communication of  the  Government’s notification under section 15 (2) (b) to the association and its  members or office-bearers. The Government has to fix  a reasonable  period  in the notification  for  the  aggrieved person to make a representation to the Government.  But,  as stated already, no personal service on any office-bearer  or member of the association concerned or service by  affixture at  the office, if any, of such association  is  prescribed. Nor is any other mode of proclamation of the notification at the  place where such association carries on its  activities provided  for   Publication in the official  Gazette,  whose publicity  value  is by no means great, may  not  reach  the members  of  the association declared unlawful, and  if  the time  fixed  expired before they knew  of  such  declaration their  right of making a representation, which is  the  only opportunity  of presenting their case, would be 1oat.   Yet, the  consequences  to  the members  which  the  notification involves are most serious, for, their very membership there- after is made an offence under section 17.     There was some discussion at the bar as to whether  want of knowledge of the notification would be a valid defence in a  prosecution under that section.  But it is not  necessary to enter upon that question, as the very risk of prosecution involved  in  declaring an association unlawful  with  penal consequences,  without providing for adequate  communication of  such declaration to the association and its  members  or office  bearers, may well be considered sufficient to render the imposition of 611 restrictions  by such means  unreasonable.  In this  respect an externment order stands on a different footing, as provi- sion is made for personal or other adequate mode of  service on  the  individual  concerned, who is thus  assured  of  an opportunity  of  putting forward his case.   For  all  these reasons the decision in Dr. Khare’s case(1) is distinguisha- ble  and  cannot  rule the present case as  claimed  by  the learned AttorneyGeneral. Indeed, as we have observed  earli- er,  a  decision dealing with the validity  of  restrictions imposed  on  one of the rights conferred by article  19  (1) cannot  have  much value as a precedent for   adjudging  the validity of the restrictions imposed on another right,  even when  the  constitutional  criterion is  the  same,  namely, reasonableness, as the conclusion must depend on the cumula- tive  effect of the varying facts and circumstances of  each case.     Having given the case our best and most anxious  consid- eration,  we  have arrived at the conclusion,  in  agreement with  the  learned Judges of the High  Court,  that,  having regard to the peculiar features to which reference has  been made,  section 15 (2)(b) of the Criminal Law Amendment  Act, 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950,  falls  outside the scope of  authorised  restrictions under clause (4) of article 19 and is, therefore,  unconsti- tutional  and void.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

   The  appeal  fails  and is  accordingly  dismissed  with costs. Appeal dismissed. Agent for the appellant: P.A. Mehta. Agent for the respondent: S. Subrahmanyan.     Agent  for the Union of India and the State  of  Travan- core-Cochin: P.A. Mehta. (1) [1950] S.C.R. 519, 612