Ram Manohar Lohia And Ors. vs State Of U.P. And Ors. on 15 March, 1967

    Ram Manohar Lohia And Ors. vs State Of U.P. And Ors. on 15/3/1967

JUDGMENT

   Gangeshwar Prasad, J.

   1. This is a petition for writ of Habeas Corpus by seven persons who were
confined as undertrial prisoners in the district Jail of Agra at the time of
making the petition. Petitioner No. 1 is Dr. Ram Manohar Lohia who is a member
of the Lok Sabha; petitioner No. 2 is Sri Brij Raj Singh who, according to the
petition, is an old worker of the Samyukt Socialist Party and who was member of
the Lok Sabha from 1957 to 1962; petitioner No. 3 is Sri Baloji Agarwal, who is
a member of the Uttar Pradesh Vidhan Sabha from the Agra City Constituency; and
the remaining petitioners are Sri Hukum Singh Parihar, Sri Ram Sanehi Lal
Yadava, Sri Kitab Singh Yadaya and Sri Ganga Prasad Sharma who, according to the
petition, are active workers of the Samyukt Socialist party. The opposite
parties to the petition are the State of Uttar Pradesh, Sri Ravi Shanker Johri,
District Magistrate Agra, and Sri K. C. Seth, Additional District Magistrate
(Judicial), Agra.

   2. The facts which led upto the petition are briefly as follows: Some
political parties including the Samyukt Socialist Party were trying to organise
'U. P. Bandh' on July 12, 1966. In view of this situation, Opposite party No. 2,
the District Magistrate of Agra, acting under Section 144 Cr. P. C. passed an
order the relevant portions of which are as follows:

     "To

     The General Public residing or frequenting Agra District.

     Whereas information has been received that in connection with U. P. Bund
Agitation there is likelihood of some sections of the public indulging in
violence and lawlessness to force the closure of shops, offices etc. and thereby
causing breach of the peace and

     Whereas immediate prevention and speedy remedy is desirable for maintaining
public peace and tranquillity;

     Now, Therefore in exercise of the powers under Section 144 of the Code of
Criminal Procedure 1898, I. R. S. Johri District Magistrate, Agra hereby order
as follows:

     (i) No procession or demonstration of any kind shall be organised or taken
out anywhere in the district without a special permit from me or from the Sub-
Divisional Magistrate concerned or the Superintendent of Police Agra.

     (ii) No assembly of five or more persons shall gather together at any
public place. Any such assembly shall be deemed to be unlawful and shall be
liable to be dispersed by necessary force without further warning if it does not
disperse upon command by a Magistrate or an officer in charge of the Police
Station.

     Exception -- This prohibition does not apply to bona fide religious
assemblies at places of worship like temple, mosque, gurdwara, church, etc.

     (iii) .. .. .. .. .. .

     (iv) .. .. .. .. .. .

     (v) .. .. .. .. .. .

     (vi) No person shall indulge in any inflamatory speech as may likely to
cause disturbance of the public peace.

     (vii) .. .. .. .. ..

     (viii) No person shall shout or make use of any slogans in public street of
public places likely to cause a breach of the peace.

     (ix) This order shall come into force at once and shall remain in force for
a period 15 days unless withdrawn earlier.

     (x) This order is passed ex parte in view of the emergency.

     (xi) This order shall apply to the limits of Agra District;

     (xii) A breach of any of the provisions of this order is punishable under
Section 188 of the Indian Penal Code.

     (xiii) ..................

     Given under my hand and the seal of the Court this Tenth day of July 1966.

     Sd/- R.S. Johri,

     District Magistrate, Agra.

     A public meeting in connection with the observance of U. P. Bundh Day had
been arranged to be held in the evening of July 11, 1966 in Phulatti Bazar, Agra
and it was to be addressed by Dr. Ram Manohar Lohia Dr. Ram Manohar Lohia
arrived at Rajamandi Railway Station Agra in the afternoon of July 11, 1966 by
the Toofan Express and when he came out of the railway station he was arrested
by the Police. The other petitioners, who were present at the railway station to
receive Dr. Ram Manohar Lohia, were also arrested by the police at the same
time. These arrests were for alleged violation of the above order of the
District Magistrate of Agra. Counter-affidavits filed on behalf of the opposite
parties do not disclose the acts which the petitioners are said to have
committed In violation of the order of the District Magistrate, but they may be
gathered from Annexure '4' to the counter-affidavit of Shri J. P. Srivastava,
Assistant Public Prosecutor, Agra. The annexure purports to be a copy of a
report made in the General Diary of Police Station Hariparvat, Agra on July 11,
1966, at 5.00 p.m. by Kr. Tej Pal Singh, Inspector in charge, who effected the
arrests of the petitioners with the help of other police officers. It has been
stated in the report after getting down from the train Dr. Ram Manohar Lohia
delivered an objectionable speech at the platform of Rajamandi Station stressing
that the Bundh had to be organised at all costs, and that the speech created a
fear in the public mind. It has further been stated in the report that the other
petitioners formed a procession and joined Sri Ram Manohar Lohia in shouting
slogans of various kinds. Mention may also be made of the fact that in paragraph
14 of their petition the petitioners say that at the time of his arrest Dr. Ram
Manohar Lohia asked the police officers who had arrested him as to whether they
were imposing restrictions on freedom of speech and they replied that he had
already delivered a speech. However, whether the petitioners did the acts
alleged to have been done by them and whether those acts constituted violation
of the order of the District Magistrate are questions which are not to be
determined in this proceeding and, indeed, neither Sri S. N. Kacker, learned
counsel for the petitioners, nor Dr. Ram Manohar Lohia who addressed the Court
also in person dealt with these questions.

   3. The arrest of the petitioners took place at about 2.45 p.m. The same day
at about 4.00 p.m. they were produced before Sri S. N. Sharma, Judicial Officer
Agra, who remanded the petitioners to fail custody upto July 12, 1966, Till then
no complaint had been filed against the petitioners. On July 12, 1966, however,
opposite party No. 2, the District Magistrate of Agra, filed a complaint against
the petitioners before Sri A. N. Kapoor, Magistrate 1st Class Agra, stating that
the petitioners had contravened his prohibitory order under Section 144 Cr. P.
C. dated July 10, 1966 and the contravention was punishable under Section 188 I.
P. C. The petitioners were not brought to court from jail on that date and an
application, copy of which is Annexure '5' to the counter-affidavit of Sri J. P.
Srivastava, was moved on behalf of the State before Sri A. N. Kapoor stating
that due to heavy law and order duties it was not possible to arrange escort for
bringing undertrials from jail and requesting him that proceedings in the case
against the petitioners be taken in the jail premises. The Magistrate accepted
the request, but reached the jail at about 5.00 p.m. The petitioners were
produced before him and copies of the complaints filed against them by the
District Magistrate of Agra, and, according to the counter-affidavit of Sri J.
P. Srivastava, Assistant Public Prosecutor Agra copies also of the General Diary
report made by Kr. Tej Pal Singh in police station Hariparvat on July 11, 1966,
at 5.00 p.m. were furnished to them. The petitioners made an application, copy
of which is Annexure '6' to the counter-affidavit of Sri J. P. Srivastava,
praying that further proceedings in the case be taken forthwith and the
statements of the petitioners and the prosecution witnesses be recorded. The
Magistrate, however, adjourned the hearing of the case to July 16, 1966 with the
direction that it would take place in court. Meanwhile, on July 13, 1966, the
petitioners applied to the Additional District Magistrate (Judicial), Sri
Chitrangad Singh, for the transfer of the case from the court of Sri A. N.
Kapoor. The application was allowed on July 14, 1966 and the Additional District
Magistrate (Judicial) transferred the case from the court of Sri A. N. Kapoor to
his own court. On July 16, 1966 an application was moved on behalf of the State
before the sessions Judge Agra for the transfer of the case from the court of
Sri Chitrangad Singh, Additional District Magistrate (Judicial), and for staying
proceedings meanwhile. While this application was pending Sri Chitrangad Singh
was transferred from Agra and Sri K. C. Seth took over charge as Additional
District Magistrate (Judicial) Agra on July 18, 1966. The State did not
thereafter press its application for transfer. On July 20, 1966 the petitioners
sent this petition from jail A day later, i.e. on July 21, 1966, the petitioners
were released from jail on their furnishing personal bonds of Rs. 200/- each as
directed by the Sessions Judge Agra by his order dated July 16, 1966. The
position, therefore, is that a case under Section 188 I.P.C. for the alleged
infringement of the above quoted order of the District Magistrate passed under
Section 144 Cr. P. C. is pending against the petitioners and they have been
released from jail on their executing personal bonds.

   4. The writ petition, as originally presented by the petitioners, contains
the following prayers:

     (1) Section 144 Cr. P. C. or that pari of it which relates to disturbance
of the public tranquillity or a riot or an affray be struck down as
unconstitutional, and

     (2) as a consequence of the grant of the above prayer the petitioners be
released but even if the State withdraws the case against the petitioners, the
question of the constitutionality of Section 144 Cr. P. C. be determined.

   In the course of the hearing of the petition the petitioners made an
application for amendment of their petition seeking to add the prayer that
Section 188 I. P. C. also be declared unconstitutional and the application was
allowed. The petition thus challenges the validity of Section 144 Cr. P. C under
which the order of the District Magistrate of Agra which the petitioners are
alleged to have contravened was passed and also the validity of Section 188 I.
P. C. under which a prosecution is pending against the petitioners.

   5. On behalf of the State the learned Govt. Advocate raised a preliminary
objection to the hearing of the petition. He urged that since the petitioners
have been released from jail their petition has become infructuous and no writ
of Habeas Corpus can now be issued. The objection is plainly untenable. The
petitioners have been released, on their furnishing personal bonds as required
by the order of the Sessions Judge of Agra. The release has not, therefore,
restored the petitioners to their liberty and they are subject to the restraint
of the bonds that they have furnished and may again lose the limited freedom
granted to them on breach of the conditions of the bonds. In the case of Babulal
Parate v. State of Maharashtra, AIR 1961 S.C. 884 the Supreme Court had before
it a petition under Article 32 of the Constitution praying among other things
for a writ of Habeas Corpus by a petitioner who was released on bail by the
trying Magistrate after the proceedings pending against him had been stayed by
the Supreme Court, but the Supreme Court did not on account of the release of
the petitioner, treat the petition as infructuous but disposed it of on merits
after a determination of the questions raised in the petition. The question
whether a person who has been released on bail can present a petition for a writ
of Habeas Corpus was specifically raised before a Division Bench of this Court
in Zahir Ahmad v. Ganga Prasad 1962 All LJ 654 :(AIR 1963 All 4) and it was held
that such a person remains under the control of the court and notionally in the
custody of the court and he can, therefore, present a petition for a writ of
Habeas Corpus. The learned Government Advocate sought to distinguish these cases
on the basis that the petitioners therein had been released on bail whereas the
petitioners in the instant case have been released only on their executing
personal bonds. This cannot, however, be any basis for distinction. A personal
bond, as a condition of release, involves restrictions on liberty just as bail
does, and if a person already on bail may present a petition for a writ of
Habeas Corpus or a person released on bail subsequent to the presentation of
such a petition may have his petition decided on merits, there appears to be no
reason why a person who has been released on his furnishing a personal bond may
not present a petition, or a person, upon his release on furnishing personal
bond subsequent to the presentation of a petition for Habeas Corpus, may not
obtain a decision on the questions raised in his petition, if he is otherwise
entitled to do so. The preliminary objection must, therefore be overruled and
the petition must be decided on merits.

   6. The constitutionality of Section 144 Cr. P. C. has been challenged on
behalf of the petitioners on two grounds: firstly, that the section authorises
the imposition of restrictions on the right to freedom of speech and expression.
In the interests of things which are not covered by Article 19(2) of the
Constitution, and restrictions on the right to assemble peaceably and without
arms in the interests of things which are not covered by Article 19(3) of the
Constitution; and secondly, that the powers which are exerciseable under the
section are so wide that the restrictions which it has the effect of imposing
upon the fundamental rights are unreasonable. In view, however, of the
pronouncement of the Supreme Court in the case of AIR 1961 SC 884 it is on the
first ground that emphasis has really been laid.

   7. It is indisputable that the second ground of challenge is clearly ruled
out by the decision of the Supreme Court in the above mentioned case. The
question of the vires of Section 144 Cr. P. C. was raised in the case on a
petition under Article 32 of the Constitution and the main contention on behalf
of the petitioners was that the section places unreasonable restrictions on the
rights guaranteed under Article 19(1)(a) and (b) of the Constitution. After an
exhaustive consideration of the provisions of Section 144 Cr. P. C., the Supreme
Court repelled the contention and held that 'it cannot be said that by reason of
the wide amplitude of the power which Section 144 confers on certain Magistrates
it places unreasonable restrictions on certain fundamental rights.' The second
ground taken on behalf of the petitioners must, therefore, be rejected at once
and it does not call for any further comment.

   8. The question, then is whether the law laid down by the Supreme Court in
the above case also precludes the first ground of attack on the
constitutionality of Section 144 Cr. P. C. Before proceeding to consider that
question, however, it is necessary to make a few matters clear. The petitioners
in this case are concerned with the constitutionality of only that part of
Section 144 which relates to the power of issuing a direction of the nature
specified therein if the direction is considered likely to prevent or tends to
prevent disturbance of the public tranquillity. The prohibitory order which the
petitioners are said to have contravened shows in unmistakeable terms that it
was on that part of the section that the District Magistrate based his order.
According to the preamble of the order, there were two reasons for passing it.
Firstly, information had been received that in connection with the U.P. Bundh
Agitation there was likelihood of some sections of the public indulging in
violence and lawlessness in order to force the closure of shops, offices etc.
and thereby causing breach of the peace Secondly, immediate prevention and
speedy remedy was desirable for maintaining public peace and tranquillity. The
first reason only expressed the information received by the District Magistrate
and even if it may be said that the District Magistrate appears to have accepted
the information as correct it merely furnished the occasion for passing the
order, but the object intended to be achieved by the order was contained only in
the second reason. It is true that the words used in the order, in this
connection, are -- 'desirable for maintaining public peace and tranquillity',
but there can be no doubt that the word 'public' governs both 'peace' and
'tranquillity' and this has not been disputed on behalf of the petitioners. The
position, therefore, is that the order of the District Magistrate was founded on
that part of Section 144 which empowers the issue of a certain direction if the
Magistrate authorised to issue it considers that such direction is likely to
prevent or tends to prevent disturbance of the public tranquillity and since
that part alone affects the petitioners their challenge must be confined to that
part of Section 144 Cr. P. C. and it cannot extend to the entire section. At one
stage of his argument Sri S. N. Kacker, learned counsel for the petitioners,
suggested that if any of the objects for which an order under Section 144 Cr. P.
C. may be passed falls outside the saving provisions of Article 19(2) and (3) of
the Constitution the whole section becomes ultra vires. He also drew attention
to the case of Sri Raj Narain Singh v. District Magistrate Gorakhpur, AIR 1956
All 481 where it was held that some of the clauses of the section were in excess
of the limits permitted by Article 19(2) of the Constitution. Later, however,
this argument was not pressed by the learned counsel and he confined himself to
that clause of the section which relates to disturbance of the public
tranquillity. I may, however, observe that the various activities for the
prevention of which a direction under Section 144 Cr. P.C. may be issued are
quite separate and distinct, and the clauses relating thereto are not
inextricably mixed but capable of surviving independently of one another.
Bearing in mind the test of severability laid down by the Supreme Court in State
of Bombay v. F N. Balsara, AIR 1951 SC 318 and State of Bihar v. Sir Kameshwar
Singh, AIR 1952 SC 252, it must be held that even if clauses relating to some of
the above mentioned activities are found to offend against the Constitution the
whole of Section 144 Cr. P. C. would not on that account become unconstitutional
and void. In AIR 1956 All 481 (supra) also the various clauses relating to the
purposes for which an order under Section 144 Cr. P. C. may be passed were held
to be severable.

   9. The alternative prayer in the first relief claimed by the petitioners in
their petition is that such parts of Section 144 Cr. P. C. as relate to the
public tranquillity, riot and affray be struck down, and Dr. Ram Manohar Lohia
in the course of this argument on the constitutionality of Section 144 Cr. P. C.
dwelt at length on those parts of the section also that relate to riot and
affray, besides the part relating to the public tranquillity. I, however, think
that in this case the vires of only that part of Section 144 has to be
determined which relates to disturbance of the public tranquillity, because the
order by which the petitioners are affected has that part alone as its basis.
Nowhere in the order passed by the District Magistrate is there any reference to
riot and affray, and even the first reason given for the order which, as I have
already said, was only the information received by the District Magistrate --
there is nothing that may relate the order to prevention of a riot or an affray.

   10. I may now briefly set forth the argument advanced on behalf of the
petitioners for attacking the constitutionality of that part of Section 144
which relates to disturbance of the public tranquillity and examine whether, in
view of what has been laid down by the Supreme Court in AIR 1961 SC 884 (Supra),
the argument is still open or whether the matter should be regarded as settled
in favour of the section, so far as this Court is concerned.

   11. The argument on behalf of the petitioners is this. Clauses (2) and (3) of
Article 19 of the Constitution do not extend their protection to a law imposing
on the rights respectively mentioned therein restrictions in the interests of
the public tranquillity. 'Public order' which is one of the things mentioned in
Clause (2) and the only thing mentioned in Clause (3) is not synonymous with the
public tranquillity, and public disorder connotes a disturbance much graver in
nature and magnitude and much larger in extent than a disturbance of the public
tranquillity. A law authorizing the passing of an order for preventing
disturbance of the public tranquillity is not in relation to the right
guaranteed under Article 19(1)(a) of the Constitution, saved by Clause (2) of
Article 19 because, if 'public order' is left out of consideration, there
remains nothing in that clause which may be said to cover 'the public
tranquillity': and in relation to the right guaranteed by Article 19(1)(b), it
is not saved by Clause (3) of Article 19, because that clause mentions 'public
order' alone. In regard to the Supreme Court decision in Babulal Parate's case,
AIR 1961 SC 884 it was submitted on behalf of the petitioners that in that case
the validity of Section 144 Cr. P. C. was not challenged on the ground that the
section was outside the saving categories mentioned in Clauses (2) and (3) of
Article 19 and the challenge to the validity of the sections was limited to the
ground that the restrictions placed by it on certain fundamental rights are
unreasonable In the present case, it was contended, the constitutionality of the
very power to place restrictions, irrespective of their reasonableness, is in
question. It was also said that the question of the power to place restrictions
was not considered by their Lordships in Babulal Parate's case, AIR 1961 SC 884
and in any event, such observations as were made in that case on matters not
covered by the ground on which the validity of Section 144 was challenged are in
the nature of obiter and are not binding. Great reliance was placed on behalf of
the petitioners on the case of Ram Manohar Lohia v. State of Bihar, AIR 1966 SC
740 and it was urged that the first ground of the petitioners' attack on the
relevant clause of Section 144 is supported by what has been laid down there
regarding the meaning of the expression 'public order'.

   12. It is no doubt true that in Babulal Parate's case, AIR 1961 SC 884 it
does not appear to have been contended on behalf of the petitioners that the
power conferred by Section 144 Cr. P. C. is not in the interests of things
specified in Clauses (2) and (3) of Article 19 of the Constitution and the
section is, therefore, ultra vires, irrespective of the fact whether the
restrictions it imposes are reasonable or not. But it is not possible on that
basis to contend that the Supreme Court did not consider the constitutionality
of the section from that point of view also. The question of the reasonableness
of restrictions could arise only when the power to impose restrictions was found
to be present and, therefore, the contention that the Supreme Court did not
consider whether such a power really existed is unacceptable. Para 16 of the
report of the judgment in that case clearly indicates that their Lordships
considered the question whether the activities with regard to which the
Magistrate is entitled under Section 144 Cr. P. C. to place restraint are such
that their prevention would be in the interests of public order and held that
they are such activities. If any doubt is still left about the scope and effect
of this decision it should be dispelled by the final conclusion reached by their
Lordships. That conclusion has been stated in para 34 of the report and is as
follows:--

     "We have, therefore, reached the conclusion that the order of the District
Magistrate is not unconstitutional either because Section 144 is itself
violative of fundamental rights recognised in Article 19 or on the ground that
it is vague and places unreasonable restrictions on those fundamental rights ".

   The opinion expressed in the case by their Lordships, therefore, is that
section 144 Cr. P. C. does not violate Article 19 of the Constitution, and it
necessarily means that such parts of the section as may have the effect of
placing restrictions on the rights guaranteed under Article 19(1)(a) and (b) are
respectively protected by Clauses (2) and (3) of Article 19. This being the law
declared by the Supreme Court it is binding on this Court under Article 141 of
the Constitution and even the first ground on which the validity of Section 144
has been challenged on behalf of the petitioners must accordingly be rejected.

   13. The contention that such observations of the Supreme Court in the above
case as cover matters beyond the reasonableness of the restrictions placed on
certain fundamental rights by Section 144 Cr. P. C. are obiter and, therefore,
of no binding effect is wholly misconceived. A declaration of law made by the
Supreme Court is not a mere precedent and the necessity of the declaration is
not a condition of its binding effect. Even if such a declaration is in the
nature of an obiter Article 141 of the Constitution makes it binding on all
courts. But quite apart from this, it is obvious that the question whether
Clauses (2) and (3) of Article 19 at all permit the imposition of restrictions
is logically prior to the question of the reasonableness of the restrictions,
and no part of the observations of their Lordships relating to the
constitutionality of Section 144 Cr. P. C. was, therefore incidental or
unnecessary for the decision of the case and no part of the observations can be
regarded as obiter. It is a matter of no consequence that the constitutionality
of Section 144 Cr. P. C. was challenged in that case only on the narrow ground
of the reasonableness of the restrictions placed by it and not also on the wider
ground of the total absence of the power to place restrictions. A declaration of
law made by the Supreme Court remains a binding declaration, irrespective of the
fact whether all the pros and cons of the matter to which it relates were put
forward and argued before it. And this would be specially so when the law
declared is in regard to the constitutionality of a statute or a rule, and in
such a case the binding effect of the declaration cannot be measured by or
limited to the points raised on behalf of the parties or to which express
reference is made in the judgment. In this connection I may refer to the
following cases:

   14. In Sharda Prasad Srivastava v. Accountant General Uttar Pradesh
Allahabad, AIR 1955 All 496 the constitutional validity of a contract of service
was in question. In a very similar earlier case the Supreme Court had declared a
contract of that nature valid. Dealing with a new line of attack taken on behalf
of the person challenging the validity of the contract. V. Bhargava, J.
observed:--

     "Secondly, once the Supreme Court has declared that such a contract of
service is valid, it is not open to me to examine the validity of that contract
even on any ground which may not, have been considered by the Supreme Court. The
law declared by the Supreme Court is binding whether the declaration is made
after discussing all possible aspects or without doing so."

   15. In Commr. of Income Tax U. P. and V. P. v. Man Mal Uttam Chand, (1961) 42
I. T. R. 203 (All), a Division Bench of this Court had before it a reference
under Section 66(1) of the Indian Income Tax Act 1922 where one of the points
involved in the case had previously been decided by the Supreme Court under the
Travancore Income Tax Act in which the relevant provisions were similar. V.
Bhargava J., who delivered the judgment of the Bench, observed as follows in
regard to the effect of the decision of the Supreme Court:--

     "In that case their Lordships did not consider the effect of Section
14(2)(c) of the Indian Income Tax Act, as it stood at the relevant time, but we
think that in spite of the fact that that provision was not considered that
decision given by the Supreme Court is binding on us and is a declaration of law
under Article 141 of the Constitution. Consequently we are bound to follow that
decision."

   16. In Harkishan Das v. Emperor, AIR 1944 Lah 33 the vires of certain
provisions of Defence of India Act was challenged. Adverting to a Federal Court
decision and dealing, in the light of Section 212 of the Government of India Act
1935, with the effect of that decision on a contention raised in support of the
challenge Munir. J said:

     "To this contention the preliminary objection of the Advocate-General is
that it cannot be raised in view of the Federal Court decisions in AIR 1943 F.
C. I. and Emperor v. Sibnath Banerjee (not yet reported) in which that Court has
held that the Defence of India Act is intra vires the Indian Legislature. By
reason of Section 212, Government of India Act, the law declared by the Federal
Court so far as applicable has to be followed by us and in the two decisions of
the Federal Court relied on by the learned Advocate-General the law declared by
the Federal Court is that Section 2, Defence of India Act, is not ultra vires
the Indian Legislature. It is contended by Mr. Sikri that the precise point
urged before us was not taken before the Federal Court in those cases and that
consequently there is no adjudication by the Federal Court on the point in
question. This is correct but that does not mean that the Federal Court did not
declare Section 2 to be intra vires. In our opinion the declaration by the
Federal Court that Section 2 is intra vires is binding on us and precludes us
from considering the point raised. The Federal Court may have the power, on this
point being taken before it, to revise its view but so far as we are concerned
we are bound by these decisions."

   17. In my opinion, the Supreme Court decision in Babulal Parate's case, AIR
1961 SC 884 also precludes the controversy raised in the first ground urged on
behalf of the petitioners for challenging the constitutionality of Section 144
Cr. P. C. But even assuming that this ground of challenge is still open I find
it altogether unsustainable.

   18. The meaning and the scope of the expression 'public order' have been the
subject matter of decisions of the Supreme Court and the Federal Court and it
has to be seen whether in the light of these decisions, 'public order' in
Clauses (2) and (3) of Article 19 should be regarded as synonymous with or as
including 'public tranquillity' In AIR 1966 SC 740, Hidayatullah, J. has in his
judgment referred to the earlier decisions, giving at one place passages from
each; of them bearing on the interpretation of the expression 'public order'
along with their context. I may, therefore, quote below that portion of his
Lordship's judgment in full which deals with them. His Lordship has observed:

     "Reliance is first placed upon a decision of the Federal Court in Lakhi
Narayan Das v. Province of Bihar, 1949 FCR 693 at p. 704 = AIR 1950 FC 59 at p.
63, where the Court dealing with Item 1 of Provincial List. 7th Schedule in the
Government of India Act, 1935 which read-

     'Public order (but not including the use of His Majesty's naval, military
or air forces in aid of the civil power' observed that 'public order' with which
that item began was 'a most comprehensive term' Reference is also made to Romesh
Thapar v. State of Madras, 1950 SCR 594 at p 598=AIR 1950 SC 124 at p. 127,
where this Court dealing with the same subject matter also observed:

     '. ...... .'Public order' is an expression of wide connotation and
signifies that state of tranquillity which prevails among the members of a
political society as a result of internal regulations enforced by the Government
which they have established .... it must be taken that 'public safety is used as
a part of the wider concept of public order ......'

     and referring to Entry in List III (Concurrent List) of the 7th schedule of
the Constitution which includes the 'security of ft State' and 'maintenance of
public order' as distinct topics of legislation, observed -

     '..... The Constitution thus requires a line to be drawn in the field of
public order or tranquillity marking off may be, roughly, the boundary between
those serious and aggravated forms of public disorder which are calculated to
endanger the security of the State and the relatively minor breaches of the
peace of a purely local significance, treating for this purpose differences in
degree as if they were differences in kind.'

     Fazl Ali, J. took a different view which he had expressed more fully in
Brij Bhushan v. State of Delhi. 1950 SCR 605 = AIR 1950 SC 129, but he also
observed that 'public safety' had, as a result of a long course of legislative
practice, acquired a well-recognised meaning and was taken to denote safety or
security of the State and that the expression 'public order' was wide enough to
cover small disturbances of the peace which do not jeopardise the security of
the State and paraphrased the words 'public order' as 'public tranquillity'

     Both the aspects of the matters were again before this Court in Supdt.,
Central Prison, Fatehgarh v. Ram Manohar Lohla, (1960) 2 SCR 821-AIR 1960 SC
633, when dealing with the wording of Clause (2) of Article 19 as amended by the
Constitution (First Amendment) Act, 1951, it fell to be decided what 'public
order' meant, Subba Rao, J. speaking for the Court referred to all earlier
rulings and quoting from them came to the conclusion that 'public order' was
equated with public peace and safety and said: '..... .Presumably in an attempt
to get over the effect of these two decisions, the expression 'public order' was
inserted in Article 19(2) of the Constitution by the Constitution (first
Amendment) Act, 1951, with a view to bring in offences involving breach of
purely local significance within the scope of Article 19. .....'

     Summing up the position as he gathered from the earlier cases, the learned
Judge observed:

     '......... 'Public order' is synonymous with public safety and
tranquillity; it is the absence of disorder involving breaches of local
significance in contradistinction to national upheavals, such as revolution,
civil strife, war, affecting the security of the State ........'

     These observations determine the meaning of the words 'public order' in
contradistinction to expressions such as 'public safety', 'security of the
State'. They were made in different contexts. The first three cases dealt with
the meaning in the legislative Lists as to which, it is settled, we must give as
large a meaning as possible. In the last case the meaning of 'public order' was
given in relation to the necessity for amending the Constitution as a result of
the pronouncements of this Court. The context in which the words were used was
different, the occasion was different and the object in sight was different."

   19. Besides the passages quoted in the above decision from (1960) 2 SCR 821=
AIR 1960 SC 633 (supra), I think it necessary to draw attention to one more
passage from that case which runs as follows:--

     "But in India under Article 19(2) this wide concept of 'public order' is
split up under different heads. It enables the imposition of reasonable
restrictions on the exercise of the right to freedom of speech and expression in
the interests of the security of the State, friendly relations with foreign
states, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence. All the grounds mentioned therein can be
brought under the general head 'public order' in its most comprehensive sense.
But the juxtaposition of the different grounds indicates that, though sometimes
they tend to overlap, they must be ordinarily intended to exclude each other.
'Public order' is therefore something which is demarcated from the others. In
that limited sense, particularly in view of the history of the amendment, it can
be postulated that 'public order' is synonymous with public peace, safety and
tranquillity."

   20. The conclusions deducible from these decisions appear to be these; that
the expression 'public order' is a comprehensive expression and it should be
given a large meaning, though not as large as would be given to it in the
legislative Lists of the Constitution; that 'public order' at least comprehends
within itself 'public tranquillity' even if it cannot be equated with 'public
tranquillity' and that public disorder, unlike national upheavals affecting the
security of the State, are of local significance and, as compared to them, less
serious. It was urged on behalf of the petitioners and particularly by Dr. Ram
Manohar Lohia that public disorder connotes a disturbance much graver in
character than a disturbance of the public tranquillity, and that there can be
situations in which public tranquillity is disturbed but not 'public order'. It
was said that this contention is supported by the observations of Hidayatullah,
J. in AIR 1966 SC 740 (supra) and reliance was placed on paras 51 and 52 of the
report of his Lordship's judgment. I however, do not find that the observations
made by his Lordship support the contention which has been put forward. The
question involved in that case was whether the expression 'law and order' used
by a District Magistrate in an order purporting to have been passed by him under
Rule 30(1) (b) of the Defence of India Rules meant the same thing as 'public
order' for maintaining which an order of that kind could be passed under the
said provision. His Lordship held that 'public order' and 'order' are not
identical and explained that distinction between the two concepts. In para 51 of
the judgment his Lordship summed up the distinction in the following words:

     "The contravention of law always affects order but before it can be said to
affect public order, it must affect the community of the public at large."

   His Lordship then proceeded to point out in para 52 the comparative degrees
of gravity involved in disturbances of 'law and order', 'public order', and
'security of the State' and observed:--

     "It will thus appear that just as 'public order' in the rulings of this
Court (earlier cited) was said to comprehend disorders of less gravity than
those affecting 'security of State', 'law and order' also comprehends disorders
of less gravity than those affecting 'public order', One has to imagine three
concentric circles. Law and order represents the largest circle within which is
the next circle representing public order and the smallest circle represents
security of State. It is then easy to see that an act may affect law and order
but not public order just as an act may affect public order but not security of
the State by using the expression 'maintenance of law and order' the District
Magistrate was widening his own field of action and was adding a clause to the
Defence of India Rules."

   21. The position, therefore, is that while 'public order' is included in and
is a part of 'order' it does not cover the entire area of 'order', with the
result that although all public disorders are certainly disorders, all disorders
are not public disorders, the latter being those aggravated forms of disorders
which affect the public at large. What makes this difference in the ideas
conveyed by the expressions 'order' and 'public order' is obviously the word
'public' in the latter expression. Since, however, that word is common to both
'public order' and 'public tranquillity', it is clear that the distinction
between 'order' and 'public order' cannot hold good between 'public
tranquillity' and 'public order'. The question involved in the present case is
whether public tranquillity has the same connotation as 'public order' or is at
least included in it, but on that question his Lordship has expressed no
opinion, and in answering it we have to be guided by the earlier, decisions
which have been referred to in his Lordship's judgment and also by a later
decision of the Supreme Court to which I shall presently refer. Besides the
observations quoted by Hidayatullah, J. from the earlier decisions I may draw
attention to two other observations made by Subba Rao, J. (as his Lordship then
was) in (1960) 2 SCR 821 = (AIR 1960 SC 633) In para 11 of the report his
Lordship said that "it can be postulated that 'public order' is synonymous with
public peace, safety and tranquillity" and in para 18 of the report his Lordship
summed up the position by laying down that " 'public order' is synonymous with
public safety and tranquillity". Observations to a similar effect were made in
the later case of O. K. Ghosh v. E. X. Joseph, AIR 1963 SC 812 where
Gajendragadkar, J. (as his Lordship then was), speaking for the Supreme Court,
said that in Clause (2) of Article 19 public order is 'virtually synonymous with
public peace, safety and tranquillity'. It is not necessary to determine
whether, in the light of these decisions, 'public order' and 'public
tranquility' should be regarded as interchangeable terms and public
tranquillity, by itself and without anything else, may be equated with 'public
order', or whether a 'public order' has some other requisites besides public
tranquillity. Even if 'public order' and 'public tranquillity are not entirely
co-extensive in content the decisions do not, in my opinion, leave any room for
doubt that public tranquillity is at least an essential constituent of 'public
order' and that 'public order' is a comprehensive concept including within
itself as one of its integral parts public tranquillity. The contention of Dr
Ram Manohar Lohia that disturbance of the public tranquillity cannot in all
cases result in the disturbance of 'public order' could have been acceptable if
it had been possible to say that 'public order' can in some cases dispense with
the public tranquillity and exist without it. Since, however, 'public order' is
inconceivable in the absence of the public tranquillity, whatever has the effect
of disturbing the public tranquillity must necessarily disturb 'public order'
and it is not possible to say of any situation that although the public
tranquillity has been disturbed 'public order' has remained unaffected. The
obvious corollary is that whatever is done for preventing disturbance of 'the
public tranquillity' must be regarded as done for preventing disturbance of the
'public order' and, hence, in the interests of 'public order'. The restrictions
which Section 144 Cr. P. C., permits to be imposed for preventing disturbance of
the public tranquillity are, therefore, restrictions within the limits of the
saving provisions of Article 19(2) and (3).

   22. The view that I take in regard to that part of Section 144 Cr. P. C.
which relates to the public tranquillity was also the view taken by this Court
in AIR 1956 All 481 to which I have already referred in another connection. The
Division Bench which decided that case held that to the extent to which Section
144 allows the placing of restrictions for preventing disturbance of the public
tranquillity or a riot or an affray, it is within the limits permitted by
Article 19(2), (3), although it also expressed the opinion that some of the
purposes for which restrictions are allowed to be placed by the section are in
excess of the said limits. In the instant case, however, the constitutionality
of only that part of Section 144 is involved which relates to the public
tranquillity, because the order affecting the petitioners was based on that part
alone. It is, therefore, unnecessary to express any opinion on any other part of
the section.

   23. Before leaving this aspect of the case I must note that in the course of
arguments on behalf of the petitioners it was not urged that the prohibitory
order passed by the District Magistrate of Agra was not an order which could be
validly passed under Section 144 Cr. P. C. or that the order suffered from any
other defect. In fact, Sri S. N. Kacker, learned counsel for the petitioners,
and also Dr. Ram Manohar Lohia, explicitly stated that they pressed the petition
only on the basic question of the constitutionality of Section 144 Cr. P. C. and
Section 188 I. P. C. and they did not want any other matter to be gone into by
this Court in these proceedings.

   24. I now proceed to consider the challenge to the vires of Section 188 I. P.
C. The arguments which Dr Ram Manohar Lohia, who alone addressed the Court on
this part of the case, advanced in support of the challenge were two; firstly,
that Section 188 I. P. C. is inconsistent with Section 144 Cr. P. C. inasmuch as
disturbance of the public tranquillity is not mentioned in the former section
and this omission leads to the anomaly that while an order under Section 144 Cr.
P. C. may be passed in the interests of the public tranquillity a disobedience
of that order is not punishable if it merely causes or tends to cause a
disturbance of the public tranquillity; and secondly, that Section 188 I. P. C.
makes the disobedience of an order passed under Section 144 an offence if the
disobedience causes or tends to cause any of the results mentioned in the
section, but none of the result not even riot or affray is such that the
fundamental rights of freedom of speech and peaceable assembly may be restricted
for the purpose of avoiding it, and, therefore, by reason of the fact that the
section makes the exercise of even the aforesaid fundamental rights punishable
it is void.

   25. It is certainly true that although Section 188 I. P. C. mentions, in the
same words and in the same sequence, all other things for preventing which a
direction may be issued under Section 144 Cr. P. C., it does not mention,
disturbance of the public tranquillity. About the reason for the absence of
these words in Section 188188188188188 I. P. C. one can only speculate. Section
62 of the Code of 1861, Section 518 of the Code of 1872, and Section 144 of the
Code of 1882 which were provisions analogous to Section 144 of the present Code
of Criminal Procedure did not contain the words 'disturbance of the public
tranquillity', and it was in Section 144 Cr. P.C. of the present Criminal
Procedure Code of 1892 that these words were for the first time introduced. No
corresponding amendment was, however, made in the Indian Penal Code. It may be
that the necessity of amending Section 188 I. P. C. and adding therein the said
words was overlooked and the mistake has not been detected by the legislature so
far. But it may also be that the omission to make a corresponding change in
Section 188 I. P. C. was deliberate. The legislature might have thought that
causing or tending to cause disturbance of the public tranquillity, as an
ingredient of an offence, would not be sufficiently definite for positive proof
or disproof, and the disobedience of an order lawfully promulgated by the public
servant should be made an offence only if it causes or tends to cause the
comparatively more definite and determinate results mentioned in Section 188 I.
P. C. To whatever reason, however, the absence of the words 'disturbance of the
public tranquillity' in Section 188 I. P C. might be due, there appears to be no
inconsistency between Section 144 Cr. P. C. and Section 188 I. P. C., and even
if there may be some inconsistency it cannot, to my mind, make either of the
sections unconstitutional.

   26. Prevention of the disturbance of the public tranquillity is one of the
objects for which the competent Magistrate may pass an order under Section 144
Cr. P. C., but in determining whether a person disobeying the order has
committed an offence punishable under Section 188 I. P. C. what has to be seen
is not whether the disobedience caused or tended to cause disturbance of the
public tranquillity, but whether it caused or tended to cause any of the results
mentioned in the second and the third clauses of Section 188 I. P. C.
Disobedience of an order passed under Section 144 Cr. P. C. for preventing
disturbance of the public tranquillity would not, therefore, constitute an
offence under Section 188 I. P. C. if it does not cause any of the results
mentioned in the latter section, although it may cause or tend to cause a
disturbance of the public tranquillity. This may only have the effect of
frustrating in some cases a part of the purpose for which an order under Section
144 Cr. P. C. is passed, but it does not create any conflict between the two
sections or lead to any anomalous result, unless the frustration to any extent
of the object of the order is itself called an anomaly. I say 'part of the
purpose of the order' because the things enumerated in the second and the third
clauses of Section 188 I. P. C. are not unrelated to the public tranquillity
and, it will be noted, riot and affray are included in Chapter VIII of the
Indian Penal Code which deals with what have been described by the Code as
offences against the public tranquillity. However the fact that in some
circumstances an act which was intended to be prevented by an order under
Section 144, Cr. P. C. may not be covered by Section 188 I. P. C. and may go
unpunished cannot be said to introduce any element of constitutional infirmity
in either of the two sections.

   27. Coming to the second argument of Dr. Ram Manohar Lohia regarding Section
188 I. P. C., I may mention that the complaint filed by the District Magistrate
of Agra against the petitioners states only the alleged fact of disobedience of
the directions issued by him under Section 144 Cr. P. C, and there is nothing in
it to show the results, if any, the disobedience caused or tended to cause.
However, Sri S. N. Kacker and Dr. Ram Manohar Lohia stated in the course of
their argument that they did not seek to support the petition on this feature of
the complaint. The argument of Dr. Ram Manohar Lohia was that the whole of
Section 188 I. P. C. was unconstitutional although he laid special emphasis on
that part of it which relates to riot and affray, presumably because he thought
that the other things mentioned in the second and the third clauses of Section
188 I. P. C. could not possibly have any relation to 'public order'. In my
opinion, there is a basic misconception involved in the argument. Section 188 I.
P. C. does not make punishable any act as such but only when it is done in
disobedience to an order duly promulgated by a public servant lawfully empowered
to do so. In the absence of such an order the act would remain altogether
unaffected by the provisions of the section and it is the order prohibiting that
act that has the effect of attaching to it the penalty of the section. What is,
therefore, made punishable under Section 188 I. P. C, when an order placing
constitutionally permissible restrictions on certain fundamental rights is
disobeyed, is not the exercise of the fundamental rights but the transgression
of the constitutionally valid restrictions imposed upon the exercise of the
rights. There can be no doubt that if Section 188 I. P. C. had made mere
disobedience of an order of the above character an offence, even though the
disobedience was not attended by anything else, it would have been open to no
objection on the score of constitutionality. Does the section, then, suffer from
the vice of unconstitutionality, because it makes the disobedience punishable
only under certain conditions? In so far as Section 188 I. P. C. requires
something more than mere disobedience of an order imposing permissible
restrictions on fundamental rights before an act can become an offence under
that section, it only mitigates the rigour of the restrictions. It is,
therefore, incorrect that Section 188 I. P. C. makes the exercise of the
fundamental rights guaranteed under Article 19(1)(a) and (b) punishable in the
interests of things other than 'public order'. If an order under Section 144 Cr.
P. C. imposing restrictions on such rights is constitutional by reason of its
being in the interests of 'public order', a law punishing its disobedience would
also be constitutional, irrespective of the presence or absence of any other
requisite for making the disobedience punishable. The second argument which has
been advanced for challenging the constitutionality of Section 188 I. P. C. is
also therefore, untenable.

   28. As a result of the foregoing discussion, I am of the opinion that Section
144 Cr. P. C., in so far as it empowers the issue of directions which are likely
to prevent or tend to prevent a disturbance of the public tranquillity, is
constitutional and not ultra vires. I express no opinion on any other part of
Section 144 Cr. P. C. because it is not necessary to do so. I am also of the
opinion that Section 188 I. P. C. is constitutional and not ultra vires.

   29. The points raised in support of the petition fail and the petition should
accordingly be dismissed.

   Mahesh Chandra, J.

   30. The facts leading to the arrest of the petitioners are very simple. They
have been given in detail in the judgment of my learned brother and need not be
repeated. The District Magistrate of Agra issued an order on 10-7-1966 under
Section 144, Criminal Procedure Code. In the preamble of the order he mentioned
that from the information received in connection with the U. P. Bundh agitation
there was likelihood of some sections of the public indulging in violence and
lawlessness to force the closure of the shops, offices, etc. and thereby causing
breach of the peace. Immediate prevention and speedy remedy was considered
desirable for maintaining public peace and tranquillity. Consequently he issued
a number of directions under Section 144, Criminal Procedure Code. In connection
with the observance of the U. P. Bundh Day a public meeting had been arranged
for the evening of April 11, 1966 in Phulatti Bazar Agra. It was to be addressed
by Dr. Manohar Lohia, who arrived at Raja Mandi Railway station by the Toofan
Express at 2.45 p.m. on July 11, 1966 and was arrested by the police when he
came out of the railway station. The other petitioners who had come to receive
Dr. Lohia, were also arrested at the same time. It was alleged that Dr. Lohia
delivered an objectionable speech on the platform of the Railway Station and
that objectionable slogans of various kinds were shouted by the petitioners. All
these arrests were alleged to be in violation of the order of the District
Magistrate, Agra. A case under Section 188, I. P. C. for the infringement of the
District Magistrate's order is pending against the petitioners who have been
released on execution of personal bonds.

   31. The petitioners pray that Section 144, Criminal Procedure Code or that
part of it which related to the disturbance of public tranquillity or a riot or
affray be struck down as unconstitutional and that the petitioners be released.
They prayed further that even if the case against the petitioners is withdrawn
by the State the question of the constitutionality of Section 144, Criminal
Procedure Code should be determined. By an amendment they have also been allowed
to add the prayer that Section 188 Indian Penal Code be also declared
unconstitutional.

   32. I agree with my learned brother that the preliminary objection of the
learned Government Advocate that the petition has become infructuous because of
the release of the petitioners from Jail is untenable. The petitioners have not
been restored to their liberty for they are subject to the restraint of the
bonds furnished by them. The petition of Babulal Parate, AIR 1961 SC 884 was
disposed of by the Supreme Court on merits even though the petitioner had been
released on bail, vide AIR 1961 SC 884. In 1962 All LJ 654 (AIR 1963 All 4) this
Court held that a person remains under the control of the Court and notionally
in its custody even after release on bail and could consequently present a
petition for a writ of habeas corpus The mere fact that the petitioners in the
present case have been released on execution of personal bonds does not create
any difference. The restrictions on liberty are there whether it is a release on
only a personal bond or on bail.

   33. It was contended by the learned counsel for the petitioners that the
powers which are exercisable under Section 144 Criminal Procedure Code are so
wide that the restrictions had the effect of imposing restrictions upon the
fundamental rights are unreasonable. In Babulal Parate's case, AIR 1961 SC 884
(Supra) the Supreme Court held that the section does not confer an arbitrary
power on the Magistrate in the matter of making an order and that the power of
the Magistrate under the section is not unlimited or untramelled. It is true
that the judgment is to be of the Magistrate whether in the peculiar
circumstances of a case an order in exercise of these powers should be made or
not. But the Court was entitled to assume that power would be exercised
legitimately and honestly and the section could not be struck down on the ground
that the Magistrate might possibly abuse his powers. The fundamental rights
guaranteed under Article 19(1) of the Constitution were subject to the
restrictions placed in the subsequent clauses of Article 19 permitting
reasonable restrictions on the exercise of the right to freedom of speech and
expression in the interest, among other things, of public order. The action
permissible under Section 144, Criminal Procedure Code is an anticipatory action
and cannot be said to be impermissible under Clauses (2) and (3) of Article 19
merely because it is anticipatory. The Supreme Court also held that the remedy
of Judicial review cannot be said to be illusory. Mudholkar, J., speaking for
the Supreme Court, observed; "We would also like to point out that the penalty
for infringing an order under Section 144 is that provided in Section 188 Indian
Penal Code. When, therefore, a prosecution is launched thereunder, the validity
of the order under Section 144 Criminal Procedure Code could be challenged."

   Mudholkar. J. further observed:

     "Further since the propriety of the order is open to challenge it cannot be
said that by reason of the wide amplitude of the power which Section 144 confers
on certain Magistrate it places unreasonable restrictions on certain fundamental
rights."

   34. I agree that these observations are binding on this Court under Article
141 of the Constitution even though they may be in the nature of obiter.

   35. It was also contended by the learned counsel for petitioners that the
purposes for which the section authorises the imposition of restriction on the
right to freedom of speech and expression and a right to assemble peaceably and
without arms are not covered by Article 19(2) and (3) of the Constitution and
that Section 144. Criminal Procedure Code was consequently unconstitutional. The
order of the District Magistrate of Agra in the present case recited the
apprehension that section of the public were likely to indulge in violence and
lawlessness in order to force closure of shop offices, etc. and thereby cause
breach of the peace. It also mentioned the desirability for immediate prevention
and speedy remedy for maintaining public peace and tranquillity. This was thus
the sole object for which the order of the District Magistrate was made. We are
consequently concerned in this petition with only that part of Section 144,
Criminal Procedure Code which empowered the Magistrate to issue a certain
direction which he considered likely to prevent or tend to prevent disturbance
of public tranquillity. There is not the slightest doubt that the various
activities for the prevention of which a direction may be issued by a Magistrate
under Section 144, Criminal Procedure Code are separate and distinct and
consequently that part of the section which relates to a direction likely to
prevent or stand to prevent disturbance of public tranquillity is clearly
separable from the other part of the section. I would, therefore, agree with my
learned brother that in this case it is not necessary to express any opinion on
any other part of Section 144, Criminal Procedure Code.

   36. I would also agree with the conclusion of my learned brother that Section
144, Criminal Procedure Code in so far as it relates to a direction which is
likely to prevent or tends to prevent a disturbance of public tranquillity is
not ultra vires. I would, however, hesitate to use any phrase or expression
which might be taken to justify in the name of public order any unreasonable
restriction on the right to freedom of speech and expression and to assemble
peaceably and without arms. True, reasonable restrictions in the interest of
public order have to be permitted. But it is equally true that democracy is
based on the light to freedom of speech and expression. Without this elementary
right democracy is bound to perish or degenerate into autocracy. Nor can it be
said that a mere disturbance of the tranquillity of a great number of people
amounts to a disturbance of public order.

   37. Dr. Lohia in his arguments translated the word ''tranquillity" as 'kfUr
and the word "order" as O;oLFkk I would agree with him that the Hindi
equivalents suggested by him give us a correct idea of the implications of the
two words. We should not forget that a democracy functions in a manner entirely
different from autocracy Radical progress in democracy is bound to give rise to
discussions in press and on platform involving disturbance of tranquillity of a
vast number of people. For instance, preparation of the people for land reforms
involving the abolition of zamindari necessarily disturbed the tranquillity of
great number of the people of the States of U. P. and Bihar, since it was to
affect not only the Talukdars and big zamindars but also the small zamindars.
But it could not be said to have disturbed public order. It cannot be denied
that the people were agitated and agitation is disturbance of tranquillity, for
tranquillity 'kfUr is that serenity and calmness which is bound to be disturbed
and agitated when any radical reforms are about to be launched against vested
interests and established views about certain state of affairs are challenged
and canvassed against. Again, in an enlightened democracy tranquillity of the
people may be disturbed even without speech and expression. For instance, prices
of food rising with an inordinately high speed would disturb the tranquillity of
the people and agitate their minds even though discussions in press and on
platform may be completely curbed But really no such complete stoppage of
discussion could be possible in an enlightened democracy, which works by
persuasion, and after persuasion even by change of government by one party to
government by another party. It would not, therefore, be correct to give the
phrase "in the interests of public order" a meaning which would abolish all
canvassing of a progressive reform or criticism and discussion of action of
government and consequent agitation of the mind of the people.

   38. I would not, therefore, be prepared to go beyond the extent to which
their Lordships of the Supreme Court have gone, and would not give to "public
order" a meaning more comprehensive than that given by them. They have
themselves made a distinction between maintenance of "law and order" and "public
order". Mudholkar, J. observed in AIR 1966 S.C. 740 at p. 763.

     "The expression "Law and order" does not find any place in the rule and is
not synonymous with "public order". It seems to me that "law and order" is a
comprehensive expression in which would be included not merely public order but
matters such as public peace, tranquillity, orderliness in a locality or a local
area and perhaps some other matters. "Public order" is something distinct from
order or orderliness in a local area."

   39. In the same case Hidayatullah. J observed at page 758

     "Does the expression "public order" take in every kind of disorders or only
some of them? The answer to this serves to distinguish "public order" from "law
and order" because the latter undoubtedly takes in all of them. Public order if
disturbed, must lead to public disorder. Every breach of the peace does not lead
to public disorder. When two drunkards quarrel and fight there is disorder but
not public disorder. They can be dealt with under the powers to maintain law and
order but cannot be detained on the ground that they were disturbing public
order. Suppose that the two fighters were of rival communities and one of them
tried to raise communal passions. The problem is still one of law and order but
it raises the apprehension of public disorder. Other examples can be imagined.
The contravention of law always affects order but before it can be said to
affect public order, it must affect the community or the public at large. . . ".
The Supreme Court has thus refused to make "public order" as comprehensive as
"maintenance of law and order".

   40. Relying on the observations of Hldayatullah, J. Dr. Lohia however
contended that the decision in AIR 1966 SC 740 (supra) in 1966, modified the
earlier view of the Supreme Court that "public order" was synonymous with public
safety and tranquillity. This contention is without force. In the judgment of
Hidayatullah, J. in AIR 1966 SC 740 (supra), the judgment of Subba Rao, J. in
AIR 1960 S C 633, was mentioned and the specific observations of Subba Rao, J.
quoted were-

     "public order" is synonymous with public safety and tranquillity;. ....".
Hidayatullah, J. did not dissent from these observations in so far as the
meaning of the phrase "public order" used in Article 19(2) of the Constitution
was concerned. Consequently, whatever meaning might be attached to the word
"tranquillity" standing alone, when the word "tranquillity" is qualified by the
word "public" in Section 144, Criminal Procedure Code, we are clearly bound by
the decision of the Supreme Court in (1960) 2 SCR 821 : AIR 1960 SC 633 (Supra)
that "public order" is synonymous with public safety and tranquillity.
Hidayatullah, J. himself went on to place "law and order" in the largest
concentric circle and "public order" in the next circle and security of State in
the smallest circle and the reason for placing "public order" in a smaller
circle than that of "law and order" was the use of the word "public" before the
word "order".

   41. While on the one hand the necessity for the right to freedom of speech
and expression and to assemble peaceably and without arms in a democracy is
there, it cannot be denied that this right itself cannot be properly exercised
by all without permitting a law which imposes reasonable restrictions in the
interests of public order. No democracy can exist if "public order" is freely
allowed to be disturbed by a section of the citizens. That was the background in
which Clauses (2) and (3) of Article 19 of the Constitution had to be amended by
insertion of the words "public order" In view of the decision of the Supreme
Court equating "public order" with "public safety and tranquillity" the
provisions in Section 144, Criminal Procedure Code for issue of directions which
are likely to prevent or tend to prevent a disturbance of the public
tranquallity cannot be said to be ultra vires.

   42. Dr. Ram Manohar Lohia also con-tended that Section 188 Indian Penal Code
itself was ultra vires. For the reasons mentioned by my learned brother and
which I need not repeat I am also of the view that Section 188, Indian Penal
Code is constitutional and not ultra vires.

   43. I would, therefore, agree that the petition be dismissed.

   BY THE BENCH

   ORDER

   44. We dismiss the petition.