Satyanarayana Rao J.
1. This is a petn. under Article 226, Const. Ind. for the issue of a writ of certiorari for calling the records & quashing the order of the State of Madras in G. O. No. Ms. 1517 Public General dated 10-3-1950 declaring under Section 16, Criminal Law Amendment Act, 1908, the People's Education Society as an unlawful assocn. The petnr. is the General Secretary of the People's Education Society registered in November 1947 under the Societies Registration Act, 1860 (XXI  of 1860), & is also a barrister-at-law & an advocate of this Court & the Supreme Ct.
2. The objects of the Society as stated in the affidavit of the petnr. are among others
"(a) to encourage, promote, diffuse, & popularise useful knowledge in all science & more specially Social Science; (b) to encourage, promote, diffuse & popularise political education among people; (c) to encourage, promote or popularise the study & understanding of all social & political problems & bring about social & political reforms; & (d) to promote, encourage & popularise are, literature & drama."
The notfn. by the resp. the State of Madras, dated 10-3-1950 under Section 16, Criminal Law Amendment Act, 1908, declaring the Society an unlawful assocn. is in the following terms :
"Whereas in the opinion of the State Govt. the Assocn. known as the People's Education Society, Madras, has for its object interference with the administration of the law & the maintenance of law & order, & constitutes a danger to the public peace;
Now, therefore, His Excellency the Governor of Madras, in exercise of the powers conferred by Section 16, Criminal Law Amendment Act, 1908 (Central Act XIV  of 1908) hereby declares the said Assocn. to be an unlawful assocn. within the meaning of the said Act."
(Sd.) K. RAMUNNI meNON,
3. After the aforesaid declaration, it is alleged in the affidavit of the petnr. that the City Police searched the office of the said society purporting to act under a search warrant issued by the Comr. of Police, Madras, under Section 12, Madras Maintenance of Public Order Act (XXIII  of 1949) & seized certain articles. The petnr. denies that the objects of the society were those stated in the notfn. & he also asserts that the order, that is, the notfn. was not served upon the petnr. & that he was never given any opportunity or warning before the order was made. On 31-3-1950 the Govt. passed a further order under Section 17 (E) (3), Criminal Law Amendment Act, 1908, declaring their intention to forfeit to the Govt. an amount of Rs. 2405-14-0 belonging to the Society in the hands of Messrs. Best & Co. Ltd., as the money was intended to be used for the purpose of the unlawful assocn. namely, the People's Education Society, Madras. Notice of this intention was also given to Messrs Best & Co. Ltd., who are in possession of the funds. The amount, in question, it is alleged in the affidavit, represents compensation money for non-delivery of certain rotary press materials & the petnr. alleges that this fund was not intended to be used for any unlawful purpose. The order of the Govt. dated 10-3-1950 is impugned in the affidavit as being illegal & void as the Criminal Law Amendment Act, 1908 became void on 26-1-1950 as being inconsistent with the fundamental rights guaranteed under Part III, Const. Ind. more particularly the rights specified under Articles 19, 21 & 31 of the Constitution. The petnr. also questions the legality of the search & the order of the Govt. of 81-8-1950 proposing to forfeit the funds in the hands of Messrs. Best & Co.
4. On behalf of the resp. the Deputy Secretary to the Govt. of Madras filed a counter affidavit in which it is asserted that the real objects of the society were not those contained in its Memo. of Assocn. but it was intended really to be a propaganda organisation of the Madras branch of the Communist Party & was formed by the leading Communists of Madras, the first Secretary of the Assocn. being Mr. M. R. Venkataraman, who was also Secretary of the Madras Committee of the Communist Party of India. It is admitted by the Deputy Secretary in the counter affidavit that the assocn. had ceased to function from March 1949 as all the prominent communists had either been detained or gone underground. The assocn. owns a house, No. 4, Rundall's Road, Vepery, which was purchased for a sum of Rs. 55,000 in or about 29-11-1947. The Society placed an order for the purchase of rotary printing press which arrived in Madras on 5-2-1948 but with some parts missing & was taken delivery of by the petnr. & M.R. Venkataraman on 5-2-1948. The press was thereafter sold by the petnr. to one Sadanand on 25-4-1949. Though the Society was not in a position to function according to the allegations in the counter affidavit, the petnr. as its joint Secretary continues to collect the rent from the premises. It is claimed in the counter affidavit that the order of Govt. of 10-3-1960 declaring the said assocn. to be an unlawful assoen. within the meaning of Section 16, Criminal Law Amendment Act, 1908, was perfectly justified in the circumstances stated in it.
5. Sub-clause (2) of Section 15, Criminal Law Amendment Act, 1908 (unamended) defines an "unlawful assocn" as meaning an assocn.
"(a) which 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 Provincial Govt. under the powers hereby conferred."
The power to declare an assocn. unlawful is conferred on the Provincial Govt. by Section 16 which is as follows :
"If the Provincial Govt. is of opinion that any aasocn. interferes or has for its object interference with the administration of the law or with the maintenance of law & order, or that it constitutes a danger to the public peace, the Provincial Govt. may, by notfn. in the official Gazette, declare such assocn. to be unlawful."
If, after an assocn. is declared an unlawful assocn. a member continues to be a member or takes part in any of its activities or collects funds he is liable to be punished with imprisonment for a term which may extend to six months or with fine or with both under Section 17 of the Act. There are also other penal consequences enumerated in the Act which might follow as a result of the declaration under Section 16.
6. The present appln. was filed by the petnr. on 10-4-1950, & a rule nisi was issued by this Ct. on 11-4-1950, After the decision of the S. C. in A.K. Gopalan v. State of Madras, (the judgment in which was delivered on 19-5-1950) the State of Madras passed the Indian Criminal Law (Amendment) (Madras) Act, 1950 (Madras Act XI  of 1950) which was published in a Gazette Extraordinary of Fort St. George on 16-8-1950. By this Act the definition of an "unlawful assocn." in Section 15 (2) (b), Indian Criminal Law Amendment Act, 1908, has been substituted by the following clause :
"(b) which has been declared by the State Govt. by notfn. in the Official Gazette to be unlawful on the ground to be specified in the notfn.) that such assocn.
(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."
7. For Section 16 of the unamended Act, two new sections, Sections 16 & 16-A have been substituted. These two sections provide a procedure for the issue of a notfn. declaring an assocn. unlawful & for reference to an Advisory Board constituted under Section 16A to decide about the existence of a sufficient cause for the issue of the notfn. If there be no sufficient cause in the opinion of the Advisory Board, justifying the notfn. the State Govt. has to cancel the notfn. The procedure in these two sections is somewhat on the lines of the Madras Maintenance of Public Order Act. Section 16 requires that the notfn. issued under Clause (b) of Sub-section (2) of Section 15 in respect of any assocn. should specify the grounds on which it was issued, the reasons for its issue & such other particulars, if any, as may have a bearing on the necessity for the issue of the notfn. It also fixes a reasonable period within which any office-bearer or member of the assocn. or any other person interested may make a representation to the State Govt. in respect of the issue of the notfn. The State Govt. is prohibited by Sub-section (2) of Section 16 from disclosing any facts which it considers to be against the public interest to disclose. After the expiry of the time fixed in the notfn. for making representation, Section 16A requires that the State Govt. should place the matter before an Advisory Board constituted in accordance with the provisions of Sub-section (2) of the same section. What the Advisory Board should do after a reference is made is provided in Sub-section (3) of Section 16A. Sub-clause (4) requires that the Advisory Board should express its opinion whether or not there was sufficient cause for the issue of the notfn. in respect of the assocn. concerned & should also indicate whether the opinion is unanimous or is only that of the majority of the members. Sub-section (5) negatives the right of the persons affected to appear in person or by an advocate before the Advisory Board & the proceedings of the Advisory Board & its report, except the portion relating to its opinion or that of the majority of its member, are made confidential. Under Sub-section (6) if there is no sufficient cause in the opinion of the Advisory Board or the majority of its members, the State Govt. has to cancel the notfn. in respect of such assocn.
8. Section 17 of the unamended Act is not touched in any manner by this Amending Act. Section 17A & Section 17-F have also been amended by Sections 4 & 5 of the Amending Act. Section 6, Amending Act, contains certain saving provisions. It states :
"6 (1) All notfns. issued in respect of assocns. by the State Govt. before the commencement of this Act under Section 16 of the said Act & not cancelled before such commencement shall, an from such commencement, have effect as if they had been issued under Section 15 (2) (b) of the said Act as amended by this Act ;
Provided as follows :
(i) In the case of every assocn. to which any such notfn. applies, the State Govt. shall issue & supplementary notfn. as soon as may be after the commencement of this Act, specifying the ground, the reasons & the particulars, if any, referred to in Section 16 (1) (a) of the said Act as amended by this Act, & fixing a reasonable period for the making of the representations referred to in Section 16 (1) (b) of the said Act amended as aforesaid.
(ii) the procedure prescribed by Section 16A of the said Act as amended by this Act shall be followed thereafter." (The other parts of the section are omitted as not relevant.)
9. By the time this appln. came on for hearing before us on 21-8-1950, the Amending Act came into force. As Section 16 of the unamended Act which conferred upon the Provincial Govt. a power to declare an assocn. unlawful was repealed by the Amending Act, Mr. M. K. Nambiar, the learned Advocate for the petnr. raised a preliminary point that as there is no power to issue a notfn. under any of the provisions of the new Act & as the new Section 15(2) (b) merely assumes the existence of such a power but does not expressly confer it upon the State Govt., the whole proceedings are void. Though the validity of the provisions of the Act were impugned in the affidavit as offending Articles 19, 21 & 31, Const. Ind. in the arguments before us the learned advocate for the petnr. restricted his contentions to Articles 14 & 19 of the Const. According to him, the provisions of the un-amended Act & the Amending Act are inconsistent with Articles 14 & 19, Sub-clauses (1) (a), (c) & (f) of the Constitution & are void. The third contention was that if the unamended Act particularly Section 1C became void after 26-1-1950, a notfn. issued under a void section could not be validated by Section 6, Amending Act.
10. On a consideration of Section 16 of the unamended Act & Section 15 (2) (b) introduced by the Amending Act, it would seem at first sight that as the unamended Section 16 is no longer in force the contention that there is no power conferred on the State to declare an assocn, unlawful is well founded. Section 15 (b) of the unamended Act expressly states that the definition includes "an assocn. declared to be unlawful by the Provincial Govt. under the powers hereby conferred". The power "hereby conferred" contemplated by that clause is undoubtedly Section 16 of the unamended Act. In the Amending Act while Section 16 is omitted all that we have is Clause (b) of Sub-section (2) of Section 15 which does not espressly confer a power on the State Govt. to declare an aasocn. unlawful. It assumes, by its language, that the State Govt. has such a power. No doubt the power to declare an assocn. unlawful is not a natural or common law or prerogative right of the State. It can acquire such a power only under an enactment conferring such power. The learned Advocate General who appeared for the resp. contended that though the power was not espressly conferred by the new Sub-clause (b) of Sub-section (2) of Section 15 it is implied in it by necessary intendment, & it must be hold that the Legislature must be deemed to have conferred such a power. He drew our attention to various Acts of the Central & Provincial Legislatures, particularly of Madras, from 1886, wherein as a matter of fact, the legislative practice followed was to include in the definition section an implied power to issue a notfn. As examples I may refer to Sub-clause (19) of Section 2, Cantonments Act, 1924 (II  of 1924); Sub-clause (4) of Sub-section (8) of Section 8, Madras Prohibition Act, 1937 (X  of 1937) & Sub-clause (4) of Sub-section (13) of Section 3, Madras Abkari Act, 1886 (I  of 1886) None of the clauses in the various Acts, however, came up for judicial consideration. We cannot altogether ignore the legislative practice adopted from such a long time & which remained unchallenged. There is also some authority in support of the view that such a power may be implied. Maxwell on Interpretation of Statutes, Edn. 9 at p. 361 sets out an instance in point & states :
"The enactment that at the election of poor law guardians the votes should be taken & returned as the Comrs. should direct, impliedly authorised the appointment of a returning officer. An Act, which, after empowering the parishioners to elect an assistant overseer, provided that this power should cease where an asst. overseer had been appointed by the Poor Law Comrs. (who bad previously no power to make such an appointment) & while their order of appointment remained in force, would seem to have given the Comrs. that power by implication."
An implied power for the Justices to summarily convict under Section 57, Contagious Diseases (Animals) Act, 1870 was recognised in Cullen v. Trimble, (1872) 7 Q. B. 416 : (41 L. J. M. C. 132) by the Ct. of Appeal in England. In Baxter v. Ah Wav, 8 commonwealth Rep. 626, the question no doubt that directly came up for consideration was whether the power conferred upon the Governor General in Council under Section 52 (g), Customs Act, 1901, to prohibit importation of goods was a delegation of a legislative power or conditional legislation. From an examination of the sections referred to in that case it appears, however, that Section 52 of the Act enumerated prohibited goods in a series of sub-sections & included in it, Sub-section (g) which is in these terms : "All goods the importation of which may be prohibited by proclamation". It was not disputed in that case that that clause conferred ample power to issue a proclamation prohibiting the importation of goods & was treated by Griffith C. J. as authorising the issue of such a proclamation. Of course this is not a decision on the question but the legislative practice in other countries also seems to be in consonance with that which has obtained in this country from a very long time. In a recent decision of the Bombay H. C. which had to construe Section 4, Bombay Prize Competition Tax Act (XI  of 1939) it was held that when the section required that prize competition shall not be conducted unless a licence in respect of such a competition has been obtained by the promoter thereof from the Collector carried with it also the implied power assumed in the section on the part of the Collector to issue a licence : Y. R. Parpia v. Chambarbagawalla, A. I. R. (36) 1949 Bom. 109 : (50 Bom. L. R. 728).
11. Mr. Nambiar, the learned advocate for the petnr., emphasised the well-known principle of interpretation of statutes that it is the duty of the Ct. to ascertain the meaning of the Act as it stands & the Ct. has nothing to do with the unexpressed intention of the Legislature. Reference was made in support of this view to Attorney-General v. West Riding of Yorkshire County Council, (1907) A. C. 29 : (76 L. J. K. B. 97) & to the observations of Lord Cambell C. J. in the well-known case of Woodward v. Watts, (1853) 2 El. & Bl. 452 : 118 E. R. 836, where at p. 457 (838) the learned Chief Justice stated :
"I must take the words as I find them, & following the golden rule, construe the words so as to put a just construction on them. If this leads to hardship or inconvenience, the remedy must be sought from the Legislature."
This rule of construction, it mast be observed, does not at all come into conflict with the principle that from the language employed in a Statute a power may be implied, if it is possible to do so. The language of the new Sub-clause (b) of Sub-section (2) of Section 15 proceeds undoubtedly on the assumption that the State Govt. has power to issue the notfn. It was also argued that the statute being a penal one, must receive a strict construction & nothing should be implied which is not expressly provided for. No doubt it was the practice in England in the earlier decisions to observe a distinction of that kind between criminal statutes & civil Acts. The tendency, however, of modern decisions is to do away with this difference as pointed out by Maxwell on Interpretation of Statutes (Edn. 9) at p. 288 :
"The tendency of modern decisions, upon the whole, is to narrow materially the difference between what is called a strict & beneficial construction. All Statutes are now construed with a more attentive regard to the language, & criminal statutes with a more rational ragard to the aim & intention of the Legislature than formerly."
If the language & the contest of the Statute which has to be construed compal the Ct. to imply a power, there is no reason to make a distinction between a penal statute & a civil one & adopt different rates of interpretation, having regard to their nature. The State Govt. has, therefore, in my opinion, undoubted power to issue a notfn. declaring an assocn. unlawful under the new Sub-clause (b) of Sub-section (2) of Section 15. It would have been better for the draftsman of the new Act to have made it explicit instead of leaving it to be implied so as to avoid any room for controversy.
12. I shall now examine, how & to what extent the provisions of the Criminal Law Amendment Act, unamended & amended, are inconsistent with the fundamental rights in part III of the Constitution. It is not seriously disputed by the learned Advocate General though he did not concede, that Section 16 of the unamended Act, is void as being inconsistent with the fundamental rights recognised in the Constitution. That section confers upon the Provincial Govt. the power to declare an assocn. unlawful if it is of opinion that the assocn. interferes or has for its object inferference with the administration of law or with the maintenance of law & order or that it constitutes a danger to the public peace. That declaration is final & conclusive & cannot be questioned in a prosecution under Section 17 of the Act. The accused has no right or opportunity to show that the declaration was erroneous & was not justified. It is a naked arbitrary power conferred upon the Provincial Govt. to impose a restriction on the right of a free assocn. conferred by Article 19(c) of the Constitution & is of such an absolute nature which cannot & indeed, was not attempted to he supported as a reasonable restriction on the exercise of the right. In my opinion, it offends also Article 14 as it denies equal protection of the laws to persons. As no serious attempt was made on behalf of the resp. to support the legality of that provision it is unnecessary to give more reasons to hold that it is inconsistent with the provisions of Part III of the Constitution. In view of Article 13 of the Constitution, it must be held that Section 16 which is inconsistent with the provisions of the Constitution is void.
13. The more important question on which there was serious controversy before us was whether the Amended Act is consistent with Articles 14 & 19 of the Constitution.
14. Our task in interpreting Article 19 of the Constitution has to a largo extent been lightened by the recent pronouncement by the S. C. in Gopalan's case, & one or two other later decisions. It has been decided authoritatively by a majority of the learned Judges of the S. C. in Gopalan's case, that Article 19 has no application to a legislation dealing with preventive or punitive detention. The observations of Kama C. J. in that case afford useful guidance in the manner of approach & the method of interpreting Article
19. The learned Chief Justice observed at p. 180 :
"The Article has to be read without any preconceived notions. So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably & without arms, etc., the question whether that legislation is saved by the relevant saving clause of Article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged, the question of the application of Article 19 does not arise. The true approach is only to consider the directness of the legislation & not what will be the result of the detention otherwise valid, on the mode of the detenu's life."
The Article has no application says the learned Chief Justice to a legislation directly aimed at preventive or punitive detention.
15. The fundamental rights, that is, rights of freedom conferred by Sub-clauses (a) to (g) of Clause (1) of Article 19 & the effect of the restrictions contained in Clauses (2) to (6) of the same Article have also been considered & the scope of the Articles viewed in the light of the restrictions imposed has been clearly laid down by the learned Chief Justice at p. 181 :
"In order to appreciate the true scope of Article 19 it is useful to read it by itself & then to consider how far the other articles in Part III affect or control its meaning. It is the first article under the caption "Right to freedom.' It gives the rights mentioned in Article 19(1)(a) and 19(1)(g) to all citizens of India. These rights read by themselves & apart from the controls found in Clauses (2) to (6) of the same Article, specify the different general rights which a free citizen in a democratic country ordinarily has. Having specified those rights, each of them is considered separately from the point of view of a similar right in the other citizens, and also after taking into consideration the principle that individual liberty must give way, to the extent it is necessary, when the good or safety of the people generally is concerned. Thus the right to freedom of speech & expression is given by Article 19(1)(a). But Clause (2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Ct. or any matter which offends against decency or morality or which Undermines the security of, or tends to overthrow, the State. Clause (2) thus only emphasises that while the individual citizen has a free right of speech or expression, he cannot be permitted to use the same to the detriment of a similar tight in another citizen or to the detriment of the State. Thus, all laws of libel, slander, contempt of Ct. or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech & expression. Similarly, that right is also subject to laws which prevent undermining the security of the State or are against activities which tend to overthrow the State. A similar analysis of Clauses (3) & (4) shows similar restrictions imposed on similar grounds. In the same way Clause (5) also permits reasonable restrictions in the exercise of the right to freedom of movement through the territory of India, the right to reside & settle in any part of the territory of India or the right to acquire, hold & dispose of property, being imposed by law provided such reasonable restrictions on the exercise of such right are in the interest of the general public. Reading Article 19 in that way as a whole the only concept appears to be that the specified rights of a free citizen are thus controlled by what the framers of the Constitution thought were necessary restrictions in the interest of the rest of the citizens."
To a similar effect are the observations of Das J. at p. 288 where the learned Judge observed :
"It will be noticed that of the seven rights protected by Clause (1) of Article 19, six of them, namely, (a), (b), (c), (d), (E) &, (g) are what are said to be rights attached to the person (jus personarum). The remaining item, namely, (f) is the right to property (jus rerum). If there were nothing else in Article 19 these rights would have been absolute rights and the protection given to them would have completely debarred parliament or any of the State Legislatures from making any law taking away or abridging any of those rights. But a perusal of Article 19 makes it abundantly clear that none of the seven rights enumerated in Clause (1) is an absolute right for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the several Clauses (2) to (6) of that Article. Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights. The net result is that the unlimited legislative power given by Article 246 read with the different legislative lists in Schedule VII is cut down by the provisions of Article 19 & all laws made by the State with respect to these rights must in order to be valid observe these limitations. Whether any law has in fact transgressed these limitations is to be ascertained by the Ct. & if in its view the restrictions imposed by the law are greater than what is permitted by Clauses (2) to (6), whichever is applicable the Ct. will declare the same to be unconstitutional &, therefore, void under Article 13. Here again there is scope for the application of the 'intellectual yardstick of the Ct. If, however, the Ct. finds, on scrutiny, that the law has not overstepped the constitutional limitations, the Ct. will have to uphold the law, whether it likes the law or not."
This pronouncement of the highest Ct. in the land as the final authority on the interpretation of the Const. Ind. makes it unnecessary for me to define in my own words the ambit of Article 19 of the Constitution.
16. Before I proceed to examine the provisions of the Act now impugned, it is necessary to deal with the extreme contention urged on behalf of the petnr. by his learned advocate. It is said that the restrictions imposed by Clauses (2) to (6) of Article 19 are in effect & substance identical with the power of the S. C. under the American Constitution to determine the validity of a legislation by the Congress & the States under the 5th & 14th Amendments respectively under the "Due Process of Law clause." Under the guarantee given by the American Constitution by the "Due Process of Law" the S. C. arrogated to itself an unlimited power to declare a law invalid if according to the majority of the Judges of the S. C. that law was unreasonable. The Judges of the S. C. applied their own intellectual yardstick to test the validity & reasonableness of a piece of legislation. The S. C. is supreme under the American Constitution while the Parliament or the Legislature is supreme under the English Constitution. The makers of our Constitution did not recognise either the supremacy of the Ct. or that of the Legislature. The function of the Ct. under our Constitution, it seems to me, is only to see whether the Legislature kept itself within bounds laid down by the Constitution in enacting a law or has overstepped those limitations. If the Ct. considers that a particular law is unreasonable notwithstanding that it was within the competence of the Legislature & that it did not transgress any of the limitations imposed by the Constitution, the Ct. has no power to declare its invalidity on that ground. The meaning of the expression "due process of law" is elastic & varied from time to time as will be evident from a perusal of Willia on Constitutional Law, Weaver's Constitutional Law and Willoughby on the Constitution of the United States. As a corrective to the unlimited power claimed & exercised by the S. C. of the U. S. A. the doctrine of "Police Powers" was brought into being. The scope of "due process of law" clause was considered by the learned Judges in Gopalan's case, in interpreting Article 21 of the
Constitution & it was held that the framers of our Constitution deliberately refrained from adopting the American model & employed in Article 21 language which excluded such a conception. The learned Chief Justice at p. 185 considered the meaning of "due process of law" & its scope in the light of the authorities & summarised his view in the following words :
"The discussion of the meaning of 'due process of law' found in Willis on Constitutional Law & in Colley's Constitutional Limitations shows the diverse meanings given to that expression at different times & under different circumstances by the S. C. of U. S. A., so much so that the conclusion reached by these authors is that the expression means reasonable law according to the view of the majority of the Judges of the S. C. at a particular time holding office. It also shows how the moaning of the expression was widened or abridged in certain decades. Moreover, to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play. That doctrine shortly put, is that legislation meant for the good of the people generally, & in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large, has not to be tested by the touchstone of the 'due process of law' formula."
17. The other learned Judges also discussed this subject elaborately in the light of the authorities & rejected the contention that Article 21 of the Constitution should be interpreted in the light of that formula (see for example Mookerjee J. at pp. 272 & 275 & Das J. at pp. 298 & 299). Das J. summarised his conclusion at p. 299 in these words :
"The net result is that the all inclusive & indefinable doctrine of due process of law has in America now been brought back to its original status of a procedural due process of law by the enunciation & application of the new doctrine of police power as an antidote or palliative to the former. Who knows when the pendulum will swing again?"
Clauses (3) to (6) of Article 19 alone use the expression "reasonable restrictions" & not Clause (2). As pointed by my Lord, the Chief Justice, in the course of the arguments, if the extreme contention of the petnr. that the doctrine of due process of law had been embodied in Clauses (3) to (6) of Article 19, Sub-clause (2) gives no room for applying a standard of reasonableness in determining the validity of the restrictions contained in Sub-clause (2). Sub-clause (2) imposes a restriction upon the right to freedom of speech & expression conferred by Sub-clause (a) of Clause (1) of Article 19 & it enacts :
"Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to libel, slander, defamation, contempt of Ct. or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State."
If the argument of the petnr. was correct it will be open to a Ct. in respect of a legislation affecting the right guaranteed under Article 19(1)(a) to examine the reasonableness of the law relating to libel, slander, defamation, etc. & to declare the restrictions imposed under such law as unreasonable. But the language of Clause (2) excludes a judicial review of such law on that ground. Further even in the other clauses the restrictions are directed to a particular object, for example in Clause (3) the object of the restriction permitted is in the interest of public order & the function of the Ct. in testing the validity of an Act is to see whether the reasonable restrictions imposed by the law are in the interests of the public order. To the same effect are also the other clauses. It is, therefore, impossible to accept the contention that the power of the Ct. to declare a law invalid as contravening Clauses (2) to (6) of Article 19 is co-extensive with the power of the S. C. under the American Constitution. The framera of our Constitution have deliberately abstained from adopting the doctrine of "due process of law" whether it is under Article 21 or under Article 19. If they intended to adopt it instead of providing elaborate limitations, varying with the nature of the right or freedom conferred under Clause (1) of Article 19 they would have easily adopted a simpler & more compendious formula as in the 5th Amendment or the 14th Amendment of the American Constitution. I am unable, therefore, to accept the extreme contention of the learned advocate for the petnr.
18. In the light of the foregoing I now proceed to examine whether all or any of the provisions of the Criminal Law Amendment Act, 1908, as amended by Madras Act XI  of 1950 contravene the provisions of Article 19. The clauses relied on are (a), (c) & (f). It has been accepted before us that the Act is a direct legislation dealing with the right to form assocns. or unions & attempt to control the freedom recognised by that clause. The object of the legislation is no doubt preventive but it is agreed that in its ultimate results it is punitive in character. It is also common ground that the special provisions relating to preventive detention in Article 22 of the Constitution have no application. It was strongly urged on behalf of the petnr. that the Act practically deprived the right of a citizen to form an assocn. or union & the restrictions imposed are unreasonable. Clause (c) has been very strongly relied on in the course of the arguments. The right to form an assocn., it is conceded, includes the right to continue an assocn. The Act, therefore, does not only prevent formation of assocns. but also prevent continuance of assocns. &, therefore, affects the fundamental rights of the citizen in Sub-clause (c) of Article 19. The restriction on this right is contained in Clause (4) of the said article. It says :
"Nothing in Sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause."
As laid down by the S. C. the only question that arises for consideration, therefore, is whether the restrictions are reasonable & whether they were imposed in the interests of public order or morality.
19. Under Section 16 of the unamended Act a declaration could be made if the object of the assocn. was such as to interfere with the administration of the law or with the maintenance of law & order, or that it constitutes a danger to the public peace. The notfn. actually issued under that section by the Govt. on 10-8-1950 practically follows the language of the section though instead of using the disjunctive "or" uses the conjunctive "and". The new Section 15 (b) empowers the Govt. to declare as unlawful on all or any of the three grounds specified in Sub-clause (b) but none of them include the maintenance of law. The object of both the Acts is undoubtedly to impose restriction in the interest of public order. The use of "and" instead of "or" in the notfn. has given room for the contention that the notfn. in any event cannot be deemed to be valid under the amended Act as the maintenance of law & maintenance of order are two distinct matters & the maintenance of law is not one of the grounds recognised by the new section & it is, therefore, uncertain on which of the grounds the decision to declare the assocn. unlawful was based. If permissible grounds are mixed up with grounds not so permissible, it is difficult to infer that the order was issued on permissible grounds alone; & if there is such an indefiniteness it should be held that the notfn. is invalid under the new Act. I do not, however, think that the expression 'maintenance of law' is something different & wholly dissociated from the expression 'maintenance of public order'. The two words "law" & "order" are two component parts of the same idea & cannot be dissociated. It cannot, therefore, be held that the notfn. is invalid on that ground. The object of the two acts is undoubtedly, therefore, the maintenance of public order & therefore, one of the conditions in Sub-clause (4) of Article 19 is satisfied.
20. The next question is whether the restrictions imposed are reasonable. I feel no difficulty in answering the question under the unamended Act. An unrestricted power is conferred by Section 16 on the Provincial Govt. to declare an asaocn. unlawful & the satisfaction of the existence of the grounds enumerated in the section is the subjective satisfaction of the Provincial Govt. & not of an external authority. The declaration carried with it a finality & it is not a justiciable right. No machinery is provided to test the correctness of the order by the persons affected & no opportunity is provided for them to show that the assocn. is not such as falls within the purview of the grounds enumerated in the section. The declaration carries with it the penalties specified in Sections 17A to 17E. The declaration cannot be questioned in a proceeding under Section 17 nor under Section 17A or 17B or 17E. The penalties contemplated under these sections proceed on the basis that the declaration is valid & is not subject to any judicial review. A total prohibition of a right of a person to defend himself is not only a restriction on the right to defend himself but a negation of it. It cannot be argued & indeed no attempt was made to support the position that the provision in Section 16 is a reasonable restriction.
21. The position, however, under the amending Act is somewhat different; & the arguments of the learned Advocate General were directed mainly to establish that the rigour of the law under Section 16 of the unamended Act has been considerably modified by the new Act & that ample provision was made in the new Act to enable the person aggrieved to defend himself & show that the declaration was not justified. Both under the unamended Act & the new Act, so far as "associations" falling under Sub-clause (a) of Sub-section (2) of Section 15 are concerned, there is an undoubted right of the members of the assocn. to show that they are not within the mischief of that clause, whether it is a prosecution under Section 17 of the other penalties imposed under Sections 17-A to 17-E. That such is the position was not seriously challenged. But then both the unamended Act & the-new Act place assocns. declared unlawful by the Provincial Govt. & the other assocns. within Section 15 (2) (a) on a different footing altogether. While the new Act to some extent seems to modify the rigor of the law it does not provide an adequate & just remedy for the person aggrieved to challenge the correctness of the declaration. In the first place there is no provision in the Act for service of the grounds on any of the members or office-bearers of the assocn. The learned Advocate General attempted to argue that the issue of a notfn. which contains the grounds on which the declaration is made is itself a good substitute for services of the grounds on the members or office-bearers of the assocn. In support of this contention, however, no autho-rity has been cited before us. An assocn. is defined in Section 15 (1) of the Act as "any combination or body of persons whether the same be known by any distinctive name or not." If the assocn. has a distinctive name & has a place of business, the ordinary mode of serving the notice may be to leave a notice at the place where the asaocn. carries on its business. If it has no distinctive name the assocn. can be described only by the names of persons who form the combination or the names of the body of persons. The Govt., therefore, must know in such an event, the names of the persons who constitute the combination or assocn. A combination cannot be of known & unknown persons so as to make both the known & unknown persons punishable under Section 17 by virtue of the notfn. If the persons are unknown it is difficult to see how the Govt. could be in a position to state in their grounds that the assocn. has for its object all or any of the objects specified in Section 15 (2) (b). In my view it is impossible to accept the argument that the issue of a notfn. tantamounts to service of the grounds on the aggrieved persons.
22. In vol. 6 p. 392 of Halsbury's Laws of England, Edn. 2 of the seven important liberties such as the right of personal freedom, the right of security of property, freedom of speech etc., the following right is also recognised as a fundamental right :
"It seems that there should be added to this list the following rights which appear to have become well established :
(b) the right of the subject to have any case affecting him tried in accordance with the principles of natural justice particularly the principles that a man may not be a judge in his own cause, & that no party ought to be condemned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case . . . ."
That due observance of procedural requirements is obligatory even when a judicial power is exercised by the executive was laid down by Bowen L. J. in Leeson v. General Council of Medical Education, (1889) 43 Ch. D. 366 at p. 383 : (59 L. J. ch. 233). The principle is no doubt part of the British system of law but has been followed & applied in this country. This implies, that there must be a due enquiry & the accused person must have notice of what he was accused & should have a reasonable opportunity of putting forward his case before he is deprived of all or any of his liberties or rights of freedom. To defend himself he must have notice of the grounds on which he is sought to be deprived of his freedom.
23. The Act as amended does not provide for testing the correctness or the validity of the notfn. in the ordinary manner in a Ct. of law when the man is accused of an offence under Section 17 or is sought to be deprived of his liberty. If he is charged with an offence under Section 17 it should ordinarily be open to him to show that the notfn. was not justified; but instead of that, the Act provides a machinery for ascertaining the opinion of the Advisory Board as a substitute for trial under ordinary law. No doubt the notfn. itself besides specifying the grounds fixes a reasonable period for any office-bearer or member of the assocn. or any other person interested, to make a representation to the State Govt. regarding the notfn. This assumes that the person had knowledge of the notfn. If he makes a representation there is no time limit within which the State Govt. should place the matter before the Advisory Board constituted under Sub-section (2). Nor is there any time-limit within which the Advisory Board should give its opinion. It has been pointed out in this Ct. on more than one occasion in dealing with cases under the Madras Maintenance of Public Order Act that as the Legislature did not fix any period of time for the steps to be taken by the Govt. it has resulted in grave injustice to the person detained as he was kept in prison without even an enquiry by the Advisory Board for a period longer than would be permissible if the detention order was confirmed. Notwithstanding these decisions it passes one's comprehension why the Legislature did not take the elementary precaution of fixing a time limit for the State Govt. to send the papers to the Advisory Board & for the Advisory Board to submit its opinion. The person has no right to lead any evidence & the matter has to be disposed of merely on the representation made by him & the information, if any, which the Advisory Board would be able to obtain under Sub-clause (3). The declaration does not require any confirmation by the Govt. as a result of the opinion of the Advisory Board & therefore, it may be assumed that its operation commences from the date of the notfn. unless ultimately the State Govt. decides to cancel it consequent on the adverse opinion of the Advisory Board or the majority of its members. The proceedings of the Advisory Board are of course confidential & there is no appeal provided to any authority against the order of the State Govt. The Legislature seems to have followed to some extent the procedure permitted by the Constitution under Article 22 in respect of the preventive detention.
24. The satisfaction regarding the existence of the grounds is of course the subjective satisfaction of the Govt. & this is expressly stated in the unamended Section 16 & I think the omission of the expression "opinion of the Govt." in Section 15 (2) (b) makes no difference. It, therefore, comes to this: that by an executive notfn. a person is effectively prevented from showing that the assocn. is not unlawful which entails the consequence that he is liable to the penalties provided in Sections 17, 17A to E. Is there any justification or reason for abridging the right of the person to defend himself & to have the matter tried in the ordinary manner ? No doubt in cases of emergency the initial order passed upon a subjective satisfaction may be permissible but at a subsequent stage a right should be given to the citizen to establish if he can, that that satisfaction was based upon no or on insufficient data. If this right is denied I think it is an unreasonable restriction on the freedom conferred by Article 19(1)(c). Suppose for example, in the case of an offence falling under Section 302, I. P. C. a procedure of this description is substituted for an ordinary trial in a criminal Ct, Can it for a moment be contended that as there is the intervention of a tribunal of some sort the right is made justiciable & the legislation is valid ? There is practically no difference between a situation of that description & a situation envisaged under the new Act, except that before punishing a man an executive declaration is interposed which is not open to challenge. The learned Advocate-General drew our attention to passages from the judgment of the S. C. in Gopalan's case, where the
majority of the Judges upheld subjective satisfaction as permissible. But the remarks of the learned Judges were confined to preventive detention & not to punitive detention. If an offence under the ordinary law is committed or a new offence is created by the Statute there is no reason for not adopting the ordinary modes of procedure for trying such offences.
25. From this it does not necessarily follow that in certain cases & for good reason it may not be open to the Legislature to introduce a trial by other impartial tribunals than by ordinary Cts. in the land. The trial in such a case must be a real trial in the sense that the person accused has a reasonable opportunity of placing his case before the tribunal & a guarantee of a fair trial. If this is not provided it is difficult to hold that the abridgment of the right to defend oneself in the ordinary mode is not an unreasonable restriction on the right.
26. The learned Advocate General pressed upon us the recent decision of the S. C. in N. B. Khare v. State of Delhi, which
related to an externment order made by the Dist. Mag. of Delhi under the East Punjab Public Safety Act, 1949. Dr. Khare was served with the order of externment directing him to remove himself from Delhi district & not to return to it for a period of three months. The Madhya Pradesh Govt. passed an order directing him to reside in Nagpur. The validity of the first order was challenged by a writ of habeas corpus under Article 32, Const. Ind. as the Act offends the freedom of movement under Sub-clause (d) of Clause (1) of Article 19. Section 4 (6) of the Punjab Act provided that where an externment order has been made the grounds may be communicated to the externee by the authority making the order & in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under Section 3 (4) of the Act. The Act did not provide as to what the Advisory Tribunal should do after the matter was referred to it. The main argument in the case was whether the restrictions imposed by the Act were reasonable restrictions within the meaning of Clause (6) of Article 19. In interpreting Clause (5) of Article 19 the learned Chief Justice observed at p. 441 :
"In my opinion Clause (5) must be given its full meaning. The question which the Ct. has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given to the executive authority to administer the law is not relevant for tie true interpretation of the clause. The Ct. on either interpretation will be entitled to consider whether the restrictions on the right to move throughout India, i. e., both as regards the territory & the duration, are reasonable or not. The law providing reasonable restriction on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Ct. the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the Ct. under Clause (5). Similarly if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration, of the Ct., as it has to determine if the exercise of the right has been reasonably restricted."
27. One of the grounds taken was that there was no obligation on the part of the externing authority to serve the grounds upon the externee as Section 4 (6) of the Act only provided that the grounds "may" be communicated to the externee & not "shall". The learned Chief Justice construed the word "may" in the context as equivalent to "shall" & that, therefore, it was obligatory to serve the grounds even if the externment order was only for a period of three months. The absence of an express provision in the Act regarding the duties of the Advisory Board, it was held did not invalidate the Act as the reference necessarily carried with it the implication that it is to be considered by the Advisory Board. The majority of the learned Judges, therefore, were of the opinion having regard to the duration of the order which was only three months & in view of the construction placed on Section 4 (6) that it was obligatory upon the externing authority to serve the grounds, that the restrictions were not unreasonable. Mukherjee J., however, took a different view. No doubt in that case the question was not whether the substitution of an Advisory Board for an ordinary tribunal was not an unreasonable abridgement of the right of the subject as no such contention apparently was raised. It must also be noticed that it was not a case of preventive detention within the meaning of Article 22 of the Constitution. Notwithstanding this, the effect of substitution of an Advisory Board and a procedure analogous to that of preventive detention was not considered unreasonable by the majority of the learned Judges. It is, therefore, argued with some force by the learned Advocate General that in the light of this decision the procedure laid down by the new Act should be held reasonable. I think, however, that the scope of the two Acts are entirely different. The orders contemplated under the Punjab Act are only for a limited duration; whereas the declaration under the present Act continues in force until it is cancelled by the State Govt. Thereafter if the person continues to be a member of such an unlawful assocn he is liable to be punished under Section 17. His property is liable to be forfeited; the premises in which the assocn. carried on its activities are liable to be taken possession of by the State Govt. Further, under the present Act, there is no provision at all for serving the grounds on which the notfn. is based. The Act makes an invidious distinction between assocns., with objects falling within the purview of Sub-clause (a) of Clause (2) of Section 15 & Clause (b) for which there is no sort of justification. Had the Chief Justice of the S. C. come to the conclusion that the service of the grounds was not obligatory, perhaps his opinion would have been different regarding the reasonableness of the Act as did the dissenting judges. Of course, the difference between the learned Judges was regarding the interpretation of the word "may" in Section 4 (6), Punjab Public Safety Act. Where a Municipal Board granted a monopoly in trade to A under a by-law which conferred the power to issue a licence which resulted in preventing B who carried on similar trade previously from carrying on his business, the S. C. held that the restriction imposed by the by-law was unreasonable under Article 19(b) of the Constitution notwithstanding a remedy by way of an appeal to the local Govt. was provided : Rashid Ahmad v. Municipal Board, Kairana, .
28. I have, therefore, no hesitation in holding that the restrictions imposed by the new Act are unreasonable.
29. The argument based on Clauses (a) & (f) of Sub-section (1) of Article 19 may be easily disposed of. The Act is not a direct legislation relating to the freedom recognised under Clause (a) or Clause (f). These two rights are not deprived as a result of direct legislation relating to the rights of freedom to form assoens. or unions under Clause (c). It is, therefore, unnecessary to consider whether the restrictions under the new Act offend the provisions in Clauses (2) & (5) of Article 19. If the impugned provisions of the Act are otherwise valid, they cannot be treated as offending these provisions.
30. It may be pointed out that in view of the decision of the S. C. in what is known as the Cross Roads Case, Romesh Thapper v. State of Madras, which had to consider whether provision in
Section 9 (1) (a), Madras Maintenance of Public Order Act, was outside the scope of the authorised restriction of Clause (a) of Article 19, the expression "security of the State" in Sub-clause (2) of Article 19 is not identical with public order, Although a restriction in an Act may have been imposed in the interests of public order such restrictions would not be restrictions on freedom of speech & expression directed solely against the undermining of the security of the State or the overthrow of it & would not be covered by Clause (2) of Article 19. Therefore such restrictions will be unconstitutional & void.
31. It was next contended that the provisions of the impugned Act denied to persons equality before the law & also contravene the provisions in Article 14 regarding "equal protection of the law." Article 14 under the caption "Bight to Equality" states :
"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
This Article, in my opinion, relates to two different concepts. One is "equality before the law" & the second "equal protection of the laws" Two obligations are cast upon the State, that is, to secure to a person equality before the law & also to give equal protection of the laws to the person. The expression "equality before the law" is not used in the American Constitution, though "equal protection of the laws" occurs in the 14th Amendment. The expression "due process of law" is used in a more elastic sense as to include equality before the law & also equal protection of the laws. Though in the 5th Amendment of the American Constitution, equal protection of the laws is not specifically mentioned it is specifically stated, however, in the 14th amendment as it was thought that there should be an impliation in that direction so far as the State legislation was concerned. Prof. Dicey in his Law of the Constitution treats "equality before the law" as one of the three meanings of the expression "rule of law" which formed the fundamental principle of the English Constitution. He defines it at p. 202. Edn. 9 as meaning :
"The equal subjection of all classes to the ordinary law of the land administered by the ordinary law Cts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to the 'administrative law' (droit administratif) or the 'administrative tribunals' (tribuna uxadministratifs) of France. The notion which lies at the bottom of the 'administrative law' known to foreign countries is, that affairs or disputes in which the Govt. or its servants are concerned are beyond the sphere of the civil Cts. & must be dealt with by special & more or less official bodies. This idea is utterly unknown to the law of England & indeed is fundamentally inconsistent with our traditions & customs."
In other words, this expression implies in my opinion that the Legislature should not make a distinction between the rich & the poor, official & non-officials, & make discrimination on any other basis between one subject & the other. All must be treated as equal before the law. The argument on this part of the case by Mr. Nambiar was that accused in criminal cases must be treated alike & no distinction should be made between persons accused of one kind of offence & another. The acceptance of this argument would lead in my opinion to very disastrous results. The Criminal P. C itself draws a distinction between the modes of trial of various offences & the Penal Code imposes different penalties varying with the nature of the offences. If the view contended for were to be accepted all these will be inequalities & must be declared void. His contention is that accused under Section 17, Criminal Law Amendment Act, are treated differently as they are not allowed to challenge & show that the declaration by notfn. is not well founded; as this right is denied, it is said, that there is a violation of the right. What is contemplated by the clause in my opinion is not a discrimination between persons accused of offences but a discrimination between one set of persons & others, having regard to their status & other considerations.
32. The next point for consideration is whether under the impugned provision equal protection is denied. The last clause of the 14th Amendment of the American Constitution in which a similar limitation occurs states :
"Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws."
There is no similar express prohibition in the 5th Amendment which relates to the Federal Legislation. The Fourteenth Amendment was originally introduced to protect the rights of the Negroes but was subsequently extended even to Chinamen in the well-known Laundry Case: Yick Wo. v. Hopkins, 118 U.S. 356. That the requirement of "due process of law" to a considerable extent includes the guarantee of equal protection of laws is established in Smyth v. Ames, 169 U.S. 466. The distinction, however, between the two limitations was noticed by Taft C. J. in Truax v. Coorrigan, 257 U. S, 312. He there pointed out :
"It may be that they (the two prohibitions) overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not conterminous .... The due process clause ..... of course tends to secure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty & property, which the Congress or the Legislature may not withhold. Our whole system of law is predicated on the general fundamental principle of equality of application of the law ..... But the framers & adopters of this (fourteenth) amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not he insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty. The guaranty was aimed at undue favour & individual or class privilege, on the one hand & at hostile discrimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process."
As observed in Hayes v. Missouri, 120 U. S. 68
"the clause does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances & conditions both in the privileges conferred & in the liabilities imposed."
32a. The scope & intent of this provision of equal protection of the laws was defined by Field J. in Barbier v. Connelly, 113 U. S. 27, in a passage which has since become classic. He observed :
"The fourteenth Amendment in declaring that no State 'shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws', undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection & security should be given to all under like circumstances in the enjoyment of their personal & civil rights; that all persons should be equally entitled to pursue their happiness & acquire & enjoy property; that they should have like access to the Cts. of the country for the protection of their persons & property, the prevention & redress of wrongs, & the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling & condition, & that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences. But neither the Amendment, broad & comprehensive as it is, nor any other amendment was designed to interfere with the power of the State, sometimes termed its "police power", to prescribe regulations to promote the health, peace, morals, education & good order of the people, & to legislate so as to increase the industries of the State, develop its resources & add to its wealth & prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes & irrigating arid plains. Special burdens are often necessary for general benefits, for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, & many other objects. Regulations for these purposes may press with more or less weight upon, one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote with as little individual inconvenience as possible, the general good. Though in many respects necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons & property under the same circumstances & conditions. Class legislation, discriminating against some & favouring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. In the execution of admitted powers unnecessary proceedings are often required, which are cumbersome, dilatory & expensive, yet, if no discrimination against any one be made & no substantial right be impaired by them, they are not obnoxious to any constitutional objection. The inconveniences arising in the administration of the laws from this cause are matters entirely for the consideration of the State; they can be remedied only by the State."
This passage brings out to what extent discrimination is permissible. While class legislation is prohibited a reasonable classification bylaw has always been considered as not amounting to a denial of equal protection. An illustration of class legislation is the Laundry case, 113 U. S. 356. In that case the validity of an ordinance of the City of San Francisco which required persons intending to establish laundries in frame houses to obtain the previous consent of certain municipal officials was considered. It conferred a discretion to the officials in the nature of a naked & arbitrary power to give or withhold the consent not only as to the places but also as to persons. On the face of it the legislation impugned was not discriminatory. The evidence in the case established that it was in fact directed exclusively against a particular class of persons, namely the Chinese. The Ct. held :
"Though the law be fair on its face, & impartial in appearance, yet, if it is applied & administered by public authority with an evil eye & unequal hand so as practically to make unjust & illegal discriminations between persons in similar circumstances material to their rights, the denial of equal justice is still within the prohibition of the Constitution."
The quotation from the judgment of Field J. brings out also the distinction between classification & class legislation. As pointed out by Weaver on the Constitutional Law at p. 397:
"Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons, arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted & between whom & the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one & the exclusion of the other from such privilege."
The State has the undoubted authority notwithstanding the formula of the "equal protection of the laws" the power to classify the subjects of legislation based on particular objects or to classify persons to accomplish a particular result. The classification, however, as pointed out by Weaver,
"must not be arbitrary, artificial or evasive & there must be a reasonable, natural & substantial distinction in the nature of the class or classes upon which the law operates. Unless the classification is clearly unreasonable & arbitrary Ct. would not interfere with the legislation."
This subject is dealt with by Willis on the Constitutional Law at p.
579. Under this clause, the right of all persons to have a like access to the Courts of the country for the protection of their persons & property is undoubtedly recognised. No impediment should be imposed in respect of such right except as applied to the exercise of the same rights by others constituted similarly. The effect of the impugned provisions of the amended Act is undoubtedly to create a distinction between assocns. within the purview of Clause (a) of Sub-clause (2) of Section 15 & Clause (b). For no conceivable reason the right of access to the persons aggrieved to the Cts. of the country for the protection of their rights in the ordinary manner & under ordinary procedure is denied. The Advisory Board can well be described as merely a means of salving the conscience of the State, to adopt the language of Alien on Law & Orders at p. 79.
33. An examination of the provisions of the Amended Act undoubtedly leads to the conclusion that the remedy provided for is ineffective to give a right of equal opportunity to the person affected. It is not based upon any reasonable classification & there is no reason or justification for making invidious distinction between one kind of unlawful assocn. & another. All members of an unlawful assocn. are not placed in the same footing; & there is no justification for the Legislature to have selected persons forming an assocn. within the meaning of Sub-clause (b) of Section 15 (2) for a special kind of treatment, unlike other persons who are accused of offences either under the Penal Code or under special laws. Nor is there any reason for not following the ordinary procedure for trial of offences laid down in the Criminal P. C. The legislation is not directly aimed at preventive detention in which case the Constitution recognised an abridgment of the right. I have, therefore, no hesitation in holding that the impugned provision of the Amended Act is wholly inconsistent with Article 14.
34. It must, therefore, be held that Section 16 of the unamended Act, & the following Sections 17 & 17A to F & the provisions of the Amended Act must be held void. Under Article 13 of the Constitution, it is void only to the extent to which it is inconsistent with the provisions of Part III.
35. There remains one other contention raised on behalf of the petnr. Under Section 6 of the Amended Act the notfns. already issued under the repealed Section 16 & not cancelled before the commencement of the Amended Act are treated as having been issued under the now Section 15 (2) (b) of the Amended Act, & their operation commences from the date of the commencement of the Amended Act. The argument is that as the notfn. in question was issued under the unamended Section 16 which is no longer in existence & which is void, the Legislature had no power to validate notfns. issued under a void Act. I am, however, convinced on a reading of the clear provisions of the section that the object of the section is not to validate the notfns. but merely to treat the paper on which the notfn. is contained as a notfn. issued under Section 15 (2) (b) & its operation commences not from its date but from the date of the commencement of the Act. Instead of issuing a large number of notfns. once more & presumably in order to save time, the Legislature intended to treat the notfns. already issued as notfns. issued under the amended Act. The power is given to the State Govt. under the first proviso to Section 6 to issue supplementary notfn. specifying the ground & the reasons & the particulars referred to in Section 16 (1) (a) of the Amended Act & also to give a reasonable period for making representations. Thereafter the procedure prescribed in the subsequent provisions in Section 16 has to be followed. I do not, therefore, think that there is any force in the argument of the learned counsel for the petnr.
36. It was also urged that Section 12, Madras Maintenance of Public Order Act, under which a search warrant was issued also offends the provisions of Article 14 & Article 19 of the Constitution. I do not see any force in this contention & we have no power under this writ to direct a return of the articles seized by the police in pursuance of the search warrant.
37. Mr. N. S. Mani, who followed Mr. Nambiar, raised a further contention that the Act offends the guarantee of equal protection of laws under Article 14 as Section 17 (3), Criminal Law Amendment Act, makes the offence under Section 17 (1) non-bailable notwithstanding anything contained in the Criminal Procedure Code. Section 496, Cr. P. C., provides for the grant of bail when a person is accused of a bailable offence; & Section 497, when a person is accused of any non-bailable offence. Section 497 empowers the Ct. if certain conditions exist to release a person on bail even when he is accused of a non-bailable offence. The effect of Clause (3) of Section 17, Criminal Law Amendment Act, it was argued is to take away the right of obtaining bail even in suitable cases. It has been held by Panchapakesa Aiyar J. in In re Ramalingayya, that notwithstanding the provisions in Clause (3) of Section 17, Criminal Law Amendment Act, the Ct. has power to grant bail in suitable cases & in fact, in that case the learned Judge granted bail. In my opinion, the view taken by the learned Judge is correct &, therefore, there is no violation of the guarantee of equal protection of laws on this ground.
38. It follows, therefore, that the rule nisi must be made absolute & the order of the State of Madras in G. O. No. 1517 dated 10-3-1950 must be quashed & that the order of 31-3-1950 in G. O. No. 1733 must also be quashed.
Viswanatha Sastri J.
39. The facts & the relevant statutory provisions have been stated in the judgment of my learned brother Satyanarayana Rao J. which I have had the advantage of reading. Were it not for the importance of the issues involved, I should have been content to express my formal concurrence in the opinion just now read. The case confronts us with the duty, at once difficult & delicate, laid upon us by the Const. Ind. of adjudicating upon the validity of State legislation when it is challenged as transgressing the limits of legislative power granted to the State by the Constitution. A written constitution, like ours, is fundamental law which limits by express rules the powers of the executive & the legislature. Judicial review, itself a limitation on the supremacy of the legislature, is a fundamental part of our constitutional scheme & it is the duty of the Ct. to declare void an enactment which is contrary to the Constitution. The main question before us is whether the Criminal Law Amendment Act (XIV  of 1908) in its original form or as amended by Madras Act XI  of 1950, squares with the constitutional mandate.
40. I shall deal briefly with one or two preliminary points argued before us. In this judgment I shall refer to the Criminal Law Amendment Act (XIV  of 1908) as "the Act" & to the articles of the Constitution of India as "articles"
41. The Act was amended by Madras Act XI  of 1950 which came into force on 16-8-1950. Section 16 of the Act as it originally stood expressly empowered the Provincial Govt. by notfn. in the Official Gazette to declare any assocn. which, in its opinion, interfered or had for its object interference with the administration of the law or the maintenance of public order or which constituted a danger to the public peace, an "unlawful assocn." Section 15 (2) (b) of the Act defined an "unlawful assocn." as an assocn. declared to be unlawful by the Provincial Govt. Section 3 of the Amending Act XI  of 1950 deleted Section 16 & Section 2 substituted for Section 15 (2) (b) of the Act a clause that any assocn. declared by the State Govt. by notfn. in the official Gazette to be unlawful on the ground that it constituted a danger to the public peace or interfered with or had for its object interference with the maintenance of public order or the administration of the law, was an ''unlawful assocn." The argument of Mr. Nambiar for the appct. is that the power of the Govt. to declare an assocn. unlawful on the grounds above specified came to an end with the repeal of Section 16 which in terms conferred that power. The argument of the learned Advocate-General for the respondent is that the power has been conferred impliedly by the new definition of an "unlawful aasocn." in Section 15 (2) (b) as an assocn. declared by the State Govt. to be such by a notfn, and that the unskilfulness of the draftsman should not be pressed into service for nullifying the Act. In numerous legislative enactments, both Central & Local, this familiar drafting device of investing, under the guise of a definition clause, the executive Govt. or some other body, with implied authority to declare or notify so as to bring the person or thing notified within the purview of the enactments, has been adopted. Many such instances were cited to us by the learned Advocate-General. The power to notify is conferred, not expressly but by necessary intendment in such cases : see Maxwell on the Interpretation of Statutes (Edn. 9), p. 361 ; Cullen v. Trimble, (1872) 7 Q. B. 416 : (41 L. J. M. C. 132). It is a somewhat unusual procedure for an amending Act to do away with an express power already existing & conceal it in the interstices of a definition. If the draftsman of Madras Act XI  of 1950 had been asked why he had deleted the express power conferred by Section 16 of the Act & resorted to this indirect method, he would perhaps have answered, that he was improving the graces of style & following time honoured legislative practice. The construction contended for by the appct. would nullify the Act. The cardinal principle of statutory construction is, if possible, to save & not to destroy an enactment. Even penal enactments have to be construed in a rational way with due regard to the aim & intention of the Legislature. A power may be conferred expressly as well as by necessary implication. The only commonsense conclusion is to hold that the Legislature has not nullified the Act which it avowedly sought to improve by means of the amendment.
42. It was boldly argued by the Advocate-General that the State had the prerogative right to declare assocns. unlawful & imprison its members in the interests of public order. Such an argument was never heard in England after the Magna Carta & assertions of such prerogatives cost an English King his head & another his throne. Such a contention is unthinkable under our Constitution.
43. It was next argued that in a matter so vitally affecting the freedom & civil rights of citizens, the Legislature could not delegate to the State Govt. the power of declaring an assocn. unlawful, which declaration involves serious penal consequences & deprivation of property. If the Act, before or after its amendment, was within the competence of the State Legislature--I assume for the purpose of this part of the case that it was--the delegation is not bad. In one sense it may be considered to be a delegation because another body specified by the Legislature is authorised to do something which it might have done itself. It is now too late in the day to contend that such a delegation is objectionable. It is impracticable for the Legislature to pass a separate enactment with reference to each assocn. declaring it to be unlawful. The power has necessarily to be given to the executive Govt. to determine from time to time & with reference to the activities of each particular assocn. whether or not it should be dealt with as an unlawful assocn. Modern Govt. would be almost impossible without some amount of delegation of authority to executive bodies. The point is now well established by authority. Empress v. Burah, 4 Cal. 172 : (5 I. A. 178 P. C.), Emperor v. Benorilal Sarma, (1945) 1 M.L.J. 76 : (A.I.R. (32) 1945 P.C. 48 : 46 Cr. L J. 589) per the Chief Justice of India in A. K. Gopalan v. State of Madras, and in Dr. Khare v. The State of Delhi, . The orders now under
consideration are not invalidated solely by reason of the fact that they were made by Govt. in the exercise of a delegated power. But this point will have a bearing on the interpretation of Article 19(4) of the Constitution.
44. The next contention of the appct. was that the Act, even after its amendment, & a fortiori before its amendment, was repugnant to Article 14 & 19(1)(a)(c) & (f) of the Constitution and was, therefore, void under Article 13. The learned Advocate-General did not contend that the Act, before its amendment, was not inconsistent with the Constitution, though he said that he should not be understood to have made any admission on the point. It is common ground, however, that if the Act as amended were held to be repugnant to the Constitution, the unamended Act was clearly void. It is also admitted that before the enactment of the Constitution, the Act was quite valid. The Act has been on the statute book since 1908 & has undergone amendments from time to time, Madras Act XI  of 1950 being the latest.
45. The question for decision is whether, in the frame in which the Act is cast, it can receive effect as a lawful exercise of legislative authority. In such enquiry, it has been held by the Judicial Committee that Cts. must ascertain "the true nature & character" of the enactment or its "pith & substance" & consider the provisions of the Constitution by which affirmatively legislative powers have been created & negatively such powers have been restricted. Entry No. 1 in the State List II of Schedule VII to the Constitution refers to "public order." Entry No. 1 in the Concurrent List refers to "criminal law" & Entry No. 2 to "criminal procedure.' Under Article 246 of the Constitution, the State Legislature, in respect of "public order," & the Parliament & the State Legislature in respect of "criminal law" & "criminal procedure," have power to legislate. Under Article 245, however, this legislative power must be exercised subject to the provisions of the Constitution. Article 13(1) & (2) provide that all laws inconsistent with or in derogation of the fundamental rights of citizens declared & guaranteed in Part III of the Constitution shall, to the extent of such inconsistency or contravention be void. The legislature has power to create or define crimes & prescribe the procedure for trial & the imposition of penalties in respect of such offences, without transgressing the limits of Part III of the Constitution. When a power is conferred to legislate on a particular topic it is important in determining the scope of the power to regard what is ordinarily treated in legislative practice & particularly the legislative practice in India as comprised in that subject. The impugned Act deals with "public order" which has always been regarded in Indian legislation as comprising public safety & the orderly administration of law. It also deals with criminal law & procedure. The only question is whether it offends Part III of the Constitution.
46. In this connection many American decisions & text books have been cited to us by learned counsel on both sides. These decisions afford valuable guidance though they have only a persuasive value here. The generality & brevity of the American Constitution provided more starting points for judicial exposition & the Constitution now consists mostly of case-law. The outlook of the S. C. has varied with changes in time & the personnel of the Ct. The dissents of one generation, notably the classic dissents of Justice Holmes, became the law of the next generation of Judges. But always the Constitution was regarded as a superior & paramount law controlling & annulling legislative acts repugnant to it. Very early in the history of the American Republic, the power & duty of the Cfc. to interpret the law enacted by the legislature was assumed to carry with it the power to veto legislation as being unconstitutional. Notwithstanding the separation of powers & the establishment of three separate & independent agencies of Govt. functionally differentiated from one another, the supremacy of the judiciary became the established rule of the American Constitution. By reason of the assumption of this wide power, the S. C. not only adjudicated upon actual disputes but also controlled national policies. It had to move with the current of public opinion of the time. It asserted the federal or national power under Marshall C. J. restored to the States some of their lost power under Taney C. J. vetoed regulatory, social & economic legislation of the States as a violation of the "due process" clause, later upheld it as a proper exercise of the "police power", sterilised the Federal Govt.'s anti-trust & anti-cartel legislation & later gave life to it.
47. With reference to civil rights or liberties the American decisions have been more consistent, though even here, their outlook or mode of approach has not been uniform. The American Constitution was framed by men whose ancestors had left their homes to escape religious & political tyranny & whose tradition had been to regard the State as the enemy of civil liberty. Their primary concern was for safeguarding the life, liberty & property of individual citizens. The extent to which Govt. was viewed as the enemy of liberty would be apparent from the very first section of the Bill of Rights :
"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; of abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, & to petn. the Govt. for a redress of their grievances."
This tendency was revealed in the early decisions of the S. C. also. But times have changed & judicial opinion in America has not remained static. New concepts of civil liberty ensuring the safety of the State & the protection of citizens not against the Govt. but by the Govt. have found expression in recent times. What might have been thought as an essential & inviolable right of the citizen two or three generations ago, is not asserted or maintained as such in America today.
48. I shall have to say something later in the course of this judgment with reference to the growth of the power of judicial review of legislative decisions in America. In approaching the question before us, we have to remember that the Const. Ind. was framed with full knowledge of the working of many Federal & Republican Constitutions in other countries; that it was intended to fashion a Constitution suited to the particular needs & conditions of this country; & that it descends into particulars & details unlike the Constitution of America. Its object, to quote the preamble, was to secure to all citizens "justice, social, economic & political; liberty of thought, expression, belief, faith & worship; equality of status & opportunity" & to promote "fraternity, assuring the dignity of the individual & the unity of the Nation." These high purposes were intended to be fulfilled under the protection & authority of a stable & well ordered democratic State. I humbly venture to think that where the law of the Constitution as expounded by learned American Judges of the S. C. is left in a state of conflict, doubt or uncertainty with varying statements of the law by different Judges, it is open to us to choose & accept that judicial opinion which, subject to the guidance of the S. C., we consider, is in consonance with the principles of our Constitution, & suited also to the needs & conditions of our country. This seeming digression has been necessitated by the course taken by the arguments before us.
49. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws." The impugned Act is said to be a violation of this provision. The first part of Article 14 is of English & Irish origin & the latter part is a verbatim adoption of a phrase found in the 14th amendment of the American Constitution. The argument was presented in diverse forms. Reliance was placed on Dicey's Laws of the Constitution Edn. 9 at pp. 202-203 where one aspect of the doctrine of "the rule of law" which, according to the author, forms a fundamental principle of the English Constitution, was thus stated :
"It means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Cts."
Founding himself on this passage, Mr. Nambiar argues that the impugned Act enacts a highly discriminatory law, empowering the executive Govt. of the day to select groups or assocns. of persons whose policies & activities the Govt. may not approve, & to subject them to severe penalties in the shape of imprisonment & loss of property, without a trial in the ordinary Cts. according to the ordinary law of criminal procedure. Whatever may be the validity of this contention otherwise, it is in my opinion, a misapplication of Dicey's doctrine. What the author meant in the passage cited was that if a public officer committed a tort or a crime in England, he would be liable for it in the ordinary civil & criminal Cts. of the land, unlike in France where administrative tribunals determined the dispute. This thesis was elaborated in a whole chapter & conclusions favourable to the English legal system were drawn by Dicey. The passage referring to "equality before the law" had no reference & could not have had any reference, in view of the absolute legislative supremacy of parliament, to any legislative enactment or to that part of the law which gives powers to & imposes duties upon public authorities. This is made clear by a passage in Dicey following the one already cited :
"The 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing corresponding to the administrative law (droit administratif) or the administrative tribunals (tribunaux administratifs) of France."
The argument went further. It was said that Sections 120-A & 120-B & Sections 141 to 151, Penal Code, dealt with assocns. of people whose object & purpose were as heinous, if not more, & that in such cases, the accused had a right to be tried in accordance with the ordinary laws of criminal procedure with a right to engage counsel, cross-examine witnesses, lead rebutting evidence & address arguments in open Ct. These rights were denied to persons brought under the impugned Act which enabled the Govt. to make an assocn. unlawful by its mere declaration. There was here a denial of equality before the law & of equal protection of the laws. So ran the argument. Reliance was placed on the following decisions : Barbier v. Connelly, (1885) 113 U. S. 27, Yick Wo v. Hopkins, (1886) 118 U.S. 356 & Smyth v. Ames, (1898) 169 U. S. 466 for the proposition that "equal protection of the laws" necessarily involved & implied (1) exclusion of arbitrariness; (2) access to Cts. & (3) freedom from deprivation of personal liberty or property except as the result of a conviction by the ordinary Cts. of the land.
50. The impugned Act is aimed at associations whose activities constitute, in the opinion of the Govt., a danger to the public peace or an interference with the maintenance of public order or to the administration of the law. In this respect it does not differentiate between associations according to their political, economic or social doctrines & objectives. It lays down only one test for all groups or associations before they are declared illegal. The grounds on which alone the Govt. is empowered to declare associations unlawful are laid down by the Act. They are grounds which might apply to all associations, political, religious, economic or academic, if their real activities bring them within the mischief of the Act. That united & joint action involves greater danger to public peace & public order than the utterances & acts of individuals must be conceded. The exercise of the statutory power of the Govt. is hedged in with conditions & limitations which apply in the cases of all associations. The State has not, in dealing with its citizens by legislation, arbitrarily singled out a class of citizens & subjected that class to oppression, discrimination or disability. The impugned Act strikes down all groups or associations having the object or activity prohibited by the Act & menacing the public peace. The possibility of an abuse of governmental power may be relevant to another portion of the argument which I shall consider later, but ex facie the impugned Act does not discriminate between one association & another but applies a common test to all associations. "Equality before the law'' is not, in my opinion, violated by the impugned Act.
51. The arguments based on the expression "equal protection of the laws" like the American decisions interpreting it mix up the two concepts of "equal protection of the laws" & "due process of law" both of which find a place in one sentence in Section 1 of the 14th amendment :
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of laws."
Our Constitution has carefully avoided the use of the expression "due process of law" which has been a terror to legislative bodies & a paradise for Cts. & lawyers in America. The guarantees of "due process of law" & "equal protection of the laws" are secured to all persons, whether American citizens or not. The two guarantees differ in theory, "Equal protection of the laws" is a guarantee against discriminatory legislation while "due process of law" is a guarantee that all legislation shall conform to certain well-established standards or principles. But these rights are in most cases treated together in considering the constitutional validity of legislative enactments & only occasionally differentiated. "In not a few cases the Cts. have referred to both prohibitions leaving it uncertain which prohibition was deemed the most pertinent & potent in the premises"--Willoughby's Constitution Law, Vol. III, p. 1929. The possible distinction is indicated in Truax v. Corrigan, 257 U. S. 312 where Taft C. J. said :
"It may be that they (the two prohibitions) overlap that a violation of one may involve at times the violation of the other, but the spheres of protection they offer are not conterminous. . . . The due process clause ... of course tends to secure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty & property, which the Congress or the Legislature may not withhold. Our whole system of law is predicated on the general fundamental principle of equality of application of the law .... The guarantee was aimed at undue favour & individual or class privilege, on the one hand & at hostile discrimination or the oppression of inequality on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process."
In Barbier v. Connolly, 113 U. S. 27, relied upon by Mr. Nambiar the S. C expanded the meaning of "equal protection of laws" by saying that
"not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persona should be equally entitled to pursue their happiness & acquire & enjoy property; that they should have like access to the Cts. of the country for the protection of their persons & property, the prevention & redress of wrongs & the enforcement of contracts; that no impediment should be interposed to the pursuits by any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling & condition, & that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences."
It is not right, in my opinion, to treat these words as if they were part of the Constitution itself or as a precise definition. Crimes against society are treated differently from crimes against individuals, & crimes against property from crimes against person. The law of criminal procedure provides different modes of trial for different offences. Sentences varying in their severity are imposed for the same offence according to the circumstances of the crime & the condition of the accused. Relations between debtor & creditor, employer & workman, & landholder & tenant, are not regulated by the laissez faire theory or by the principle of freedom of contracts & are even taken out of the jurisdiction of Cts. The bulk of modern social & economic legislation applies not to all citizens generally but only to special classes considered by the public opinion of the day as deserving of special protection. The prohibition against the denial of equal protection of the laws does not, therefore, require that the law should have an equality of operation on persons as such, but no persons according to their relation. Distinguishing, selecting & classifying objects of legislation within a wide range of discretion & according to the needs & circumstances of society from time to time, are both necessary & permissible, provided the discretion is based on some reasonable or intelligible grounds. The power of the State to prescribe regulations for promoting the health, morals. & education, of the people, the economic & industrial development of the country, & for preserving peace & order, called the "police power" in America, involves some kind of selection, classification & special treatment. Reasonable classifications made & restrictions imposed by law do not amount to a denial of equal protection. Though the classification must have relation to the purpose of the Legislature, logical appropriateness of the inclusion or exclusion of objects or persons is not required & the Legislature must have great freedom of discretion in this respect. A classification having some reasonable basis does not offend the rule of "equal protection of the laws" merely because it is not made with mathematical, logical or scientific accuracy or because practice & actual working it results in some inequality. Gulf C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150 at p. 155, Health Mileigan Manufacturing Co. v. Worst, 207 U. S. 338. All that can be said is that the classification must not be an arbitrary, capricious or colourable selection which no reasonable man would make but must rest upon some difference which bears a reasonable & just relation to the act in respect of which the classification is made. The classification, as stated in one of the books quoted to us (Weaver on Constitutional law p. 397) "must not be arbitrary, artificial or evasive." There must be a reasonable distinction in the nature of the class or classes on which the law operates. He who assails the legitimacy of the classification must establish beyond doubt that it does not rest on any reasonable basis, the presumption being that it does. Gulf C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150 at p. 155, Coonolly v. Union Sewer Pipe Co., (1902) 184 U. S. 540, Lindlsye v. National Carbonic Gas Co., (1911) 220 U. S. 61 at p. 78. The 14th Amendment is not a "pedagogic requirement of the impracticable" said Holmes J. Legislation may be & in practice is often limited as to objects or territory, the only requisite being that all persons subject to it are treated alike under like circumstances "both in the privileges conferred & the liabilities imposed". Hayes v. Missouri, 120 U S. 68 ; Giles v. Teasley, (1904) 193 U. S. 146. The degrees of evil, detriment of injury to the State or to the citizens arising from unsocial conduct might justify a classification. The classification of crimes proceeds on this basis & the only requisite is that the like should be treated alike. It has been pointed out in America that in considering whether a State has violated the rule as to equal protection of laws, paraphrased as 'the protection of equal laws", the Ct. "is free to go behind the face of the law & inquire into the fairness of its actual working & enforcement" Yick Wo v. Hopkins, 118 U. S. 356; Reagan v. Farmers Loan & Trust Co., (1894) 154 U. S. 362.
52. To apply these principles to the impugned Act, it deals with a type of association having objects & activities which threaten public peace & the maintenance of public safety or Order & it was the object of the Legislature to penalise all such associations in public interests. There is no discrimination between persons or groups of persons according to their political, social or religious affiliations. The classification cannot be said to be arbitrary, irrational or unreasonable. Within reasonable limits it is open to the Legislature to determine by what process & in what forum penalties may be imposed for infraction of the penal law. Neither a change of the ordinary venue nor the constitution of a special tribunal for the trial of a particular type of offences, irrespective of the persons or the associations concerned, can, by itself, be said to be a violation of the rule of "equal protection of the laws". The procedure enacted by law must, however, give reasonable notice & a fair opportunity to be heard before a decision is given or a penalty is imposed. Cincinanati Street Ry. Co. v. Charles B. Snell, (1904) 193 U. S. 30. This last qualification lies in the penumbra of the "due process" rule & will be dealt with latter when I discuss the reasonableness" of the impugned Act, Except for this, reservation, the impugned Act does not offend the principle of "equal protection of laws".
53. The further question is whether the impugned Act violates Article 19 of the Constitution. The fundamental rights of citizens declared in Article 19 of our Constitution are referred to in the 14th Amendment as "the right to life, liberty & property". Our Constitution expands the concept & also limits its scope. The doctrine of "natural rights" extolled in Thomas Jefferson's Declaration of American Independence & expounded by John Locke, permeated the minds of the framers of the American Constitution & influenced its judicial exposition in the early days. The conception of natural rights, an universal sense of equality, & the possession by individual citizens of certain inherent & inalienable rights & the need for their protection against governmental encroachment found expression in the "due process" clause of the 5th & 14th Amendments & the "equal protection of the laws" in the 14th Amendment. The total number of these rights, their substance & content & the limitations on their exercise were not precisely formulated, but they were all compendiously described as "civil rights". They were safeguarded & guaranteed to the citizen by the American Bill of Bights & the 14th Amendment & by the Judicial interpretation of the clauses relating to the "due process" & "equal protection of the laws." In our Constitution these rights & the limitations on their exercise are defined in chap. III. We are here cencerned with Article 19 whose object & scope were thus explained by the learned Chief Justice of the S. C in A. K. Gopalan v. State of Madras, :
"It is the first Article under the caption "rights to Freedom". It gives the rights mentioned in 19 (1) (a) to (g) to all citizens of India. These rights read by themselves & apart from The controls found in Clauses (2) to (6) of the same Article, specify the different general rights which a free citizen in a democratic country ordinarily has. Having specified those rights, each of them is considered separately from the point of view of a similar right in the o her citizens, & also after taking into consideration the principle that individual liberty must give way, to the extent it is necessary when the good or safety or the people generally is concerned ...... The only concept appears to be that the specified rights of free citizen are thus controlled by what the framers of the Constitution thought were necessary restrictions in the interest of the rest of the citizens."
The Constitution, however, insists that the Legislature has no powers to abrogate the rights defined & declared in Article 19(1) but gives them the power in Article 19(3) to (6) to impose "reasonable restrictions" on the exercise of those rights.
54. The following questions immediately present themselves & call for an answer. Whose "reasonableness" is to prevail in the matter of imposing: restrictions on the exercise of fundamental rights, whether of the Legislature or of the Cts. ? What are the standards by which reasonableness has to be measured? If the Ct. is to be the Judge of reasonableness, are there any, & if so, what limits to the power of judicial review ? To some extent they were answered by Das J. of the S. C. in A. K. Gopalan v. State of Madras, :
"Whether any law has in fact transgressed these limitations is to be ascertained by the Ct. & if, in its view, the restrictions imposed by the law are greater than what is permitted by Clauses (2) to (6) of Article 19, whichever is applicable, the Ct. will declare the same to be unconstitutional &, therefore, void under Article 18. Here again there is scope for the application of the "intellectual yardstick" of the Ct. If, however, the Ct. finds, on scrutiny, that the law has not overstepped the constitutional limitations, the Ct. will have to uphold the law, whether in likes or not."
55. Mr. Nambiar boldly argues that the power of this Ct. to invalidate legislation contravening Article 19 was of greater amplitude than that possessed by the S. C. of America & that we were at liberty to examine any legislative act on its own merits & upset it if, in our opinion, it imposed unreasonable restrictions on the exercise of fundamental rights. One would wish one had to write on a clean state & the books held no authority on the subject. Not only are there decisions, but a mass of commentary on what the cases really come to. Reconciliation of the decisions or dicta is beyond my capacity & I must confess I have only a partial knowledge of American case-law. Before I embark on a consideration of American precedents on this topic, I have to make a preliminary observation.
56. The American Constitution was based on the theory of division of powers & expressly vested the judicial power of the State in the S. C. as a separate & distinct organ of Govt. A provision vesting the judicial power of the State in Cts. is not found in our Constitution; but that does not, in my opinion, affect the power of the Cts. from the highest to the lowest to declare legislation unconstitutional if it is hit at by Article 13 of the Constitution. The prerogative writs, however, can be issued only by the H. Cts. & the S. C. of India This feature of the American Constitution enabled the Judges of the S. C. to test the propriety of impugned legislation by their own notions of what was fair & reasonable in the circumstances. Legislative decisions were thus brought under the control of the S. C. & subjected to judicial correction. I shall show presently that judicial opinion has not been uniform as to the limits of judicial review in America. Under the "due process" clause of the 14th Amendment, the S. C. assumed power to invalidate all legislation which appeared unreasonable to the majority of the Judges for the time being. Under our Constitution, in respect of matters not falling within chap. III, the appropriate Legislatures have plenary power to legislate; and in respect of rights declared & guaranteed by chap. III their power is restricted, as for instance, by Clauses (2) to (6) of Article 19. Our Constitution too has recognised that it is made for people whose opinions might differ fundamentally that there are occasions in which the temptations may be severe to abridge the fund-mental rights of citizens & that such an abridgment might be attempted by a party having a temporary majority in the Legislatures. Such an abridgment is often made in a concealed form, less open to scrutiny, & much more convenient, by giving power to the Govt. for declaring by notfn. that a particular thing is authorised or prohibited. The Constitution has therefore provided for judicial review of the reasonableness of the restrictions imposed by legislation on the exercise of the citizens' fundamental rights. This Ct. is expressly empowered by Article 226 of the Constitution to protect those fundamental rights by appropriate legal processes against illegal or unauthorised encroachment by the Legislature. This power is not permissive but its exercise is obligatory on this Ct. Compare Julius v. Lord Bishop of Oxford, (1880) 5 A. C. 214 : (49 L.J. Q. B. 577). This Ct. has therefore a duty to exercise a jealous scrutiny in considering any invasion of the liberty or freedom of citizens by the exercise of governmental power, executive or legislative. I use the words "liberty" & "freedom" in the comprehensive sense in which they are dealt with in chap. III.
57. Freedom of assembly & freedom of association & discussion of matters of public interest are indispensable to the effective use of the processes of popular Govt. These rights are guaranteed to citizens by Article 19(1) read with Article 13 of the Constitution. The liberty that is thus protected is liberty in a community or society organised under the Constitution The guarantees are not absolute & they do not protect unsocial actions subversive of the community itself. These privileges are not "absolutes" bat are subject under Article 19(3) to (6) of the Constitution to reasonable restrictions imposed by the State to ensure the existence of an orderly society. Under Article 19, Clauses (3) to (6) of the Constitution the Ct. has to take the role of a reasonable man & decide what are just & proper restrictions on the exercise of the fundamental rights dealt with in Article 19(1)(b) to (g). The hypothetical reasonable man is personified in the Ct. to which is entrusted the task of deciding whether the restrictions imposed by law are reasonable, after giving due weight to all relevant considerations. An undefined standard of reasonableness may sometimes be difficult to apply but the task is one which Judges have had to perform from time immemorial. Oar Constitution designedly leaves it to the Ct. to pronounce upon the justice & fairness, in the broader sense, of legislation imposing restrictions on the exercise of fundamental rights of citizens enumerated in Article 19(1)(b) to (f). Mr. Nambiar invited us to consider & decide whether there is any factual justification for the impugned Act remaining on the Statute book. He referred to the decisions in Whitney v. California, 274 U. S. 357 & Terminiello v. Chicago, 337 U. S. 1. This opens up the controversy encircling the "due process" clause of the 14th Amendment.
58. Till about the year 1890, judicial review was restricted to controlling the "competency of the Legislature to deal with certain subjects & not the way in which the Legislature dealt with them," Munn v. Illinois (1876) 94 U. S. 113, Chicago Milwaukee & St. Paul Ry. Co. v. State Minnscata, (1890) 134 U. S. 418. The evolutionary growth of the judicial power resulted in the S. C. establishing its right to take cognizance of the reasonableness of impugned legislation & to adjudicate upon its constitutionality. The limit to the power of for that of the Legislature came to be regarded as their own the Judges to substitute their own judgment sense of "self-restraint". The Ct. went on to hold that,
"a legislative declaration or finding is necessarily subject to independent judicial review upon the facts & the law by Cts. of competent jurisdiction to the end that the constitution as the supreme law of the laud may be maintained. . . . . The principle applies whether rights of persons or of property are protected by constitutional limitations," Per Hughes C. J. in St. Joseph Stockyard Co. v. U.S. (1936) 298 U. S. 38.
Thus the "due process" clause became an irresistable weapon of judicial attack on legislative decisions. The expression "due process," a term of elusive import, was not defined by the Constitution. Originally it was understood to mean the modes of procedure known to the English common law especially in connection with the trial of cases, civil & criminal, before Cts. Later on it was construed to mean "reasonable law & procedure", that is to say, reasonable in the view of the Judges of the S. C. As a consequence of this extended meaning given to "due process" as the equivalent of reasonable law, judicial review ceased to have any defined limits. The Ct. assumed power to come to its own independent judgment, whether the end or objective of the Legislature was legitimate & proper & whether the enacted law was a fair & reasonable method of accomplishing that objective. "Unreasonableness" or "unfairness" shed its old technical legal meaning & became an ethical test. The Ct. claimed the right to decide whether the evils assumed or asserted by the Legislature did in fact exist, whether they warranted the remedy prescribed whether the enacted law was calculated to bring about the desired result whether the end itself was constitutional & whether the procedure was fair & just. Even with reference to legislation trenching upon the property rights of citizens & their freedom of contract, the Ct. sat in judgment over the Legislature in the manner of an appellate Ct.
59. But powerful protests against these views were often heard. In his famous dissent in Baldwin v. Missouri, 281 U. S. 586, Holmes J., disapproved of the crusade waged by the S. C. against State legislation. He said ;
"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the 14th Amendment in cutting down what I believe to be the constitutional rights of States. As the decisions now stand. I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Ct. as for any reason, unreasonable. I cannot believe that the Amendment was intended to give up carte blanche to embody our economi or moral beliefs in its prohibitions."
These observations were made with reference to the legislative decisions in the sphere of economic activities. Legislation regulating the hours of labour, controlling the use of property securing fair wages for workmen, & controlling commerce & industry in the interests of public welfare belong to this type. In Missouri Kansas & Texas Ry. Co. v. Clay May, (1904) 194 U. S. 267 Holmes J. had said :
"It must be remembered that Legislatures are the ultimate guardians of the liberty & welfare of the peoples in quite as great a degree as the Ct."
Frankfurter J. referred to this statement as going "to the very essence of our constitutional system & the democratic conception of our society". He added the weight of his own observations :
"The Constitution does not give us greater veto power when dealing with one phase of "liberty" than with another.... In neither situation is our function comparable to that of a Legislature or are we free to act as though we were a super-Legislature. Judicial self-restraint is equally necessary whenever an exercise of political or legislative power is challenged . . . . In no instance is the Ct. the primary protector of the particular liberty that is invoked." West Virginia Board of Education v. Barnette, (1943) 319 U.S. 624.
60. Where personal rights & liberties are concerned a wider coverage of judicial review had been accorded than in the case of the property rights including freedom of contracts. There is a heirarchy of Constitutional values in which rights of personal liberty, freedom of speech, assembly & association are accorded the first place rights of property being accorded a lower position. Different standards have been laid down in American cases for testing the exercise of legislative power in regard to rights of property & civil liberties such as freedom of speech & free assembly. H. P. Hood & Sons v. U. S., 307 U. S. 588, Yakub v. U. S., 321 U. S. 414. The Holmes doctrine of "legislative supremacy & judicial self-limitation" has not been accepted without qualification. Where fundamental rights of free speech & assembly are alleged to have been invaded, it has been recognised that a person charged with infringement of law can join issue on the question whether there did exist "a clear & present danger" to justify the law as enacted & whether the evil apprehended was so substantial as to justify the stringent restrictions imposed by the Legislature. In a dissenting judgment Holmes J. himself said :
"If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought--not free thought for those who agree with us but freedom for the thought that we hate. U. S. v. Schwimmer, 279 U.S. 644 at pp. 654-655."
Again in his famous judgment in Jacob Abrams v. United States, (1919) 250 U. S. 616 at pp. 627-8 he said :
"But when men have realised that time has upset many fighting faiths, they may have come to believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best teat of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out."
When civil liberties came up for consideration, the majority of Judges were of the view that the primacy of these rights required that there should be no presumption of the validity of legislation, which, ex facie appeared to infringe these guarantees, Stone J. speaking for the majority said :
"When confronted with legislation which stifles the freedom of helpless minorities, the S. C. should not hesitate to assume the role of protector, even if in doing so, it supplants the legislative judgment with its own conception of what is appropriate."
Frankfurter J., however, did not accept this dual approach to the "due process" clause & held that in all oases where the police power of the States is questioned, the only issue was "whether Legislatures could, in reason, have enacted such a law". In his view, the principles of judicial review must be consistently applied, & whether it was a question of civil liberties or a question of economic regulation, the rule of the Ct. was limited to enquiring whether there was reasonable justification for the legislative judgment.
61. Mr. Nambiar argued that there was no need or justification for a permanent & peace time legislation of a drastic character like the impugned Act, & on this ground it should be held to be unreasonable. He referred to the "clear & present danger" or the "grave & imminent danger" test adopted in American decisions like Whitney v. California, 274 U. S. 357, Thomas v. Collins, 323 U. S. 516, & West Virginia State Board of Education v. Barnette, 319 U. S. 624 in order to invalidate the impugned Act. The phrase in question was freely used by Holmes J., in assessing the propriety of legislation abridging fundamental rights during a period when the existence or state itself was imperilled. The expression is felicitous & attractive, but it cannot be applied as a touchstone of legislative propriety. It was a working principle that the 'substantive evil must be extremely serious & the degree of imminence extremely high" before freedom of speech, assembly & association could be interfered with by legislation. It is not a legal doctrine or formula which can be applied to all cases. The necessity for legislation is a question of fact depending on the circumstances attending the legislation. I prefer to act on the following principles :
"If any state of facts reasonably can be conceived that would sustain the legislation, the existence of that state of facts at the time the law was enacted must be assumed". Lindlsye v. National Carbonic Gas Co., (1911) 220 U. S. 61 at p. 78; Plessy v. Fer-guson, 163 U. S. 537."
Even in America a distinction has been drawn between issues of fact & issues of law, the former being pre-eminently a matter for legislative decision. Judicial review must, in my opinion, proceed on the footing that the facts assumed or found by the Legislature do exist. The Ct. cannot determine when a public danger is near or clear & when it is remote or naucent. (sic). Nor can the Ct. weigh in nice scales the amount of public danger. I, there, fore approach the impugned Act on the assumption that there was need & perhaps grave need, for such legislation. This Ct. which is supposed to be blind & deaf for many purpose, cannot possibly assess the public need for a particular type of legislation. Nor is it in a position to assume responsibility for the maintenance of public peace & order throughout the State. If a State is bludgeoned by serious threats, it is not for the Ct. be say "Wait. No hurry". Representatives elected by the people to make laws must determine policies which ought to govern people, the Ct.'s function to consider the reasonableness of the restrictions imposed & to interpret the laws I am unable be hold that there is no factual justification for the impugned Act.
62. Even so, we have to consider whether the restrictions on the exercise of fundamental rights imposed by the impugned Act are reasonable. In so doing we have to take into account substantive as well as procedural rights that are alleged to have been infringed for both these matters are open to judicial review under Article 19(3) to (6) of our Constitution; N. B. Khare v. State of New Delhi, . The "reasonableness" has to be judged both from the point of view of the individual & the public standard of reasonableness will vary according as it occurs in a legislative enactment conceived in the interests of the general public or in a bye-law framed by a local or municipal body. It need hardly be said that the Ct. has a wider latitude of construction in the former case than in the latter.
63. First of all, we have to consider whether the end sought to be achieved by the legislation is legitimate & authorised by the constitution. There must be a proper legislative purpose If the Legislature passed a law ostensibly in the interests of public safety but intended & applied for suppression of freedom of assembly & association for citizens belonging to a hostile political group, then the legislation is colourable & will have be be invalidated as being a cloak for illegitimate ends & as a violation of fundamental rights. That is not the case here. The essence of the offence denounced by the impugned Act is the combining with others in an association for the accomplishment of ends injurious to public order & the due administration of law, without which even the guarantees of civil rights will become farcical. It partakes of the nature of criminal conspiracy. The maintenance of public peace & public order has from time immemorial, been one of the primary duties which State has to perform in the interests of the public. Hence, it is that "public order" is placed as the first item in the State List. 2 in Schedule VII of the Constitution. The end, object or purpose of the impugned Act is the preservation of public peace & public order & therefore legitimate.
64. Secondly, we have to consider whether the impugned Act has a reasonable relation to a proper legislative purpose. The fundamental right with which we are primarily concerned in this case is the right to freedom of association dealt with in Article 19(1)(c) & Article 19(4). It is said that the rights recognised in Article 19(1)(a) & (f) are also violated & I shall deal with this contention later on. Govt. by public opinion involves the right to create & organise opinion with a view to influence the conduct of Govt. or to bring about a change in Govt. Freedom to assemble & associate is necessary for the propagation of ideas & for combating social, economic & political evils & injustices. Hence Article 19(1)(c) withdraws the right to freedom of association from the vicissitudes of political controversy places it beyond the reach of "fleeting" legislative majorities & guarantees the right through Cts. But freedom to combine in order to cause injury or danger to other citizens or to disturb the public peace & order is not guaranteed by the Constitution. There is always the danger of free association being used not for creating public opinion or for turning out the Govt. by lawful means, but to coerce & intimidate & by violence those who entertain different views. Hence Article 19(4) subjects this right of free association to restrictions in the interests of public order or morality. But the restrictions must have a reasonable relation to the interests of public order of morality. Fairness of moans must be united with fairness of the end in such a way that from both points of view the Ct. must be able to say that the restriction is reasonable. Nebbia v. New York, 291 U. S. 502 at p. 537.
65. The critical question is whether the particular limitations & restrictions on personal liberty imposed by the impugned Act have a reasonable relation to the maintenance of public order which is the purpose of the Act. James v. Commonwealth of Australia (No. 2), (1936) A. C. 578 at p. 613 : (105 L. J. P. C. 115); Minersville School District v. Gobitis, 310 U. S. 586, Jones v. Opelika, 316 U. S. 584; West Virginia Board of Education v. Burvette, 319 U. S. 624. The true character, object & effect of the legislation can only, as has been said, be ascertained from an examination of the Act in its entirety. The safety or security of the State is not the end or purpose of the legislation. Its purpose is much more restricted, namely, the maintenance of public order inside the State of Madras. See Romesh Thappar v. State of Madras, . It is not made in the
exercise of the "war power" or the "defence power" of the State under Entry No. 1 of the Union List 1, Schedule VII At the same time the grant of a legislative power with respect to public order must carry with it whatever is necessary to give effect to the power itself. It may be that in the interests of public order certain associations whose activities are prejudicial thereto, have to be put out of action for a time or from time to time. The wisdom of the legislative act or the policy which called it forth cannot be canvassed by the Ct. In my opinion, however, the impugned Act has transgressed these permissible limits. The provisions relating to the forfeiture of moveable properties, monies securities & bank credits of a prescribed association have little connection with the maintenance of public order. It is not merely a precautionary detention but a forfeiture to the state not merely of the properties of the association declared unlawful but of other person's properties as well, which, in the opinion of the Govt. are intended to be used for the purposes of the association. Even creditors have no right to proceed against the properties forfeited to the State. It is not so much the declaration by Govt. that an association is unlawful as the direct & immediate consequences that might attend the declaration, that are serious & far reaching, reaching beyond the confines of "public order." Such extreme penalties imposed in order that they may have not only a deterrent but a terrorising effect would make the legislation unreasonable.
66. A declaration by the Govt. upheld by an Advisory Board, might remain operative & effective, for as long a time as the Govt. might think fit. Bodies corporate & incorporate might be put out of existence altogether & divested of their rights & their properties on a declaration by the executive. The declaration may be based only on the opinions or suspicions of the Govt., on the tendencies & presumed opinions of the members of the prescribed association. It is not required to be based on overt acts or plain omissions demonstrable in a Ct. of law. Not only in England bub in Australia too where there is a written constitution, it has recently been held that a state of war justified many inroads on personal freedom & restriction on the use of property of an abnormal & temporary nature, which would not be considered legitimate in time of peace Liversidge v. Sir John Andersen, (1942) A. C. 206 : (110 L. J. K. B. 724), Adelaid Co. of Johovah's Witnesses Incorporated v. Commonwealth, 67 Comm. L. R. 116. The rights of freedom of speech, assembly & association are the rights of individual citizens under Article 19(1) of the Constitution & not of artificial persons such as corporations or associations, though the right to hold property might be a right of artificial persons as well. The law as regards preventive detention effectively, though indirectly restrains the exercise of these rights by the citizen who is detained. The wide legislative powers conferred on Parliament under Article 22 of the Constitution & the power conferred by Entry No. 3 in the Concurrent List (NO. III Schedule VII) with reference to preventive detention in the interests of public order & the security of the State operate on natural persons. The Preventive Detention Act (IV  of 1950) passed by Parliament has been declared to be validly enacted by the S. C. in A. K. Gopalan v. The State of Madras, . It is in this context that the provisions of the impugned Act must be considered. The State Legislature has purported to extend the provisions of the Preventive Detention legislation which applies to individual citizens to associations, & to enlarge the scope of that legislation so as to include forfeiture of property. Having regard to the limited legislative purpose & the limited extent of the legislative power conferred on the State, I find it difficult to uphold the provisions of the impugned Act relating to forfeiture of property as having a reasonable relation to the end in view, viz., the maintenance of public order.
67. Thirdly & lastly, the means adopted by the Legislature to secure its object must not be arbitrary, oppressive or unjust. It is a question of what has been called procedural "due process," a term which requires compliance with certain forms accepted & universally established by the jurisprudence of all civilised States. In America it has been held that a police measure may be unconstitutional because the remedy although effective as a means of protection is unduly harsh, oppressive or tyrannical. Unconstitutional means cannot be adopted to secure a Constitutional end. The substance of justice & fair dealing must be provided before a person is deprived of his freedom by action taken under a restrictive enactment & this requisite is an integral part of the "due process" doctrine of the American Constitution. It is also the core of the principle of "natural justice", a term widely employed in the discussion of this subject. The idea is that the substantial requirements of justice should not be violated; notice of the charge & of the enquiry into it should be given; adequate opportunity to rebut the charge & to be heard in defence should be given; the tribunal must be impartial & disinterested; and any condemnation, conviction or deprivation of personal liberty or property must be imposed only as a result or by the force of the decision of the tribunal. It is not necessary that the tribunal should be one in the heirarchy of the ordinary criminal Cts. A right of appeal from the decision of the tribunal is nob essential. No set form or stereotyped procedure is necessary. It is not desirable to force "natural justice" a term lacking in precision, though not in content, into a procrustean bed.
68. It is in the light of these principles that the validity of the impugned Act (as amended) has to be determined. A question was mooted whether Article 19(1) of the Constitution was at all applicable to the case, inasmuch as the right of free speech & freedom of association is lost only as the result of a conviction under the impungned Act & not directly under it. Reference was made to A. K. Gopalan v. State of Madras, , where the learned Chief Justice of India
pointed out that Article 19 of the Constitution declared the fundamental rights of free citizens only while they were free, & Article 19(2) to (5) come into play only when the deprivation is of the rights of such persons & not of persons convicted of offences & who thereby become incapable of exercising such rights. In my opinion, the right to freedom of association was dealt with directly by the impugned Act & the imposition of restrictions on that right was its direct object & effect. Article 19(1)(c) & Article 19(4) govern the validity of the impugned Act. Indeed the Advocate-General did not contest this point. Equally untenable is the argument that Article 19(1)(c) merely guarantees the right to "form" associations & not the right to continue to remain as members of an association. The guarantee in Article 19(1)(c) will become illusory & farcical if this contention were to be upheld.
69. Mr. Nambiar for the applt. contends that the impugned Act does not "restrict" but destroys associations & the freedom to join such associations & therefore, Article 19(4) of the Constitution cannot save it. It is said that the effect of a declaration by the Govt. under Section 15 (2) (b) of the Act is forthwith to make the notified association unlawful & thereby supress it altogether. This, it is argued, is not restriction or regulation which implies the continued existence of the association with its activities limited or restricted. It has been observed in some American decisions that the power to regulate does not mean the power to destroy but this is not a rule of general application 'Restrictions in the interests of public morality" in Article 19(4) must connote "suppression" & not mere regulation. "Res-triction" in Article 19(5) & (6) must include prohibition of dog-racing, gambling & prevention of unqualified persons from practising as physicians or surgeons. It is not right to put a different interpretation on the word "restriction" in Article 19(4) when applied to public order. It all depends on the subject-matter whether the regulation is prohibition or merely involves a partial restraint. The State may go on from regulation to prohibition according to the nature of the public evil that is sought to be eradicated or suppressed. Even in America the power to regulate intestate commerce or lotteries hag been held to include a power to prohibit. Megler v. Kansas, 123 U. S. 623, Tyson & Bros. v. Banten, 273 U. S 418, Kentucky Whip & Collar Co. v. Illionosis Central Rilroad Co., 299 U. S. 334,
70. The draftsman of the Amending Act has followed the model of Article 22(4) to (7) of the Constitution & the Preventive Detention Act (IV  of 1950) after the validity of the latter had been upheld by the S. C. in A. K. Gopalan v. State of Madras, . It does not
follow that what is expressly enacted by the Constitution itself & what is authorised to be done by Parliament under Article 22(7) is also within the competence of the Legislature of the State of Madras. It is said that provision of a reference to the Advisory Board in the Amending Act saves it from the taint of un-constitutionality. The learned Advocate-General placed strong reliance on the two recent decisions of the S. C. in A. K. Gopalan v. State of Madras, & N. B. Khare v. State of New Delhi,
. The former decision was based on an interpretation of Article 22(3) to (7) of the Constitution relating to preventive detention. The learned Chief Justice of India with whom the majority of the Ct. agreed, pointed out that Article 19, with which alone we are here concerned, had no application to the case of a preventive detention. The Act whose validity was there questioned was enacted by Parliament under the enabling provisions of Article 22(7) of the Constitution itself. That decision has no application to State legislation affecting the fundamental rights of free citizens guaranteed under Article 19.
71. The second case arose out of an order of externment from Delhi District served on Dr. Khare under Section 4, East Punjab Public Safety Act. The learned Chief Justice of India delivering the judgment of the majority held that the Acfc in question did not violate Article 19(1)(d) of the Constitution & was saved by Article 19(5). The learned Advocate-General particularly relied upon the following sentence in that judgment: "Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such apprehension." This argument assumes that there is a grant of plenary power unhampered by any restrictions or limibations. In cases relating, to fixing of rates for services rendered by public utility concerns to citizens under the police power of the State, the S. C. of America acted on the principle that the fixing of rates was a matter of legislative discretion & nofc of judicial review. "We know," the Ct added "this is a power which may be abused; but that is no argument against its existence. For protection against abuses by legislation the people must resort to the polls, not to the Cts." Munn v. Illionis, 94 U. S. 113. But in a later case decided ten years thereafter, Waite C J. said with reference to this passage, "From what has thus been said it is not to be inferred that this power of limitation or regulation is itself without limit." Stone v. Farmers, L & T Co. 116 U. S. 307. The Ct. receded from the position taken in Munn v. Illinois, 94 U. S. 113 & held that the question whether a rate fixed by a body empowered by the Legislature was reasonable was a judicial question. The result of the American decisions is that the "due process" clause protects personal & private rights of citizens from invasion except by a legitimate exercise of the "police power." If, however, the right is not personal to a citizen, but in relation to an industry or enterprise affected wifch a public interest, it becomes subject to a public control as a public utility service & the discretionary authority of the Legislature to regulate rates & fees for services rendered to the public is wide. Indeed the S. C. divided on the question, the majority went to the other extreme & said:
"The question of the reasonableness of a rate or charge for transportation by a railroad company, involving as it does, the element of reasonableness both as regards the company & as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination." Chicago Mil Waukee & St. Paul Ry. Co. v. Minnesota, (1890) 134 U.S. 418.
I humbly venture to think that the learned Chief Justice of India could not have meant that in no case can the possibility of abuse of statutory power be taken into consideration in adjudging the reasonableness of legislative restrictions of fundamental rights. The case before His Lordship was an order of externment for three months in the conditions then prevailing in Delhi district. The impugned Act in the case had a life of one year only. It must, however, be admitted that Dr. Khare's case, is in point because it related to the interpretation of Article 19(1)(d) & Article 19(5) & to some extent supports the contention of the learned Advocate-General. Having given the two decisions of the S. C. my anxious & respectful consideration, I have come to the conclusion that they do not rule the present case. Preventive detention & externmenfc orders, it must be admitted, involve interference with the freedom of a citizen to some extent, but they are not punitive bat merely precautionary. The action is taken on suspicion. No crime is charged. A Ct. of law is not an appropriate tribunal for inquiring whether circumstances of suspicion exist warranting a precautionary step by way of restraint. In any case the Constitution has incorporated ' Preventive Detention" as part of the Chapter on "Fundamental Rights" & made the exercise of fundamental rights expressly subject to Article 22. The same Constitution has given Parliament plenary power of legislation on preventive detention under Article 22(7). It is, therefore, not proper in my opinion, to extend the principle of the two rulings of the S C. to punitive legislation affecting the personal liberty & properties of citizens.
72. In my opinion, the Act exceeds the authority given to the Legislature by our Constitution. The Act is a permanent part of the statute book & not a piece of emergency legislation. It is not a legislation passed in the exercise of the defence power of the State. The legislative power that is invoked is "public" order in Entry I of List II of Schedule VII. Constitutional rights & liberties guaranteed by the Constitution & which are of prime importance to the citizens of a free democracy have been considerably eclipsed. The Act creates & establishes a crime & provides drastic penalties by way of imprisonment, fine & forfeiture of property without a fair trial. It does not provide for proper & reasonable notice to persons penalised. It does not give them fair & reasonable opportunity to be heard before they are condemned. At the trial before a Mag. for the offence of being a member of an unlawful association, the declaration by the Govt. is conclusive. In effect, it places sentence before trial & judgment. I do nob think that the Constitution has made this colossal delegation of power to State Legislatures when they were authorised to legislate with respect of public order. Let mo make good these observations.
73. A declaration by the Govt. published in the official gazette that an association or body of persons is unlawful makes it an unlawful association. This initial declaration is made ex parte by the Govt. on its own information. The selection of the association is left to the discretion of the Govt. The grounds for declaration together with reasons & such particulars as the Govt. may think it fit to give, are published in the Gazette. So soon as the declaration is published, the association becomes an unlawful association & its members are liable to be prosecuted & sentenced to imprisonment & fine under Section 17. The moveable properties, monies, securities & credits of the association as well as effects, not belonging to it are liable to be forfeited by Govt. under Sections 17B & 17E. On a prosecution under Section 17, it will not be open to the members of the association to go behind the declaration & show that it is unjustified, that the grounds do not exist & the reasons are incorrect. Even strangers who take part in the meetings of such association after the declaration are liable to imprisonment & fine. All this might happen even before the persons affected had any opportunity to have their objections to the declaration by the Govt. considered by the Advisory Board. Punishment might automatically follow the declaration though the Govt. might be trusted to await the report of the Advisory Board before launching a prosecution. There is no provision in the Act for service of the notice of the declaration on the Association through its office-bearers or members at its place of business. Such a provision is common in other enactments. The suggestion that the members of the association might be unknown to the Govt. does not carry weight, for it is unreasonable to penalise persons whom you do not even know, for an alleged transgression of the law. A time for making representations against the declaration of the Govt. is fixed in the notfn. but in the absence of a service of the notice on the association or its office-bearers or members, the time might pass by without their being aware of the notfn. at all. I am aware that in some cases, as for example, in the Income-tax Act, statutory provision is made for the publication of a general notfn. so as to fix all citizens with notice. I am also aware that citizens who were in enemy country during war time & who actively assisted the enemy have been condemned as war criminals without personal service of the proceedings but after publication in official gazettes. But this rule of constructive service by publication is the exception rather than the rule. Penneyer v. Nett, (1877) 95 U. S. 714. The persons affected are not entitled to know on what evidence they are being declared to be members of an unlawful association. The Govt. is entitled to withhold communication of the evidence according to its discretion, even though it cannot claim privilege under the Evidence Act. It might be that during a state of war when the very existence of the State is threatened, or under the provisions of the Preventive Detention Act, the Govt. might not be required to disclose confidential information which it considers, it would be against public interest to disclose. But this is an exceptional procedure which does not admit of being made part of the ordinary criminal law & procedure. The representation by the persons affected is presumably required to be in writing for it has to be placed by the Govt. before the Advisory Board. If there is no right to be heard in person on so grave an accusation it has been held to be a denial of due process. Londoner v. Deener, (1908) 210 U. S. 373. The imposing facade of an Advisory Board is not an effective protection. There is no limit of time within which reference should be made to the Advisory Board or within which the Board should give its report. The persons affected are not entitled to be heard in person or by counsel before the Board though Article 22(1) accords that right to persons charged with a crime. They have no right to test the evidence relied upon by the Govt. or to lead evidence contra. The Govt. is the sole Judge of what evidence it will produce & what it will withhold from the scrutiny of the Advisory Board. The Board cannot compel the Govt. to produce all the evidence in its possession. The Board functions in secrecy & its report, except its final opinion or the opinion of the majority, is confidential. There is not even a provision that if the reference to the Board is not made or the decision of the Board is not given, say within 3 or 6 months, the declaration by the Govt. should stand cancelled. There is no provision that no prosecution or forfeiture shall be made till the Board has given its decision. There is no limit of time for the continuance of the declaration. A report by the Board that there is no justification for the notfn. is like a judgment of acquittal on an appeal from a conviction. But the trial itself is fundamentally opposed to principles of justice & fairplay. The safeguards are nothing compared with those given to a man charged with murder who must at once be produced before a judicial tribunal which investigates the case in public.
74. There is one other feature of the case that must be adverted to. A person who is accused of the offence of being a member of an unlawful association under Section 15 (2) (a) has a right to be tried before a Mag. He can be defended by counsel cross-examine prosecution witnesses, lead evidence in defence, address arguments & establish that the association is not unlawful. By contrast, a person charged as being a member of an unlawful association under Section 15 (2) (b) cannot be heard to dispute the declaration by the Govt. that the association was unlawful. This brings out the unreasonableness of the restriction imposed by the impugned Act on the right of freedom of association declared by Article 19(1)(o) of the Constitution. I do not however consider that this feature of the impugned Act in itself renders it obnoxious to the principle of "equal protection of the laws" in Article 14 of the Constitution. The mere juxtaposition of the two parts of the definition of "unlawful association" in Section 15 (2) (a) & (b) of the Act is by no means decisive. Suppose Section 15 (2) (a) had not been enacted & only Clause (b) had been found in the impugned Act or again suppose that Section 15 (2) (a) & 15 (2) (b) had been the subject of separate enactments. In such a case, it could not be said that there was any discrimination or unequal treatment & it need not make any difference that the two categories are dealt with in one section. Further, it will be observed that the activities of associations dealt with by Section 15 (2) (b) constitute a direct threat to the maintenance of public order or a danger to the public peace whereas the activities of associations falling under Section 15 (2) (a) are injurious to individual citizens or citizens of a particular locality & indirectly to the public peace or public order. It cannot therefore be said that there is no reasonable basis for differentiating between tbe two types of associations whose activities differ in their technique & their consequences. But there is no justification for a radical difference in the procedure for trial of these categories of offences.
75. It was also contended by Mr. Nambiar that the impugned Act violated Article 19(1)(a) & (f) of the Constitution. The Act does not purport to deal directly with freedom of speech or expression by way of prohibition or restriction. It may be that if an association is declared unlawful its members cannot meet & speak & exchange ideas as such members, without incurring the penalty of imprisonment or fine or both. This however is an indirect consequence of the association being declared unlawful, A law may produce an indirect effect in relation to a subject-matter without being a law with reference to that subject-matter. As an individual citizen, each member of the association is free to speak though he is penalised for addressing meetings of an association declared to be unlawful. Article 19(1)(a) has no direct application to the present case. If it has, I must hold that the maintenance of public order does not come within the scope of the restrictions permitted by Article 19(2) in view of the recent decision of the S. C. in Romesh Thappar v. The State of Madras, . The further contention of Mr. Nambiar that the
impugned Act offends Article 19(1)(f) & is not saved by Article 19(5) of the Constitution must be accepted, for the Act directly affects the right to "hold" property by permitting a forfeiture of the "monies, securities & credits" & "move-able properties" of the association declared to be unlawful by the Govt.
76. For the foregoing reasons I hold that the impugned Act (as amended) is in excess of the legislative power of the State conferred by the Constitution. It follows that the Act as it stood before its amendment was also opposed to the Constitution.
77. It is unnecessary to consider the effect of Section 6 of the Amending Act (XI  of 1950). If the Act before its amendment became void under Article 13 of the Constitution, as I hold it did, a notfn. issued pursuant to it is also avoided automatically & cannot be resurrected by any subsequent legislative effort. Further, it cannot be treated as a valid notfn. under the Act (as amended) for it did not comply with the requirements of Sections 15 (2) (b) & 16 of the Act (as amended). If it is to be treated as a mere piece of paper, as my learned brother Satyanarayana Rao J. holds it is it does no harm to anybody for it has no legal effect unless followed up by a proper notfn. complying with the terms of Section 15 (2) (b) of the Act as amended. Only the legislative effort has been barren of results. I need hardly add that this judgment affects the validity of the impugned Act only with reference to associations declared unlawful under Section 15 (2) (b) of the Act. I agree with the orders passed by my Lord, the Chief Justice.
78. I have had the advantage of going through the full & elaborate opinions prepared by my learned brothers. I agree with them in their conclusion, but having regard to the importance of the questions raised before us I shall deal with some of them though briefly.
79. At the outset, learned counsel for the petnr. raised a preliminary point which did not touch the merits of the case. His contention was that after the passing of the Amending Act, there was no valid order in existence which declared the society unlawful. His contention was based on the fact that the Amending Act repealed Section 16 of the old Act & there was no other provision which gave power to the State Govt. to declare an association unlawful. No doubt Section 6 (1) of the Amending Act enacted that all notfns. issued in respect of associations by the State Govt. before the amendment of the Act under Section 16 of the old Act shall have effect as if they had been issued under Section 15 (2) (b) of the said Act as amended by the new Act. But it was contended that Clause (b) of Sub-section (2) of Section 15 only defines an unlawful association & does not expressly confer any power on the Govt. to issue a notfn. The learned Advocate-General met the contention by the argument that such a power should be implied necessarily from the language of Section 15 (2) (b) as amended as well as from the subsequent provisions of the amending Act. Section 16 (1) as amended opens with the words "A notfn. issued under Clause (b) of Sub-section (2) of Section 15 in respect of any association." The Legislature must therefore be taken to have conferred the power to issue such a notfn. Though the power was not expressly conferred, it must be deemed to have been conferred by necessary intendment. The Advocate-General cited to us numerous instances of legislative practice to show that it was always assumed that a reference in a definition clause to a declaration or notfn. by the Govt. impliedly gave the power to the Govt. to make such a declaration or issue such a notfn. I need only refer to the following instances, Madras Salt Act IV  of 1899, Section 3, Clause (k); Rubber Production and Marketing Act (XXIV  of 1947), Section 3 (1), Clause (v); the Indian Ports Act, 1908 (xv  of 1908), Section 3, Clause (8) ; Madras Act XIV  of 1947 Section 2, Clause (b). No case was cited to us in which the validity of the conferment of such an implied power was raised & decided, but the long practice does indicate a well recognised method of a conferring power by implication.
80. There are some cases in the English reports in which learned Judges have inferred by implication the conferment of a power to do an act though there were no express words conferring such power. An enactment that at the elections of Poor Law guardians, the votes should be taken & returned as the Comr., should direct was held to impliedly authorise the appointment of a returning officer: See Rex v. Oldham, (1847) 16 L. J. M. C. 110. In Red v. Green (1852) 21 L. J. M. C. 137 a power to appoint an Asst. overseer was taken to have been impliedly conferred on the Poor Law Commissioners though there was no express provision giving them such power. This rule of construction has been applied even to cases relating to jurisdiction of tribunals. In Maxwell on Interpretation of Statutes, Edn. 9 at p. 139, we find this :
"However effect must of course be given to the intention where the Act without conferring jurisdiction in express terms does so by plain & necessary implication."
In Cullen v. Trimble, (1872) 7 Q. B. 416 : (41 L. J. M. C. 132) it was held that jurisdiction was impliedly given to Justices to summarily convict in a penalty a person guilty of an offence under Section 57, Contagious Diseases (Animals) Act, 1870 though there was no provision conferring on Justices such summary jurisdiction.
81. As I have already stated the intention of the Legislature is made abundantly clear by the several provisions of the Amended Act that the State Govt. has the power to declare by notfn. that an association is unlawful on the grounds stated in Section 15 (2) (b) of the Act as amended. The preliminary objection of the petnr. must fail.
82. Learned counsel for the petnr. attacked the validity of the original Act of 1908 as it stood on the date of the coming into force of the Constitution as well as the Act as its now stands after the recent amendment in 1950 (hereinafter referred to as the Amending Act) on the ground that both the Acts were inconsistent with & contravened the provisions of part III of the Constitution, in particular, Articles 14 & 19 thereof.
83. I think it is convenient to first dispose of the contention based upon Article 14. That article runs thus :
"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
The two phrases "equality before the law" & "the equal protection of the laws" must be taken to denote two different conceptions because of the disjunctive. Otherwise we would be attributing the sin of tautology to the Constitution makers. These two phrases appear to have been taken from the Constitutional doctrine of the two countries, Britain & the United States. It was Dicey who enunciated the doctrine of equality before the law as a part of the rule of law which according to the learned Professor forms the fundamental principle of the British Constitution. It has three meanings or may be regarded from three different points of view. It means in the first place the supremacy of the regular law of the land as opposed to arbitrary power. A man may be punished for a breach of law but he can be punished for nothing else.
"It means again equality before the law, or the equal subjection of all classes to the ordinary law of land administered by the ordinary law Cts. ; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals ;"
This aspect of the rule has been understood to imply that no man however well placed or powerful he be otherwise is above the law; that officials like private citizens are bound to obey the same law & for the same offence are tried by the same judicial tribunals, & that for the vindication of their civil rights or to obtain redress for wrongs done to them, they have to pursue the same remedies (see Dicey p. 193). "Equality before the law" does not mean that the powers & privileges of a private citizen are the same as the powers of a public official or an alien. To perform public duties, public officers may be given special powers. "What the rule of law requires is that any abuse of such power or any other wrongful act by a public officer should be subject to control by the Cts. in the same way as any wrongful act committed by an ordinary citizen. The principle of equality before the law is not violated by the existence of special laws providing for particular groups in the State, e. g. soldiers, doctors, or lawyers. Such laws may not affect the rest of the people but apply only to the members of a particular calling. But in the enforcement of these laws as well as in the enforcement of the general law, no distinction is made between man & man. To give a concrete illustration of the principle, if the criminal law provides for the punishment of an offence any person who is guilty of the offence irrespective of his position in life or his wealth or influence will be liable to be punished in the same way as any other person guilty of the same offence. No doubt the punishment may vary according to the facts of each particular case, but the same set of facts, if they existed in another case, would also result in the same punishment. In my opinion, the principle of equality before the law does not come into play in any controversy as to the legality of a law enacted by the State. It conies into play really in the sphere of its enforcement. This is obvious from the fact that Professor Dicey who treats it as one of the fundamentals of the British Constitution was well aware of the supremacy of the British Parliament in the making of laws. No question can arise in Britain of an Act of Parliament being invalid, because it contravenes the principles of equality before the law. So, when Professor Dicey speaks of the principle being an essential part of the Constitution, it only means that the laws of the land shall be enforced against all persons equally without any distinction being made on any ground whatsoever. In my opinion, it is in this sense that the phrase "equality before the law" is used in Article 14. The impugned Act does not offend this principle.
84. The other concept of "the equal protection of the laws" undoubtedly comes from the 14th Amendment to the United States Constitution. Ordinarily, one should expect, therefore, a great deal of light to be thrown on meaning of the phrase by the decisions of the S. C. of the United States. Unfortunately, however, this phrase occurs along with another phrase "due process of law" & in pronouncing on the validity of State laws, Cts. in America have referred to both provisions leaving it uncertain which provision was deemed "the most pertinent & potent in the premises "(See Willoughby, Students' Edn., p 823). In the famous passage from the judgment of Field J. in Barbier v. Connolly, 113 U. S. 27, which is given in extenso in the judgment of one of my brothers, that learned Judge was expatiating on the 14th Amendment which contains both the provisions of due process & equal protection. Taft C. J., in his opinion in the leading case of Truax v. Corrigan, 257 U. S. 312, conceded that the two provisions overlapped & that a violation of one may involve at times the violation of the other, but pointed out that the spheres of the protection they offer are not conterminous. The due process clause might end to secure equality of law in the sense that it makes a required minimum of protection for every one's right of life, liberty & property which the Congress or the Legislature may not withhold (sic). The learned Chief Justice then observes :
"But the framers & adopters of this Amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guarantee. The guarantee was aimed at undue favour & individual or class privilege, on the one hand, & at hostile discrimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process .... Thus the guarantee was intended to secure equality of protection not only for all but against all similarly situated."
In short the equal protection clause embodies a prohibition against discrimination, discrimination in favour of any person or class as much as discrimination against any person or class. "Equal protection of the laws is a pledge of the protection of equal laws". Yick Wo. v. Hopkins, 118 U. S. 356. It requires that persons subjected to a piece of legislation "shall be treated alike under like circumstances & conditions both in the privileges conferred & in the liabilities imposed" (Hayes v. Missouri, 120 U. S. 68). It prevents "any person or class of persons from being singled out aa a special subject for discriminating & hostile legislation." (Pembina Consolidated Silver Mining Go. v. Commonwealth Pennsylvania, (1883) 125 U. S. 181). It is well established that this clause does not forbid classification for purposes of the exorcise by the State of police power or taxation rights, It is in this sense I understand the phrase as incorporated in Article 14.
85. Is there any thing in the Act as it stood before or after the amendment which offends against this provision ? Mr. Nambiar attempted to bring his case within this clause by referring to the provisions of the Act under which a declaration by the Govt. that an association is unlawful cannot be challenged in a criminal Ct. in a prosecution under Section 17 of the Act. It is common ground that when a person is charged with an offence under Section 17 of the Act, he cannot be heard to say that the association in question is not unlawful, because none of the grounds on which the Govt. can make such declaration exists in the case of that association. The declaration of the Govt. is conclusive that the association is unlawful. Now Mr. Nambiar says that this law discriminates against certain persons & denies them the elementary right which an ordinary accused has of establishing his innocence & disproving the case of the prosecution. While a person charged with an offence under any of the provisions of the I. P. C. is given the right to show that the offence has not been established, a person charged with an offence under Section 17 of the impugned Act is denied that right. Though I was at first impressed to some extent with this argument, on further consideration I think I must reject it. The Act by itself does not discriminate between persons. It does not specify any class or group by a political or religious or linguistic or territorial denomination & declare that they alone are unlawful associations. Provided the conditions are satisfied, namely, that an association is dangerous to public peace or has interfered with the maintenance of law & order or the administration of law, the Govt. declares it unlawfal whichever such association may be. No doubt the procedure laid down in the amended Act is different from the procedure which obtains in the case of other offences. This would amount to a classification & it cannot be said that thia classification is discriminatory. We are familiar with the classification in the Criminal P. C. of offences for the purposes of being tried by officers of different grades according to the nature of the offence. It may be that for very good reasons certain crimes & offences should be tried by special judicial tribunals & not by the ordinary Cts. of the land. On this ground alone it cannot be said that there has been a denial of the equal protection of the laws. The contention of the petnr.'s counsel based on Article 14 of the Constitution must fail.
86. The main part of Mr. Nambiar's argument on behalf of the petnr. rested on Article 19(1) in particular on 19 (1) (c) read with Article 19(4). Article 19(1) embodies the several rights which a free citizen of India is entitled to enjoy. Liberty for its citizen is one of the proclaimed objectives of the Republic of India. The basic freedoms categorically enumerated in Article 19(1) are commonly recognised in all the democratic Constitutions of the world, though in some cases they are not contained in a written constitution. The liberty of the individual is inherent in the conception of the democracy. At the same time, it has always been recognised that freedom or liberty can never be absolute & uncontrolled in an organised society. The very idea of a society consisting of several individuals necessarily leads to a curtailment to some extent of the rights of each individual in so far as it conflicts with the rights of others. Otherwise there would be a state of anarchy :
"The conflict between man & the state is as old as human history. For this reason some compromise must be struck between private liberty & public authority. There is some need of protecting personal liberty against Governmental power & also some need of limiting personal liberty by Governmental power. The ideal situation is a matter of balancing one against the other, or adjusting conflicting interests"
(Willis' Constitutional Law of the United States, p. 477).
This problem of balancing the two conflicting interests has been attempted to be solved in different ways by different countries at different times. In England it is solved by making the Parliament supreme & relying on the good sense of the people, their political tradition & the system of representative & responsible Govt. which has been evolved. In the well-known Liversidge's case, (1942) A. C. 206 : (110 L. J. K. B. 724), Lord Wright said :
"All the Cts. today & not least this House, are as jealous as they have ever been in upholding the liberty of the subject. But that liberty is a liberty confined & controlled by law, whether common law or statute. It is, in Burke's words, a regulated freedom. It is not an abstract or absolute freedom. Parliament is supreme-It can enact extraordinary powers of interfering with personal liberty .... I have ventured on these elementary & obvious observations because it seems to have been suggested on behalf of the applt. that this house was being asked to countenance arbitrary, despotic or tyrannous conduct. But in the constitution of this country there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people & in the system of representative & responsible Govt. which has been evolved."
In U. S. A. on the other hand, to a very great extent, the solution of the problem is left ultimately to the S. C. The task of protecting social interests & individual interests is entrusted really to the S. C. When the Constitution of the United States was framed, there was an impression that Legislatures tend to become tyrannical & "an elective despotism" was as bad as any other kind of despotism. It was not safe always to rely upon public opinion to keep Legislatures from overstepping their bounds. If there was no supreme authority which could act as a check on the highhandedness of the Legislature, the conflict between the State & the individual would almost always end adversely to the individual. The principle of judicial supremacy is now a well accepted feature of the American Constitution. In the words of Woodrow Wilson,
"The Constitutional powers of the Cts. constitute the ultimate safeguard alike of individual privilege & of Governmental prerogative. It is in this sense that our judiciary is the balance-wheel of our whole system."
Most of the work of the S. C. in drawing the line between personal liberty & Governmental control has been done in connection with the due process clause. In the early years of its history, the Ct. definitely favoured personal liberty & extended the scope of the due process clause to such an extent that Holmes J. exclaimed in his dissenting opinion in Baldwin v. Missouri, 281 U. S. 586-
"I have not yet adequately expressed the more than anxiety that I feel at the ever-increasing scope given to the 14th Amendment in cutting down what I believe to be the Constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Ct. as for reason undesirable."
But the S. C. has not remained static. It has changed with the social & economic conditions & it has recognised the existence of what is called "police power" in the State in exercise of which personal liberty could be curtailed in the general interests of the State.
87. The Indian Constitution has not adopted in its entirety either the British example or the American. The Legislature of the Union & of the States are not supreme as the British Parliament is. Equally the judicial supremacy which is a part of the American Constitutional practice does not exist under our Constitution. Neither the S. C. nor this Ct. can declare void any State law on the ground that the Ct. or majority of the Judges composing the Ct. thinks it unreasonable or undesirable. The Legislatures are expressly given the power to restrict or curtail the fundamental rights conferred by Article 19(1), but the conditions for & the limits of such a power are more or less definitely formulated. The Cts. can set aside a State law only if it is in excess of such power. The freedoma vouchsafed to every citizen under Article 19(1) are not absolute freedoms, but are regulated by the provisions in Clauses (2) to (6) of that Article.
88. Bearing this special feature of our Constitution in mind, let me approach the main issue in this case. Article 19(1) Clause (c) declares that all citizens shall have the right to form associations or unions. There can be no doubt--& it was fairly conceded by the learned Advocate General--that the impugned Act, before & after the amendment, directly interferes with the right so declared. "The right of association presupposes organisation & a relation of some permanence between these persons" (Willis). The word "form" therefore must refer not only to the initial commencement of the association, but also to the continuance of the association as such. This was not seriously disputed by the learned Advocate General.
89. I do not agree with the learned counsel for the petnr. that the Act totally destroys the right. The Act does not say that no one shall form associations or unions of any sort. Such a law would of course be a total negation of the right. What the Act prohibits is certain types of associations. Such an Act can only be described as an Act restricting the right & not totally negativing it. Restriction is a limitation imposed upon a person or thing. It may be that even a total suspension of the right for a temporary period would also come within the meaning of restriction. Clause (4) defines the restrictions which are permissible. It runs thus :
"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 law imposing, in the interests of public order or morality reasonable restrictions on the exercise of the right conferred by the said sub-clause."
The restrictions must be (1) in the interests of public order or morality & (2) reasonable. There can be no doubt whatever that the restrictions imposed by the Act are in the interests of public order. The grounds on which the State Govt. can declare an association to be unlawful under the Amending Act are (1) that it constitutes a danger to public peace, (2) that it has interfered or interferes with the maintenance of public order or has such interference for its object & (3) that it has interfered or interferes with the administration of the law or has such interference for its object. Even under the original Act the grounds are similar. A point was raised by Mr. Nambiar for the petnr. that administration of the law is not covered by public order. He would make a difference between law & order, maintenance of order & the administration of the law. But, law & order cannot be really separated. "The conjunction of law & order in common parlance is nob fortuitous. It embodies a fundamental truth. The purpose of the law is the creation & maintenance of order," (per Lord Macmillan). Without proper administration of the law, there can be no maintenance of public order. As Hughes C. J. said in the case of Cox v. New Hampshire, 312 U. S. 569 :
"Civil liberties, as guaranteed by the Constitution, imply the existence of an organised society maintaining public order without which liberty itself could be lost in the excesses of unrestrained abuses."
90. It remains to consider whether the restrictions imposed by the Act are reasonable. What restrictions are reasonable is certainly for the Ct. to decide. There can of course be no absolute standard of reasonableness.
"It would be unreasonable to expect an exact definition of the word 'reasonable.' Reason varies in its conclusions according to the idiosyncracy of the individual & the times & circumstances in which he thinks .... mankind must be satisfied with the reableness within reach" (Strouds Judicial Dictionary).
Even ideas of what is just differ from age to age. What may seem to be just to one man in one age may appear to another man in another age as the very quintessence of injustice. In deciding on the reasonableness of the restrictions, it is not possible to think only in the abstract. Several circumstances must be taken into consideration, in particular, the purpose of the Act, the conditions prevailing in the country at the time, the duration of the restriction, its extent & nature. What may undoubtedly be a reasonable restriction in a state of war or revolution may be utterly unreasonable in normal times. What may be a reasonable restriction if it is for a short period may be unreasonable for a much longer period. The decision of the S. C. in N. B. Khare v. State of Delhi, 1950 M. W. N. 440; (A. I. R. (37) 1960 S. C. 211) is authority for the proposition that in deciding on the reasonableness or otherwise of the restrictions imposed by law, the substantive as well as the procedural provisions of the law should be examined. The learned Chief Justice of India observes thus :
"The law providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Ct. the question of reasonableness of the procedural part of the law .... It seems that the narrow construction, sought to be put on the expression to restrict the Ct's. power to consider only the substantive law on the point is not correct."
Mukherjee J. who wrote a dissenting judgment also agrees with the learned Chief Justice on this point.
91. In considering whether the procedural provisions of the impugned law are reasonable, I think it is necessary to bear in mind that the Act is not a temporary measure. The original Act has been on the statute book since 1908 & there is nothing in the amending Act to show that it is for a limited period. The learned Chief Justice of India in N. B. Khare's case, dealing with the Punjab Public
Safety Act said:
"The further extension of the externment order beyond three months may be for an indefinite period, but in that connection the fact that the whole Act is to remain in force only upto 14-8-1951 cannot be overlooked."
It is also necessary to bear in mind that the Act is punitive in several respects, though it may also have a preventive aspect. Section 17 provides for punishment with imprisonment for terms ranging between six months & three years with or without fine. Section 17-B enables the Govt. to forfeit moveable property & Section 17E moneys securities & credits belonging to the association which has been declared unlawful by the Govt.
92. The first &, in my opinion, the most important defect in the procedural part of the Act which renders the restriction unreasonable is the absence of any provision for the communication of the order of the Govt. declaring an association to be unlawful to the association & its members. The Act provides only for a notfn. in the official gazette. Though it is true such a notfn. may in certain cases be treated as amounting to constructive notice of the order of the Govt. yet in a case where drastic consequences ensue by reason of the order; the interest of the citizens requires a more direct notice. Section 16 (1) (b) provides that the notfn. shall 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 Govt. in respect of the issue of the notfn. Presumably after the lapse of the period so fixed, there will be no right of representation. It is easily conceivable that the members of an association may not have knowledge of the notfn. declaring it to be unlawful till after the lapse of the period fixed. Though all persons in a State are presumed to know the law of the land & ignorance of law is no excuse, I do not think there is anything which makes it incumbent on every citizen to pursue regularly the official gazette. In the case of preventive detention or internment or externment, the order is served on the person concerned. I do not mean to say that personal service is the only mode of service. In cases of evasion or absconding or in other cases where it is impracticable to have personal notice, other modes of service may be resorted to. We are familiar with the alternative modes of notice provided under the Civil P. C. In the case of an association which is registered or has a distinctive name & a definite place set apart for its use, the notfn. can be served on any office-bearer of the association, or if no such office-bearer is available for service by affixture at the reputed place of the association. Without some such notice, it appears to me to be unreasonable to say that the association & its members would be precluded from making a representation to the Govt. against the issue of the notfn. after a fixed time. Section 16 (1) of the Act defines an association, as "any combination or body of persons, whether the same be known by any distinctive name or not." The learned Advocate General contended that it would be open to the Govt. to issue a notfn. declaring "A, B & others" an unlawful association when the association is nob known by a d stinctive name, & it would be open to the Govt. to Hunch a prosecution against C, a person other than A & B, provided they can prove at the hearing of the case that C was associated with A & B. the necessity of a personal notice in such a case on the members alleged to form an association becomes all the more apparent, when in addition to the lack of a distinctive name, the association has no definite place. The opportunity evidently intended to be given to the association & its members to show cause against the issue of the notfn. will be illusory in the absence of a direct communication.
93. The next procedural provision which I think makes the restriction not reasonable is the prohibition against any person making a representation in respect of the notfn. from taking any part in the proceedings of the Advisor, Board. I see no objection in making the proceedings of the Board & its report confidential in the public interest. But so long as the proceedings are not made public, I can see no valid objection to the person aggrieved being given an opportunity of establishing his case by relevant evidence. Article 22(1) of the Constitution provides that a person who is arrested shall not be denied the right to consult & to be defended by a legal practitioner of his choice. Clause (3) of the Article expressly declares that the provision will not apply to any person who for the time being is an enemy alien or to any person who is arrested or detained under any law providing for preventive detention. It is true that before a prosecution is launched under Section 17 of the Act, a member of an unlawful association is not arrested, but once a prosecution is launched, the criminal Ct. is powerless to decide as to the validity of the declaration by the Govt. The fact that he may be entitled to be defended by a practitioner in the criminal Ct. will not be really of much use to him. When penal consequences result from a declaration under Section 15 (2) (b), I think it is reasonable that there should be provision for the aggrieved person to defend himself. I must also mention the fact to which reference has been made by my learned brothers, namely, that when a person is charged under Section 17 as being a member of an unlawful association within the meaning of Section 15(2) (a), the established procedure of the criminal Cts. of the land will apply. The onus will be on the prosecution to affirmatively establish that the association encourages or aids persons to commit acts of violence or intimidation or that the members of the association habitually commit such acts. The accused will be entitled to lead rebutting evidence & the Ct. is entitled to adjudicate on the issue whether the association is unlawful within the meaning of the enactment. I can understand in the case of a declaration by Govt. the onus shifting on to the accused who may be called upon to establish that the declaration of the Govt. is unwarranted & illegal. But to say that an association shall be deemed to be unlawful once & for ever by a declaration by the Govt. subject only to the opinion of an Advisory Board which merely considers the material placed before it by the Govt. & may or may not call for further information from the association or its members & which does not conduct its proceedings in the presence of the aggrieved party or some one representing him appears to me to unreasonably restrict the right conferred by Article 19(1)(c) of the Constitution. I may also add that there is nothing making it incumbent on the Govt. to refer the notfn. to the Advisory Board within a definite time & there is nothing to compel the Advisory Board to make its report within a particular time, circumstances to which my learned brothers have alluded. Personally, these later defects alone would not, in my opinion, render the Act repugnant to the Constitution though I entirely agree that it is desirable in the interests of the rights of the citizens that there should be provision for expeditious disposal of the matter by the Govt. & the Advisory Board.
94. I have, therefore, come to the same conclusion as my learned brothers that the Amending Act is void as it is inconsistent with the provisions of Part III of the Constitution, in particular with the provisions of Article 19.
95. It follows that the original Act before its amendment, became void on the coming into force of the Constitution. In fact the learned Advocate-General found it very difficult to sustain the validity of the original Act which did not provide any opportunity for the declaration by the Govt. to be challenged in any manner. One could not find a better illustration of the exercise of naked arbitrary power than the original Criminal Law Amendment Act. The Govt. had only to issue a notfn. on a subjective satisfaction that an association was unlawful & it was infallible & conclusive. It is impossible to say that the restriction imposed by the original Act is in any sense reasonable within the meaning of Article 19(4) of the Constitution.
96. In the view I have taken of the validity of the Amending Act, it is not necessary to deal at length with the argument which arises only if the original Act is held to have become void but the Amending Act is valid, namely, the effect of Section 6 of the Amending Act. Under Sub-section (1) of that section, all notfns. issued by the Govt. before the commencement of the Amending Act under Section 16 of the original Act & not cancelled shall as from the commencement of the Amending Act have effect as if they had been issued under Section 15 (2) (b) of the said Act as amended by the Amending Act. If, on the coming into force of the Constitution Section 16 of the original Act became void, any notfn. issued under that section would obviously also become void. It is, therefore, arguable that such a notfn. cannot be validated by retroactive legislation. But that is not what has been done by Section 6 (1) of the Amending Act. It does not purport to render the notfn. already issued valid from the date of its issue. It is only deemed to have been issued on the date of the Amending Act & deemed to have been issued under Section 15 (2) (b) of the Amending Act. This provision was obviously intended to avoid re-issue of all the notfns. originally issued under Section 16 of the unamended Act. I fail to see why this should not be done as a matter of convenience. If it should be held that the Amending Act is valid, then I would hold that the appln. is premature, because the supplementary notfn. contemplated by the proviso to Section 6 (1) of the Amending Act had not been issued by the date of the hearing of the appln.
97. In the result, the order of the State of Madras in G. O. ms. No. 1517 Public (General) Department dated 10-3-1950 is hereby quashed & the rule nisi already issued will be made absolute. As a consequence the Govt. Order No. 1733 (Public) dated 31-3-1950 will also be quashed.
98. As we were about to deliver our judgments, the learned Advocate-General brought to our notice the decision of a F.B. of the Madhya Bharat H.C. Anand Bhasker v. State, A.I.R. (37) 1950 M.B. 60 : (51 Cr. L. J. 1352 F.B.) in which Kaul C. J. & Shinde J. held (Mehta J, dissenting) that Article 226 does not provide for any remedy which apart from the existing law would be available to a person for enforcement of any of the rights dealt with in Part III of the Constitution & therefore the H. C. could not entertain an appln. under Article 226 for the issue of a direction in the nature of a habeas corpus apart from the provision of Section 491, Cr. P. C. Assuming that the decision in that case is correct & we have grave doubts as to its correctness--this Ct. which undoubtedly possesses the jurisdiction & power to issue prerogative writs like certiorari, prohibition, etc., must be held to have the jurisdiction & power to grant those writs for the enforcement of the rights mentioned in Part III of the Constitution as well. It is not denied by the learned Advocate-General that this Ct. had at the commencement of the Constitution the jurisdiction & power to issue a writ of certiorari within the limits of its original jurisdiction at least. It follows, therefore, that this jurisdiction which is continued to us under Article 225 would enable this Ct. to issue a writ of certiorari in the present case. It is, therefore, unnecessary to canvass the correctness of the decision cited to us in this case.
99. The petnr. will have his costs fixed at Rs. 250. A certificate will issue under Article 132 that this case involves a substantial question of law as to the interpretation of the Constitution, in particular Articles 14 & 19 thereof.