Case Note & Summary
The appeal arose from a criminal prosecution under Section 9 of the Punjab Security of State Act, 1953. The appellant had been charged with making a speech at a public meeting of Defence Department employees on October 9, 1968, allegedly inciting them to commit offences prejudicial to the security of the State or to the maintenance of public order. The speech included references to a hunger strike, threats against a minister, and a comparison to Udham Singh. The Magistrate perused documents filed under Section 173 of the Code of Criminal Procedure and framed a charge on July 3, 1969. The appellant unsuccessfully challenged the charge before the Sessions Court and then by revision before the Delhi High Court. The High Court, after considering the offending portion of the speech, held that prima facie the remarks amounted to an offence under Section 9, but left it open to the appellant to show at trial that the remarks did not amount to incitement. The High Court dismissed the revision on February 24, 1972. The appellant then obtained special leave from the Supreme Court. In January 1973, he filed an application seeking permission to urge additional grounds questioning the constitutional validity of Section 9. The Supreme Court permitted the pure question of law to be raised. The main legal issues were whether Section 9 violated the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution, whether the restriction was unreasonable, whether the question could be raised for the first time in the Supreme Court, and the scope of an appeal by special leave under Article 136. The appellant contended that Section 9 was overbroad and not saved by Article 19(2), and alternatively that it should be read down to cover only speech inciting violence or creating public disorder, relying on Superintendent of Central Jail, Fatehgarh v. Ram Manohar Lohia and Kedarnath Singh v. State of Bihar. The Court compared Section 9 with Article 19(2) and found that except for the phrase 'tends to overthrow the State', the section replicated the restrictions in Article 19(2). The additional phrase fell within the expression 'incitement to an offence prejudicial to the security of the State' and was therefore a reasonable restriction in the interest of security of State. The Court distinguished Ram Manohar Lohia on the ground that Section 3 of the U.P. Special Powers Act was materially different. It rejected the analogy to Section 124(1) IPC as wholly misconceived. On the procedural point, the Court held that although a pure question of law regarding constitutional validity could be raised for the first time, in a special leave appeal the appellant could not claim adjudication on merits as of right. The Court declined to pronounce on the merits of the charge and dismissed the appeal, thereby upholding the constitutional validity of Section 9.
Headnote
A) Constitutional Law - Freedom of Speech and Expression - Reasonable Restrictions - Constitution of India, Article 19(1)(a), Article 19(2); Punjab Security of State Act, 1953, Section 9 - The appellant challenged Section 9 which penalises speech undermining security of State, public order, etc., and speech tending to overthrow the State as violative of Article 19(1)(a). The Court held that except the phrase 'tends to overthrow the State', the section replicated Article 19(2) restrictions; the additional phrase fell within 'incitement to an offence prejudicial to the security of the State' and 'security of the State' under Article 19(2), making the restriction prima facie reasonable and constitutionally valid. Held that Section 9 is saved by Article 19(2). (Paras 4-6) B) Constitutional Law - Interpretation of Penal Statutes - Limiting Construction - Punjab Security of State Act, 1953, Section 9; Indian Penal Code, 1860, Section 124(1) - The appellant argued that Section 9 should be read down to cover only incitement to violence or intention or tendency to create public disorder, relying on Kedarnath Singh v. State of Bihar interpretation of Section 124(1) IPC. The Court rejected this, stating the analogy was wholly misconceived and Section 9 could not be restricted to speeches inciting violence because of the comprehensive sweep of Article 19(2). (Paras 4-6) C) Constitutional Law - Judicial Review - Raising New Plea - Constitution of India, Article 136 - Scope of Appeal by Special Leave - The appellant sought to raise constitutional validity of Section 9 for the first time in the Supreme Court. The Court permitted the pure question of law to be argued, but clarified that in an appeal by special leave under Article 136, the scope of appeal is not enlarged after leave and the appellant cannot claim adjudication on merits as of right; the Court would not pronounce on the merits of the charge framed. (Paras 7-8) D) Constitutional Law - Precedent - Distinguishing Cases - Superintendent of Central Jail, Fatehgarh v. Ram Manohar Lohia, [1962] 2 S.C.R. 321 - The appellant relied on this case where Section 3 of U.P. Special Powers Act was struck down. The Court distinguished it because that section prohibited instigating non-payment of liability, materially different from Section 9; Section 3 was clearly hit by Article 19(1)(a), unlike Section 9 which was saved by Article 19(2). (Paras 5-6)
Issue of Consideration
Whether Section 9 of the Punjab Security of State Act, 1953 violates Article 19(1)(a) of the Constitution; whether the restriction imposed by Section 9 is unreasonable; whether a pure question of law regarding constitutional validity of an Act can be raised for the first time in the Supreme Court; and the scope of an appeal by special leave under Article 136 of the Constitution.
Final Decision
The Supreme Court dismissed the appeal, holding Section 9 of the Punjab Security of State Act, 1953 constitutionally valid as a reasonable restriction under Article 19(2) of the Constitution. The Court declined to quash the charge or pronounce on the merits of the charge framed against the appellant.
Law Points
- Section 9 of Punjab Security of State Act
- 1953 reproduces restrictions in Article 19(2) of Constitution
- speech tending to overthrow State falls within incitement to an offence prejudicial to security of State and is reasonable restriction
- pure question of law on constitutional validity can be raised first time in Supreme Court
- in special leave appeal appellant cannot claim adjudication on merits as of right
- Section 124(1) IPC analogy misconceived
