S. H. SHETH, J. ( 1 ) THE facts of the case, briefly stated, are as under. Petitioner No. 1 is the editor of "bhumiputra" - a periodical which is published thrice a month - on the 6th, 16th and 26th of every month. Petitioner no. 2 is the keeper of Yagna Mudrika press where "bhumiputra" is printed. ( 2 ) THIS periodical is devoted to sarvodaya ideology which appears to be a variant of Gandhian ideology. Non-violence is its creed and it professes to educate public opinion in the values of liberty and democracy. It is published by Yagna Prakashan Samiti which is a public trust. This Samiti is a Committeee of the Sarvodaya Mandal which is wedded to Sarvodaya ideology. ( 3 ) ON June 25, 1975 the President of india issued the Second Proclamation of emergency under clause (1) of Article 362 of the Constitution. On 27th June 1975, the President of India made an order under clause (1) of Article 369 of the constitution and suspended the enforcement of fundamental rights guaranteed by Articles 14, 21 and 22 of the Constitution. ( 4 ) THE Defence of India Act which was enacted by the Parliament in 1971 was amended by the Defence of India (Amendment) Ordinance, 1975 which was later enacted by the Parliament by central Act 32 of 1975. Consequent upon its amendment, it came to be known as the Defence and Internal Security of India act, 1971. Defence of India Rules, 1971 which were originally made were amended by the Central Government in pursuance of the amendment made to the defence of India Act and the amended rules came to be known as the Defence and Internal Security of India Rules, 1971. On June 26,1975 the Central Government made the Statutory Order under Rule 48 by which it subjected all news, comments, rumours and other reports to precensorship and prohibited their printing and publication without the prior written permission of the Censor or an authorised officer. It was amended on august 12, 1975. It is hereinafter referred to as the statutory Order simpliciler. It was amended on august 12, 1975. It is hereinafter referred to as the statutory Order simpliciler. ( 5 ) POWER conferred by Rule 48 (1) was exercisable either by the Central government or by any State Government but by S. C. 135 (E) the Central government directed that it shall not be exercised by any State Government or by any officer or authority authorised in that behalf by that State Government except with the previous approval of the central Government. ( 6 ) THE Chief Censor appointed by the central Government addressed to all editors two letters - one dated August 5, 1975 and another dated August 19,1975 intimating to them that no news, comments or reports should be submitted by them to the Censor for prior scrutiny and permission to print and publish them but that they themselves should scrutinise them in light of the guidelines issued by him and withhold publication of such news, comments or reports which were not in conformity with those guidelines. ( 7 ) ON October 12, 1975, Civil Liberties conference was held at Ahmedabad. Mr. M. C. Chagla, a former Chief Justice of bombay, inaugurated it and Mr. J. C. Shah, a former Chief Justice of India presided over it. The inaugural speech of Mr. M. C. Chagla was slightly abridgrd and published in "bhumiputra" in its issue dated October 26, 1975 under the heading darkness shall go and light shall come. Similarly, a factual report of the proceedings of the Conference, prepared by Dinesh Shukla - a teacher in Gujarat unversity - was also published in that issue of "bhumiputra". ( 8 ) ON November 10, 1975 respondent no. 1 issued notice to petitioner No. 1 calling upon him to show cause within ten days why all copies of the issue of "bhumiputra" dated October 26,1975 and the Yagna Mudrika Press where it was printed should not be forfeited to the government of India because by printing and publishing the aforesaid two reports he had committed breach of the statutory order. It is not in dispute that no prior written permission of the Censor was obtained by the petitioner for printing and publishing them. Petitioner No. 1, through his Advocate, replied to that notice on November 19, 1975. He not only showed cause on merits but challenged the jurisdiction of the Chief Censor to issue to him that notice. It is not in dispute that no prior written permission of the Censor was obtained by the petitioner for printing and publishing them. Petitioner No. 1, through his Advocate, replied to that notice on November 19, 1975. He not only showed cause on merits but challenged the jurisdiction of the Chief Censor to issue to him that notice. ( 9 ) ON December 30, 1975 respondent no. 1 served upon petitioner No. 2 notice to show cause why Yagna Mudrika Press should not be forfeited on account of the same reasons. Petitioner No. 2, through his Advocate, replied to that notice on january 18, 1976 wherein he took up the same stand which petitioner No. 1 had taken in his reply to the similar notice served upon him by respondent No. 1. ( 10 ) ON January 16,1976 respondent No. 1 made an order by which he declared that every copy of "bhumipulra" dated october 26, 1975 and the Yagna Mudrika press situate at Huzurat Paga, Baroda were on account of the reasons stated in his notice forfeited to the Government of India under Rule 48 (2 ). This is hereinafter referred to as the Impugned order. ( 11 ) THE petitioners in this petition challenged the validity both of the statutory Order and the Impugned Order. ( 12 ) MR. Daru who appears for the petitioners has raised the following four contentions in support of this petition. (1) The statutory order is ultra vires rule 48 (1) and Section 38. (2) In any case, the petitioners, by publishing the aforesaid two reports, did not contravene the Statutory Order. Therefore, the Chief Censor did not have jurisdiction to make the Impugned Order. (3) In view of two letters addressed by the Chief Censor to all editors on august 5, 1975 and August 19, 1975, petitioner No. 1 was not bound to submit to the Censor any material or report for prior scrutiny before printing or publishing it. (4) For the reasons stated in the petition, the Chief Censor was disqualified from sitting in judgment upon the conduct of the petitioners. ( 13 ) MR. Vakharia who appears for respondents No. 1 and 5 has raised a preliminary contention against the maintainability of this petition. (4) For the reasons stated in the petition, the Chief Censor was disqualified from sitting in judgment upon the conduct of the petitioners. ( 13 ) MR. Vakharia who appears for respondents No. 1 and 5 has raised a preliminary contention against the maintainability of this petition. According to him, the petition is not maintainable, firstly because the petitioners seek to enforce their fundamental rights under article 19 (l) (a) of the Contitution which remains suspended during the subsistence of the Proclamation of emergency by virtue of the provisions of Article 358 and secondly, because the right to move the Court for the enforcement of the fundamental rights guaranteed by Article 19 (l) (a) has been suspended by the Presidential Order dated 8th January 1976 issued under article 359. We first proceed to examine the preliminary contention raised by Mr. Vakharia. ( 14 ) MR. Vakharia has argued that what the petitioners seek to achieve by this petition is to enforce their fundamental rights guaranteed to them under Article 19 (1) (a ). We are unable to uphold this argument raised by Mr. Vakharia. The petitioners do not pray for the enforcement of their fundamental rights to freedom of speech and expression. What they seek to do is to challenge the legality of the Statutory Order, not on the ground that it violates their fundamental rights to freedom of speech and expression but, on the ground that it goes much beyound the terms of Rule 48 under which it has been made and that, therefore, it is ultra vires Rule 48. Secondly, they contend that the Statutory order violates the principle of the minimum necessary interference with the ordinary avocations of life incorporated in Section 38 and is therefore ultra vires section 38 also. The petitioners are entitled to tell this Court that no executive action, taken under a statutory rule, can be placed above that rule or above the act. In our opinion, the petitioners do not in any manner whatsoever seek to enforce their fundamental rights to freedom of speech and expression. Their attempt is confined only to the enforcement of legality. Merely because the enforcement of fundamental rights, guranteed by Article 19, has been suspended by the Presidential Order, it does not mean that no order, made in violation of the ordinary law in force, can be challenged in a Court of law. Their attempt is confined only to the enforcement of legality. Merely because the enforcement of fundamental rights, guranteed by Article 19, has been suspended by the Presidential Order, it does not mean that no order, made in violation of the ordinary law in force, can be challenged in a Court of law. To extend the suspension of the enforcement of a fundamental rights, guaranteed by article 19, to the suspension of all remedies under Article 226 against executive or administrative orders, made infringement of the ordinary law in force, is to usher in a rule of jungle instead of rule of law. Next, the Presidential Order must be srictly confined to what it expressly suspends and cannot be allowed, even by implication, to entrench upon other areas. In the matter of human right and statutory or constitutional remedies to enforce them, we cannot judicially go on expending the forbidden field and squeezing the open areas so as to net them in the forbidden field. Mere enforcement of a legality is very much different from the enforcement of a constitutionally guaranteed fundamnetal rights. If the latter has been suspended, it does not take within its sweep the former. The petitioners challenge to the validity of the Statutory Order and the impugned Order is de hors their fundamental rights and there is nothing in the Presidential Order to bar it. In other words, the argument which Mr. Vakharia has advanced means that a citizen has no remedy whatsoever against the Chief Censor irrspective of what he does. This argument is thoroughly misconceived and totally unsustainable. It deserves to be ex facie rejected. ( 15 ) IN Halsburys Laws of England, volume I, Fourth Edition, at page 5, this is what has been stated on The Principle of Legality. "the exercise of government authority directly affecting individual interests must rest on legitimate foundations. This argument is thoroughly misconceived and totally unsustainable. It deserves to be ex facie rejected. ( 15 ) IN Halsburys Laws of England, volume I, Fourth Edition, at page 5, this is what has been stated on The Principle of Legality. "the exercise of government authority directly affecting individual interests must rest on legitimate foundations. For example, powers exercised by the Crown, its Ministers and Central Government departments must be derived, directly or indirectly, from statute, common law or the royal prerogative; and the ambit of those powers is determinable by the courts save in so far as their jurisdiction has been excluded by unambiguous statutory general or inherent rule-making or regulatory power, except in relation to the internal functioning of the central administerative hierarchy, though ministerial announcements and departmental circulars intended to influence or direct the conduct of public affairs affecting individual interests are not uncommon. Nor, in general, can State necessity be relied upon to support the existence of a power or duty, or to justify deviations from lawful authority. " ( 16 ) IN State of Bihar v. Kameshwar prasad Verma, A. I. R. 1965 Supreme court 575, it has been laid down by the supreme Court that no member of the executive can interfere with the liberty of a subject except on condition that he can support the legality of his action before a Court of justice. In that case, a convict who had been undergoing imprisonment was released from custody on the ground of ill-health but was subsequently rearrested and detained in jail. The convict presented the petition for a Writ of Hebeas Corpus and the supreme Court held that the State had not shown under what authority of law he was rearrested and detained. Therefore, his detention was held to be illegal. The Supreme Court has in that decision approved the following principle laid down by Lord Atkin in Eshugbavi eleco v. Officer Administering government of Nigeria, A. I. R. 1931 p. C. 248 at page 252. "in accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive. "adverting to this principle, the Supreme court has observed as under:"it is the same jurisprudence which has been adopted in this country on the basis of which the Courts of this country exercise jurisdiction. " ( 17 ) IN State of Madhya Predesh and another v. Thakur Bharat Singh, A. I. R. 1967 Supreme Court 1170, the Supreme court was examining certain provisions of Madhya Predesh Public Security Act, 1959, in the context of the state of emergency declared on October 20, 1962 by the President under Article 352. The supreme Court has in that context observed that "all executive action which operates to the prejuduce of any person must have the authority of law to support it and the terms of Article 358 do not detract from the rule". In the case also, the enforcement of rights guaranteed by article 19 was suspended and yet the supreme Court observed that "article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or to take," but for the provision contained in Part III of the Constitution, that "article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others" and that "it merely provides that so long as the proclamation of emergency subsists, laws may be enacted and executive action may be taken in pursuance of lawful authority which, if the provisions of Article 19 were operative, would have been invalid. " ( 18 ) IN M/s Hochlief Gammon v. Slate of Orissa and Others, A. I. R. 1975 supreme Court 2226, the Supreme Court has observed that the Court have power to see that the Executive acts lawfully. ( 19 ) OUR attention has been invited to a few more decisions which according to Mr. Vakharia show the opposite trend. In Makhan Singh Tarsikkav. The Stale of Punjab, A. I. R. 1964 Supreme Court 381, the question of the effect which the proclamation of Emergency issued under article 352 produced on Article 19 arose. ( 19 ) OUR attention has been invited to a few more decisions which according to Mr. Vakharia show the opposite trend. In Makhan Singh Tarsikkav. The Stale of Punjab, A. I. R. 1964 Supreme Court 381, the question of the effect which the proclamation of Emergency issued under article 352 produced on Article 19 arose. The Supreme Court held that the suspension of Article 19 during the pendency of the Proclamation of emergency issued under Article 352 remove the fetters created on the legislative and executive powers by article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by Article 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter. As soon as the Proclamation ceases to operate, the legislative enactments passed and the executive actions taken during the courses of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under Article 19 because as soon as the emergency is lifted, article 19 which was suspended during the emergency is automatically revived and begins to operate. In other words, the Supreme Court held that during the period of suspension of Article 19 the legislative and executive action which contravenes Article 19 cannot be questioned. In that case, the detention of the petitioner under the Defence of india Act and the Rules made thereunder was under challenge. The Supreme Court held that the detention could be challenged on the ground of infrigement of the rights conferred by Part III of the constitution, except the rights specified in the residential Order. The Supreme court has in terms stated that the detenus could challenge the detention order on the ground that it was in violation of the mandatory provisions of the Defence of India Act that the right of the detenu to move for his release on such a ground could not be affected by the Presidential order. The Supreme Court further held that the detenu could move the Court for a writ of habeas corpus on the ground that his detention had been ordered mala fide because the exercise of a power mala fide is wholly outside the scope of the defence of India Act and could always be successfully challenged. The Supreme Court further held that the detenu could move the Court for a writ of habeas corpus on the ground that his detention had been ordered mala fide because the exercise of a power mala fide is wholly outside the scope of the defence of India Act and could always be successfully challenged. The Supreme court further held that a person aggrieved by the exercise of power under the defence of India Act could not get a mere declaration that the Act was invalid. This decision, instead of helping Mr. Vakharia to advance his argument against the maintainability of this petition, comes in his way. If the petitioners had challenged the validity of the Defence of India Act or the Rules made thereunder on the ground that they violated the petitioners fundamental rights under Article 19 (l) (a), the petitioners would have been out of Court on account of the subsistence of the Proclamation of Emergency and the Presidential Order suspending certain fundamental rights including Article 19 during the emergency. That is not what the petitioners seek to achieve by this petition. They do not challenge the Act or the Rules on the ground that they infringe Article 19 (l) (a) but they challenge the statutory order on the ground that it is ultra vires Rule 48 (1) under which it purports to have been made. Such a contention was allowed to be raised by the Supreme Court in the aforesaid decision though the challenge to the Act and the Rules on the ground of infringement of Article 19 was held to be barred. ( 20 ) THE next decision to which our attention has been invited is in Sangram singh v. Election Tribunal, Kotah and. Another, A. I. R. 1955 Supreme Court 425. The Supreme Court has observed in that case that the High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other Courts and tribunals and that they alone can pronounce with authority and finality on what is legal and what is not. . Another, A. I. R. 1955 Supreme Court 425. The Supreme Court has observed in that case that the High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other Courts and tribunals and that they alone can pronounce with authority and finality on what is legal and what is not. . ( 21 ) IN Rasulbhai Muradbhai Sindha v. Shyamal Ghosh, District Magistrate, surat and Others, 16 Gujarat Law reporter 642 a Division Bench of this court has held that in spite of the presidential Order suspending the enforcement of the fundamental rights guaranteed by Articles 14, 21 and 22 (5), a limited inquiry is open to the Court and without reporting to any of the fundamental rights which are specified in the Presidential Order, the Court can consider the granting of relief to the petitioner, inter alia, on the ground that the order by which the petitioner is aggrieved has been made mala fide or that it has been made in infringement of the statute under which it purports to have been made. It has been further held in that decision that except the challenge under the suspended Article of the Constitution all other challenges are available to the detenu in spite of the presidential Order. ( 22 ) IN Smt. Fatmabai Abdulkadar w/o abdul Kadar Abdul Raheman v. Shyamal Ghosh and Others, 16 Gujarat law Reporter 546 the same Division bench which decided Rasulbhais case (supra) was called upon to reconsider its decision in that case on light of the judgment given by a Division Bench of the Kerala High Court on the point. This high Court, after having considered the judgment of the Kerala High Court in o. P. No. 4357 of 1974 no reasons to reconsider its decision in Abdulbhais case (supra) and confirmed its vice that in spite of the suspension of the enforcement of rights guaranteed by articles 14, 21 and 22 (5) it was open to the detenu to challenge the validity or his detention order on grounds other than those which attracted Articles 14, 21 and 22 (5 ). ( 23 ) THESE decisions leave no doubt in our mind that during the period of suspension of the enforcement of fundamental rights guaranteed, inter alia, by Article 19 by virtue of the Presidential order it is open to any person who is injured by an executive action to challenge the validity of that action on all grounds except those which attract the enforcement of rights guaranteed by the suspended Articles. ( 24 ) WE have already stated that in the instant case the petitioners do not seek to enforce their fundamental rights under article 19 (l) (a) which has been suspended by the Presidential Order but their contention is that the Statutory order exceeds the scope of Rule 48 (1) under which it has been made - more so when Rule 48 (1) is read with Section 3 (1) and Section 38 of the Act. They merely challenge the legality of the statutory order simpliciter and do nothing more which would attract the enforcement of their rights otherwise guaranteed by the suspended Article. ( 25 ) IT is necessary to remember that it is natural for every citizen to speak, talk or express himself. In other words, his right to speak and express himself is born with him irrespective of whether he is a citizen belonging to a democratic country or to a totalitarian State. We are not aware of any society whether democratic, oilgrachic, aristocratic, monarchical or totalitarian where a citizen or a subject cannot speak and express himself. The only question which has engaged the attention of all societies is how much a citizen or a subject shall not be allowed to speak and on what subjects. In other words, it is impossible for us to conceive that there can be a society of dumbs amd mutes. Therefore, if it is inherent for a citizen or a subject to speak and express himself in any society to which he belongs, all that a democratic country does is to guarantee to him and protect his right of free speech and expression by its Constitution or by its fundamental law. A Constitution or a fundamental law does not create such right. It merely recognizes, guarantees and protects it. A Constitution or a fundamental law does not create such right. It merely recognizes, guarantees and protects it. When this constitutional recognition, guarantee or protection is suspended for the time being by a presidential Order, it only means that if the State makes a law placing restriction on or curtailing his right of speech and expression, he cannot challenge that law on the ground that it infringes the constitutional guarantee or protection. In other words, the only difference which the suspension of the enforcement of constitutional guarantee or protection makes is that whereas the State could not earlier make a law in violation of that constitutional guarantee or protection, it could make such a Jaw during the period of suspension of that constitutional guarantee or protection and, that any such law would not be open to such a constitutional challenge. However, if it is natural for and inherent in a citizen or a subject to speak and express himself arid if it is open to the state to make any law curtailing his right to speech and expression, it is open to a citizen to complain that the action taken against him for the expression of his views is not in conformity with the law which the State has made and by which he has been subjected to certain restrictions. In the instant case, all that the petitioners complain is that though the constitutional guarantee of freedom of speech and expression is not for the time being available to them the restrictions to which they have been subjected by the statutory order are not in conformity with the law (Defence of India Act and the Rules made thereunder) by which restrictions have been placed upon their natural and inherent right of speech and expression. The real question which, therefore, arise in such a case are these: What is the extent of curtailment of or restrictions on the natural and inherent right of speech and expression imposed by law, that is to say, the Defence of India Act and the rules made thereunder? Next, has the action taken or the order made under the said law been in conformity with the law or whether it goes beyond the scope and ambit of such a law? Next, has the action taken or the order made under the said law been in conformity with the law or whether it goes beyond the scope and ambit of such a law? It is wrong to think that once the legislature has made the law which places restrictions on or curtails the inherent and natural right of a citizen to speak and express himself it is open to the executive to do anything which it likes irrespective of what the law empowers it to do and how much forbidden area it craves out. To accede to the argument raised by Mr. Vakharia is to say that irrespective of what the defence of India Act and the Rules mad? thereunder provide it is open to the executive to make a general order requiring the people of this country to be mute and dumb during the period of emergency. ( 26 ) IN this connection it is apposite to make a brief reference to the decision of the High Court at Bombay in Binod rao v. Minochar Rustom Masani, original Side Appeal No. 204 of 1975 decided by Mr. Justice Madon and Mr. Justice Kania on February 10, 1976. In that case a preliminary objection to the maintainability of the petition was raised. That petition was filed against the order made by the Censor disallowing 11 articles from being published in the monthly journal "freedom First" edited by the petitioner therein. In that decision, relying upon The Common Law of england, Third Edition, Vol. I, pages 3 and 4, it has been observed by the High court at Bombay that every citizen has full freedom to speak and to write on such matters provided that he keeps clear of treason, sedition, blasphemy or decency. Subject to this qualification he may discuss fully and fearlessly every matter of public concern in the State and may comment on any proposed legislation and on the public conduct of any public man. Next, he may criticize freely any published book, or poem, any play, picture or statue publicly performed or exhibited or any public concert or entertainment. It has been further observed that a subject may say or do what he pleases provided that he does not transgress the substantive law or infringe the legal lights of others. This is the principle from which implications as to the liberties of a subject are drawn. It has been further observed that a subject may say or do what he pleases provided that he does not transgress the substantive law or infringe the legal lights of others. This is the principle from which implications as to the liberties of a subject are drawn. Whereas public authorities may do nothing except what they are authorised to do by some rule of commen law or statute, a subject is entitled to say or do what he pleases subject to the qualification stated above. Relying upon halsburys Laws of England, page 197, third Edition, it has been further observed by the High Court at Bombay in that decision that the right to freedom of speech or discussion means that any person may write or say what he pleases so long as he does not infringe the law relating to libel or slander, or to blasphemous, obscene or seditious words or writings and that this right is clearly connected with and covers the right of freedom of conscience. In other words, law is the sole source of governmental powers. We would like to quote the following observations from the said judgment of the High Court at Bombay with which we fully agree. "in spite of the Proclamation of emergency and the Presidential Orders a citizen is free to say, write and act as he likes so long as he does not transgress the law and so long as what he does is not prohibited or regulated by law. . . . . . . . . If, therefore, even after the proclamations of Emergency and the issuance of the Presidential Orders under article 359 (1) of the Constitution a citizen is prejudiced by an executive action, he can challenge it on the ground that it lacked the authority of law, and if the authority taking such action were unable to support it in law, the Court would strike down that action. " ( 27 ) IN this context, it is necessary to refer to Clause (1a) of Article 359 of the Constitution. " ( 27 ) IN this context, it is necessary to refer to Clause (1a) of Article 359 of the Constitution. It reads as under :-"while an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that part conferring those rights shall restrict the power of the State as defined in the said part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. "does the expression "to take any executive action" used in clause (1a) mean any executive action irrespective of whether it has the authority of law or it does not have any ? If the expression "to take any executive action" means any executive action de hors law, the preliminary objection raised by Mr. Vakharia will have to be upheld. However, in our opinion, "to take any executive action" means any executive action which is supported by law (not necessarily consistent or in conformity with the suspended Articles of the Constitution ). It cannot mean any executive action de hors the law or any executive action which cannot be supported by any provision of law. To accede to the view which Mr. Vakharia has canvassed for is to place the executive action not only above the ordinary law of the land but to allow it to derogate from the law. Though, therefore, "any executive action" may not be challengeable during the subsistence of emergencies on the ground of infringement or violation of a suspended constitutional provision, it is certainly challengeable on the ground that it does not have any authority of law and is, therefore, arbitrary and capricious or that it has been taken in excess of law under which it purports to have been taken. The view which we are expressing on the aforesaid expression used in clause (1a) of Article 359 is the view which the High Court at Bombay has also taken in the aforesaid unreported decision. The view which we are expressing on the aforesaid expression used in clause (1a) of Article 359 is the view which the High Court at Bombay has also taken in the aforesaid unreported decision. ( 28 ) WE are, therefore, of the opinion that the preliminary contention raised by mr. Vakharia is thoroughly misconceived and totally unsustainable. It is, therefore, rejected. ( 29 ) WE now turn to examine the first contention which Mr. Daru has raised before us. Mr. Daru as well as Mr. Vakharia have asked us, while examining the validity of the Statutory Order, to bear in mind the principles of purposive interpretation as distinguished from literal interpretation. In other words, we have been asked to bear in mind the purpose for which the Statutory Order has been made and to interpret it in that light. Mr. Vakharia has asked us to bear in mind the prevailing social and political conditions and the mischief which the statutory Order seeks to remedy. With that object in view he has invited our attention to certain decisions to which we are shortly referring. He has particularly asked us to bear in mind the proclamation of Emergency, its non-justiciability and the Preamble to the act. We are aware of the fact that the proclamation of Emergency has been rendered non-justiciable. Therefore, we must accept what is stated in the proclamation of Emergency. The second proclamation of Emergency issued by the president on 25th June 1975 states "that a grave emergency exists whereby the security of India is threatened by internal disturbance". We must, therefore, accept that there is internal disturbance in the country which has led to a grave emergency which in its turn threatens the security of India. We cannot assume to be true more than what the proclamation of Emergency has stated. We have also to bear in mind that the statutory Order which has been impugned by the petitioners in this petition is a preventive measure and not a punitive measure and that it is founded on apprehended danger in respect of which the Government acts on suspicion and information. It is true that so far as the statutory Order is concerned, it does not totally prohibit the dissemination of information and expression of views. It is true that so far as the statutory Order is concerned, it does not totally prohibit the dissemination of information and expression of views. Though it merely channelises all informations, views, comments and reports through the official channel, the amplitude of power which has been conferred upon the Censor clearly enables him to cut out or prohibit the publication of any news, comment, criticism or report. ( 30 ) IN Virendra v. The Stale of Punjab and A nother. A. I. R. 1957 Supreme Court 896 Sections 2 and 3 of the Punjab Special powers (Press) Act, 1956 were challenged. The problem which the government of Punjab tried to solve with the aid of that act was the problem of restoring communal harmony. Communal disturbances had affected or were likely to affect public order in the State of punjab. Section 2 of the Punjab Act, therefore, provided that if the State government or any authority authorised in that behalf was satisfied that it was necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order, it could prohibit the printing or publication in any document or any class of documents of any matter relating to a particular subject or class of subjects for a specified period or in a particular issue or issue of a newspaper or periodical by an order in writing addressed to a printer, publisher or editor. The proviso to sub-section (1) of Section 2 required that no such order made under sub-section (1) of Section 2 would remain in force for more than two months from the making thereof. There was a further proviso to sub-section (1) which enabled the person against whom such an order was made to make a representation to the State Government which had the power to modify, confirm or rescind the order. Sub-section (1) of Section 3 provided that if the State Government or any authority authorised by it in that behalf was satisfied that it was necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order to prohibit the bringing into Punjab of any newspaper, periodical, leaflet or other publication, it could do so. The aforesaid provisions of the Punhab Act were challenged on (he ground that they violated Article 19 of the Constitution. The Supreme Court has in that decision observed that when the legislature enacts law for maintaining public order it has to ask itself the question : Who will be the appropriate authority to determine at any given point of time as to whether the prevailing circumstances require some restriction to be placed on the right to freedom of speech and expression and the right carry on any occupation, trade or business and to what extent ? It has further observed that as the State government was charged with the preservation of law and order in the State, as it alone was in possession of all material facts, it would be the best authority to investigate the circumstances and assess the urgency of the situation that might arise and to make up its mind whether any, and if so, what, anticipatory action must be taken for the prevention of the threatened or anticipated breach of the peace. It has further observed that the court is wholly unsuited to gauge the seriousness of the situation because it cannot be in possession of materials which are available only to the executive governement. Therefore, according to the supreme Court, the determination of the time when and the extent to which restrictions should be imposed on the press must of necessity be left to the judgment and discretion of the State government and that is exactly what the legislature did by passing that statute. ( 31 ) MR. Vakharia has emphasised the fact that the Court is unsuited to determine the situation which had led to the making of the statutory order and that, therefore, the Court should not interfere on the analogy of the decision of the Supreme Court in Virendras case (supra ). The principle laid down by the supreme Court in this decision cannot be applied to the present case for more than one reason. Firstly, sub-section (1) of Section 2 empowered the State government to make an order addressed to a particular printer, editor or publisher and did not empower it to make a general order addressed to all printers, publishers and editors. Firstly, sub-section (1) of Section 2 empowered the State government to make an order addressed to a particular printer, editor or publisher and did not empower it to make a general order addressed to all printers, publishers and editors. In order to put down the disturbances and restore normalcy if an order is addressed to a particular printer, editor or publisher to desist and forbear from printing anything for a limited period of time or from publishing anything which would have the potentiality of disturbing communal harmony, it is not equivalent to making a general order addressed to all printers, publishers and editors to desist and forbear from writing anything whatsoever on certain policies of the government particularly when such an order does not specify the time during which it shall remain in force. Secondly, the impugned provisions of the Punjab act were challenged on the ground that they violated Article 19 of the constitution. We are not concerned in the instant case with the enforcement of the right guaranteed by Article 19 (l) (a ). In the instant case, the Parliament by enacting Section 3 of the Act and the rule-making authority by making Rule 48 have decided what is required to be done in order to put down the internal disturbances which have led to the grave emergency. This Court is not called upon to examine the validity of Section 3 or rule 48. If such a challenge was raised before us, it could have been with some justification said that it was the executive government which was possessed of all the facts for determining what was required to be done to meet the internal disturbance and the grave emergency and that the Court was unsuited to examine the facts and materials in that behalf. The question which has been raised before us lies in a narrow compass. The question which has been raised before us lies in a narrow compass. The petitioners tell this Court that the parliament by enacting Section 3 of the act and the Central Government by making Rule 48 have already determined what is necessary to meet the internal disturbances and the grave emergency in this country and then ask to examine whether the general action taken by the central Government by issuing the statutory Order under the authority of rule 48 conforms to the provisions of rule 48 and Section 3 or it goes much beyond the terms of that Rule and that section and tries to overreach them. They ask us to strike it down or a part thereof if we come to the conclusion that the statutory Order overreaches Rule 48 and section 3 read with Section 38 and is de hors them. In order to determine this question we are not required to go into any facts and materials which are belter known to the Central Government. The inquiry which we are required to make is a very limited inquiry. Has the Central government by issuing the Statutory order exceeded the power conferred upon it by Rule 48 and Section 3 ? The real distinction of this decision lies in the fact that it was addressed to an individual publisher and the Statutory Order apprised him of the agitation in regard to which it was addressed to him. The guidelines were clear in the order itself. Therefore, it was not a case of a delegate exceeding the power conferred upon him and undermining the purposes of the Act. ( 32 ) THE next decision to which our attention has been invited is in Babulal parate v. The Stale of Maharashtra, A. I. R. 1961 Supreme Court 884. In that case, the Supreme Court was called upon to determine the validity of Section 144 of the Criminal Procedure Code in the context of the provisions of Article 19. The petitioner in that case presented a petition to the Supreme Court under article 32 of the Constitution for an appropriate writ to the respondents directing them not to enforce the provisions of Section 144 of the Criminal procedure Code and to forbid respondent no. The petitioner in that case presented a petition to the Supreme Court under article 32 of the Constitution for an appropriate writ to the respondents directing them not to enforce the provisions of Section 144 of the Criminal procedure Code and to forbid respondent no. 4 from proceeding further with the prosecution of the petitioner for offences under Sections 143 and 188 of the Indian penal Code read with Section 117 thereof and to quash the proceeding against the petitioner before respondent No, 4. It was contended that the order which was promulgated by the District Magistrate under Section 144 of the Criminal procedure Code was an encroachment on the fundamental rights of a citizen to freedom of speech and expression and to assemble peaceably and without arms, guaranteed under Article 19 (1 ) (a) and (b) of the Constitution. While upholding the validity of Section 144 of the Criminal procedure Code the Supreme Court has observed that wide though the power appears to be, it can be exercised only in an emergency and for the purpose of preventing obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety, or a disturbance of the public tranquillity or a riot or an affray. According to it, these factors condition the exercise of the power and it would consequently be wrong to regard that power as being unlimited or untrammelled. Next, it should be borne in mind that no one has a right to cause obstruction, annoyance or injury to anyone. The Supreme Court has further observed that since in a case under Section 144 the judgment is going to be of a Magistrate as to whether in the particular circumstances of a case an order should be made or not, the Court is entitled to assume that the power would be exercised legitimately and honestly. According to the Supreme Court, therefore, the section could not be struck down on the ground that the Magistrate might possibly abuse his powers. According to the Supreme Court, therefore, the section could not be struck down on the ground that the Magistrate might possibly abuse his powers. The supreme Court has further observed that the maintenance of law and order is the duty and function of the executive department of the State and, therefore, it is inevitable that the question of formation of the opinion as to whether there is an emergency or not must necessarily rest, in the first instance, with those persons through whom the executive exercises its functions and discharges its duties. According to it, it would be impracticable and even impossible to expect the State government itself to exercise those duties and functions in each and every case. The Supreme Court while upholding the validity of Section 144 also took into account that the satisfaction of the magistrate as to the necessity of promulgating an order under Section 144 was not made entirely subjective by that section. The principle laid down in this case also cannot be applied to the instant case because the Chief Censor or the censor who exercises the power under the statutory order is neither a Magistrate nor a judicial authority such as one contemplated by Section 144 of the criminal Procedure Code. Secondly, no assumption can be made that the powers conferred upon him would be exercised legitimately and honestly and that he would not abuse them. Thirdly, in the instant case, the situation is altogether different from one which obtained in babulal Parales case (supra ). Here the parliament by enacting Section 3 has clothed the Central Government with certain powers and the Central government has determined, within the ambit of Section 3, what powers it should have. They are enunciated in Rule 48 in so far as the controversy in this petition is concerned. The question is whether the statutory order generally addressed to all printers, editors and publishers exceeds the authority of Rule 48 with which the Central Government has clothed itself. While examining this challenge we cannot assume that irrespective of what the Statutory Order provides, it is in conformity with Rule 48. To make such an assumption is to close down our eyes and to give a carte blanche to the Central Government to do anything it likes after having made rule 48. While examining this challenge we cannot assume that irrespective of what the Statutory Order provides, it is in conformity with Rule 48. To make such an assumption is to close down our eyes and to give a carte blanche to the Central Government to do anything it likes after having made rule 48. It is true that an order which is made under Section 144, Criminal procedure Code is based upon an apprehended danger and aims at taking an anticipatory section and that the nexus of such an order has to be judged in light of the materials placed on record. But an order made under Section 144, criminal Procedure Code is inherently different from the general order made under Rule 48 of the statutory order with which we are concerned. When an order is made under Section 144, Criminal procedure Code it intends to meet a particular situation and its duration is generally specified. A Statutory Ordes generally addressed to all printers, publishers and editors made under Rule 48, with undefined duration cannot be equated with an order made under Section 144, Criminal Procedure Code. ( 33 ) IN Madhu Limaye and Another v. Sub-Divisional Magistrate, Monghyr, a. I. R. 1971 Supreme Court 2486 the supreme Court has observed that where preventive measures are taken to put down crimes and disturbances of public tranquillity and breaches of peace, there is no need to prove overt acts although if overt acts have taken place they will have to be considered. When the government takes a preventive measure it is not based on overt acts but on the potential danger to be averted. Such provisions are essentially conceived in the interest of public order and in the interest of the general public. If prevention of crimes and breaches of peace and disturbance of public tranquillity are directed to the maintenance of the even tempo of community life, there can be no doubt that they are in the interest of public order. The test which Supreme court has laid down will apply with full force and vigour to a case where vires of Rule 48 or Section 3 are challenged but not a case where the Parliament by enacting Section 3 and the Central government by making Rule 48 have determined what is necessary to be done for meeting the internal disturbances and grave emergency. Where the validity of an executive section is challenged on the ground that it does not conform to what the Parliament has laid down or the rule-making authority has done the observations made in the aforesaid case cannot be appropriately applied. It has been further observed by the Supreme court in that decision that where the liberty of a citizen is involved and where he is being proceeded against on information and suspicion it is necessary to put a strict construction upon the powers of the executive authority. ( 34 ) IN The King v. Halliday, 1975 appeal Cases 260 the question which arose was whether Regulation 14b made under the Defence of the Realm (Consolidation) Regulations, 1914 was authorised by the Act or was ultra vires. It has been observed in that case that the statute authorised provisions of two kinds - for prevention and for punishment. Any prenventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment and are taken by way of precaution to prevent mischief to the State. Therefore, anyone who infringes such regulations will become the proper subject of punishment. It has been further observed that it may be necessary in a lime of great public danger to entrust great powers to His Majesty in Council and that Parliament may do so feeling certain that such powers will be reasonably exercised. The restraint imposed may be a necessary measure of precaution and in the interests of the whole nation it may be regarded as expedient that such an order should be made in suitable cases. Lord Atkinson has in this behalf observed as follows:"however precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement. "proceedings further the learned Law lord stated as follows :"preventive justice, as it is styled, which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done, is no new thing in the laws of England. "it has been further observed that where preventive justice is put in force some suffering and inconvenience may be caused to the suspected person and that it is inevitable. The suffering which is inflicted in such a case is for something much more important than his liberty or convenience, namely, for securing the public safety and defence of the realm. It must not be assumed that the powers conferred upon the Executive by the statute will be abused. In the instant case, what is necessary for securing public safety and public order which are more important than the liberty or convenience of an individual has already been decided by the Parliament by enacting Section 3 and by the Central Government by making Rule 48. The question which has, therefore, arisen is whether the Statutory order which the Central Government has made under the authority of Rule 48 amounts to abuse of power conferred upon it by Rule 48 and exceeds its term. ( 35 ) IN Kameshwar Prasad and Others v. Slate of Bihar and Another, A. I. R. 1962 Supreme Court 1166 one of the question which the Supreme Court was examining was whether the right to make a demonstration is covered by either of or both the freedoms guaranteed by article 19 (l) (a) and 19 (l) (b ). In that context, the Supreme Court has observed that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is a communication of ones ideas to others to whom it is intended to be conveyed. It is, therefore, a form of speech or of expression because speech need not be vocal since signs made by a dumb person would also be a form of speech. While examining the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches made therein the Supreme court has observed that a demonstration might take the form of an assembly and even then the intention is to convey to the person or the authority to whom the communication is intended the feelings of the citizens. It is needless to add, the supreme Court has further observed, that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration. Such a demonstration would not be protected by article 19 (l) (a) or (b ). However, it can equally be peaceful and orderly such as happens when the members of a group merely wear some badge drawing attention to their grievances. Bearing in mind this principle laid down by the supreme Court we have to find out the exact scope of the statutory order in the context of Rule 48 and Section 3. ( 36 ) IN Deputy Commercial Tax officer, Park Town Division, Madras and Another v. Sha Sukraj Peerajee, A. I. R. 1968 Supreme Court 67 the principle which the Supreme Court has laid down is that no rule can be made which enlarge the scope of the Act. Whenever in pursuance thereof a delegate makes such a rule it exceeds the limits of its delegation. ( 37 ) IN Himat Lal K. Shah v. Commissioner of Police, Ahmedabad and Another, A. I. R. 1973 Supreme Court 87 the question of the validity of Rules 13, 14 and 15 of the Rules framed by the Commissioner of Police under Section 33 of the Bombay Police Act arose. In the context of the fundamental rights to hold a public meeting in a public street the Supreme Court has observed that Rule 7, which gave an unguided discretion, practically dependent upon the subjective whim of an authority to grant or refuse permission to hold a public meeting on public street, cannot be held to be valid. Thereafter, the Supreme Court has cited with approval the following observations made by the Supreme Court of United states in National Association for the advancement of Colored People v. Button, (1963) 871 U. S. 415 at p. 438. "broad prophylactic rules in the area of free expression and assembly are suspect. Precision of regulation must be the touchstone in an area so closely touching our precious freedoms. ". ( 38 ) IN Saraswali Industrial Syndicate ltd. "broad prophylactic rules in the area of free expression and assembly are suspect. Precision of regulation must be the touchstone in an area so closely touching our precious freedoms. ". ( 38 ) IN Saraswali Industrial Syndicate ltd. v. Union of India, A. I. R. 1975 supreme Court 460 the Supreme Court has observed that there must be a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power. ( 39 ) IN Ram Bahadur Rai v. The State of Bihar and Others, A. I. R. 1975 supreme Court 223 the Supreme Court was examining the grounds specified in the order of detention in the context of sections 3 and 8 of the Maintenance of internal Security Act. The Supreme Court has observed that an order of detention must answer the test of nexus between the acts of the detenu on which the order of detention has been founded and the purpose of detention. The Supreme Court has further observed that peaceful protests and the voicing of a contrary opinion are powerful wholesome weapons in the democratic repertoire. The right to repine can be taken away only in the interest of public order. ( 40 ) IN B. Banerjee v. Smt. Anita Pan, a. I. R. 1975 Supreme Court 1146 while examining the constitutional challenge to certain provisions of the West Bengal premises Tenancy Act, 1956 the Supreme court has obseved that if reasonable interpretation can avoid invalidation, it is surely preferable and that in such a case humanist considerations, public policy and statutory purposes may provide guidelines of construction within reasonable limits. It is, therefore, clear that such considerations will provide guidelines for construction of a statute or an order if they lead to the avoidance of its invalidation. . ( 41 ) IN Attorney-General for Canada and Another v. Hallet and Carey Ld and another, 1952 Appeal Cases 427 the judicial Committee of the Privy Council was concerned with the examination of the National Emergency Transitional powers Act, 1945 of Canada. . ( 41 ) IN Attorney-General for Canada and Another v. Hallet and Carey Ld and another, 1952 Appeal Cases 427 the judicial Committee of the Privy Council was concerned with the examination of the National Emergency Transitional powers Act, 1945 of Canada. Lord redcliffe speaking for the Committee has observed that even where Parliament has chosen to say explicitly that an executive officer shall do whatever things he may deem necessary or advisable, it does not allow him to do whatever he may feel inclined, for what he does must be capable of being related to one of the prescribed purposes, and the Court is entitled to read the statute in this way. It is, therefore, clear that even where an executive officer has been empowered to do anything that he likes, it must be relat. able to the purpose or purposes for which he has been authorised. This view was taken in the context of Section 2 (1) of the said canadian Act which empowered the governer-General in Council to do such things and to make such orders and regulations as he might, by reason of the continued existence of the national emergency which had arisen out of the war against Germany and Japan, deem necessary or advisable for the purpose of maintaining, controlling and regulating supplies and services, prices, transportation, use and occupation of property, rentals, employment, salaries and wages to ensure economic stability and an orderly transition to conditions of peace. ( 42 ) IN Commissioners of Customs and excise v. Cure and Deeley Ltd. , (1961) 3 all England Law Reports 641 the Queens bench Division of the High Court of england has referred to the aforesaid decision of the Judicial Committee of the privy Council and observed that strict construction must be applied to a statute encroaching on the rights of the subject. Following the principle laid down in the aforesaid case it has been further observed that the paramount rule remains that every statute is to be expounded according to its manifest or expressed intention. Following the principle laid down in the aforesaid case it has been further observed that the paramount rule remains that every statute is to be expounded according to its manifest or expressed intention. It has next been observed in that decision that a court is bound before reaching a decision on the question whether a regulation is inlra vires to examine the nature, objects and scheme of the piece of legislation as a whole, and in the light of that examination to jnsider exactly what is the area over which powers are given by the section under which the competent authority is purporting to act. ( 43 ) IN Utah Construction and engineering Pvt. Ltd. and Another v. Janos Pataky, 1966 Appeal Cases 629 the Privy Council has observed that the power conferred upon an executive government or officer must be related to the means for achieving an end and not to the creation of the end itself. Further, it has been observed that"statutory rules or orders must give effect to the Act and cannot enlarge the scope of the Act. The Authority cannot in making rules or orders under the Act enlarge the scope of the Act or its general operation or widen the purposes of the act. " ( 44 ) IN Padfield and Others v. Minister of Agriculture, Fisheries and Food and others, (1968) 2 Appeal Cases 997 which is a decision of the House of Lords it has been observed by Lord Reid that when parliament confers discretion upon the minister with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the act must be determined by construing the Act as a whole and that construction is always a matter of law for the court. The learned Law Lord has further observed that if it is the Ministers duty not to act so as to frustrate the policy and objects of the Act and if it were to appear from all the circumstances of the case that that has been the effect of the Ministers refusal, then the Court must be entitled to act. The following passage from the earlier decision of the house of Lords in Julius v. "bishop of oxford, (1880) 5 Appeal Cases 21a has been cited heroin with approval. The following passage from the earlier decision of the house of Lords in Julius v. "bishop of oxford, (1880) 5 Appeal Cases 21a has been cited heroin with approval. "but there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person on whom the power is reposed, to exercise that power when called upon to do so. "lord Cairns L. C. observed as above in Juliuss case while construing the expression "it shall be lawful". It is not necessary to quote anything more from the speeches of other Law Lords delivered in that case. ( 45 ) IN light of the principles laid down in these decisions, we proceed to examine the first contention raised by Mr. Daru. Section 3 of the Act is the source of power. It inter alia confers upon the central Government rule-making power. Sub-Section (1) of Section 3 confers upon the Central Government such power only for six specified purposes or for any of them. They are as follows:- (I) The defence of India and civil defence, (ii) internal security, (iii) the public safety, (iv) the maintenance of public order, (v) the efficient conduct of military operations and (vi) the maintenance of supplies and services essential to the life of the community. The long title to the Act states that it has been enacted "to ensure the public safety and interest, the defence of India and civil defence, the internal security and for trial of certain offences and for matters connected therewith". Sub-Section (2) provides for specified matters in respect of which, without prejudice to the generality of the powers conferred by sub-section (1), rules can be made. Clause 4 (e) inter alia provides that the rules may be made for"preventing or prohibiting anything likely. . . to prejudice. . . internal security including. . . acts, publications or communications prejudicial to. . . internal security. Clause 4 (e) inter alia provides that the rules may be made for"preventing or prohibiting anything likely. . . to prejudice. . . internal security including. . . acts, publications or communications prejudicial to. . . internal security. " Clause 7 (a) of sub-section (2) empowers the Central Government to make rules for "prohibiting the printing or publishing of any newspaper, news-sheet, book or other document containing matters prejudicial to the defence of India and civil defence, internal security, the public safety, the maintenance of public order, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community". Sub-clauses (b) and (c) of clause (7) deal with the question of demanding security from any press and its forfeiture under the circumstances specified therein. We shall refer to them later. Sub-clause (d) empowers the Central Government to make rules for closing down any press or premises used for the purposes specified in that sub-clause. Sub-section (3) (ii) lays down that rules made under sub-section (1) may inter alia "provide that any contravention of, or any attempt to contravene, or any abetment of, or any attempt to abet, the contravention of any of the provisions of the rules or any order issued under any such provision, shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both" and may further "provide for the seizure, detention and forfeiture of any property in respect of such contravention, attempt or abetment as is referred to in clause (ii) has been. committed and for the adjudication of such forfeiture whether by a Court or by any other authority" [clause (iii) of sub-section (3) ]. Section 38 provides that ordinary avocations of life shall be interfered with as little as possible. It reads as under:"any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence and the internal security. "two incontrovertible propositions which emerge from a resume of these provisions are as follows. Any rules which the Central Government may make shall be made only for the six specified purposes or any of them. "two incontrovertible propositions which emerge from a resume of these provisions are as follows. Any rules which the Central Government may make shall be made only for the six specified purposes or any of them. Secondly, any action taken by any authority or person in pursuance of the Act shall cause the minimum necessary interference "with the ordinary avocations of life and the enjoyment of property" only for "the purpose of ensuring the public safety and interest and the defence of India and civil defence and the internal security. " ( 46 ) IT is necessary to note that sub-clauses (a), (b), (c) amd (d) of clause (7) of sub-section (2) of Section 3 provide for different stages of varying importance. Sub-section (a) provides for prohibition of the printing or publication inter alia of any newspaper or news-sheet answering the description stated therein. Sub-clause (b) provides for the action which may be taken against an erring printer or publisher. Security can be demanded from such a printer or publisher and the copies inter alia of any newspaper or news-sheet as have offended the law can be forfeited. Sub-clause (c) provides for a higher action against such a printer or publisher if the penalty, imposed upon him in pursuance of sub-clause (b) and rules made thereunder, has not proved effective and if he continues to err. The security, furnished by him, can in such a case be forfeited. If the forfeiture of the security does not bring him round and if he does on erring, he can be subjected to a still higher penalty in pursuance of sub-section (d) and the press or the premises where the offensive newspaper or news-sheet is printed or published can be closed down. ( 47 ) BEFORE we part with the act, we would like to make a brief reference to sections 34 and 39 of the Act. Section 34 (1) inter alia empowers the Central government to direct, by order, "that any power or duty which by this Act or by any rule made under this Act is conferred or imposed upon the Central Government shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged also by any officer or authority subordinate to the Central government or. . . by anyother authority". . . by anyother authority". It is in exercise of this power that the power exercisable under the statutory order has been delegated by the Central government to the Chief Censor. Section 39 firstly bars the jurisdiction of the Court to inquire into the exercise of any power conferred by or under this Act and secondly raises the presumption that any order purporting to have been made or signed by any authority "in exercise of any power conferred by or under this act" shall be presumed to have been made or signed by such authority. No contentions have been raised before us on the basis of Sections 34 amd 39. We have made a brief reference to them only with the object of completing the examination of the scheme of the Act in so far as it is material for the purpose of this petition. ( 48 ) WE now proceed to examine the scheme of the Defence and Internal security of India Rules, 1971. The statutory Order has been made under rule 48 which inter alia provides as under :-" (1) The Central Government or the state Government may for the purpose of securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, by order addressed to a printer, publisher or editor, or to printers, publishers and editors generally (A) require that all matter, or any matter relating to a particular subject or class of subjects, shall, before being published in any document or class of documents, be submitted for scrutiny to any authority specified in the order; ( 49 ) NOW vires of Rule 48 is not under challenge in this petition. Sub-rule (1) of Rule 48 clearly lays down that an order can be made thereunder for the following purposes or any of them. (1) To secure defence of India and civil defence. (2) To secure public safety. (3) To maintain public order, and (4) To maintain efficient conduct of military operations. In these four purposes, we have to read internal security as required by Rule 1a. (1) To secure defence of India and civil defence. (2) To secure public safety. (3) To maintain public order, and (4) To maintain efficient conduct of military operations. In these four purposes, we have to read internal security as required by Rule 1a. When the language of Rule 48 read with rule 1a is compared with the language of sub-section (1) of Section 3, we find that Rule 48 does not provide for making any order in the matter of maintenance of supplies and services essential to the life of the community. Therefore, Rule 48 does not try to effectuate all the purposes specified in sub-section (1) of section 3 of the Act. Its coverage extends to all statutory purposes except one. It is open to the rule-making authority to make separate rules for effectuating different objects which the Act specified. ( 50 ) NOW, under Rule 48, the Central government has the power to make an order addressed individually to a printer, publisher or editor or to printers, publishers and editors generally. The statutory Order has been made by the central Government and addressed to printers, publishers and editors generally. It cannot be gainsaid that such an order, whether individual or general, can require a printer, publisher or editor to submit for security to any specified aythority "all matters, or any matter relating to a particular subject or class of subjects". If Rule 48 had, on this aspect, provided for this much and no more, the Statutory order could have hardly been open to any challenge. But Rule 48 (1) does not stop there but provides for something more in order to confine the network it casts. Its opening part read with Rule 1a states that an order, individual or general, can he made only for the purposes of securing five purposes, stated above, or any of them. In other words, though the Order which it makes may cover any subject whatsoever or any class of subjects, it must subserve the five purposes or any of them specified in Rule 48 read with Rule 1a. If it does not subserve any of them or if it does not have any intimate, real and rational nexus with them, it must be declared void and ultra vires. Even if it has only problematical and far-fatched nexus, it must be struck down. If it does not subserve any of them or if it does not have any intimate, real and rational nexus with them, it must be declared void and ultra vires. Even if it has only problematical and far-fatched nexus, it must be struck down. Clause (aa) of sub-rule (1) requires that no matter, required to be submitted for security, shall be published except with the permission of such authority subject to such conditions and restrictions (including additions, deletions or modifications) as such authority may impose. Clause (b) of sub-rule (1) empowers the Central government to prohibit or regulate the making or publishing of any document or class of documents or any matter relating to a particular subject or class of subjects or the use of any press. Clause (1a) of sub-rule (1) enables the principal authority or any officer of the government as may be authorised in that behalf by the principal authority to issue principles or guidelines, from time to time, required to be followed in that behalf. ( 51 ) IT is not disputed before us that the Statutory Order has been made for effectuating the purposes relating to the maintenance of public order, public safety and internal security. "public Order" has been the subject-matter of several judicial pronouncements. ( 52 ) IN O. K. Ghosh and Another v. E. X. Joseph, A. I. R. 1963 Supreme Court 812 the expression "public order" has been construed by the Supreme Court. The Supreme Court has observed that "public order" is virtually synonymous with public peace, safety and tranquillity. In that context, it has observed that if the measure intended to be taken has remote and indirect connection with public order, it cannot be said to be in the interests of public order. The connection between the restriction and the public order must be proximate and direct. Indirect or far-fetched connection between the restriction and public order would not be sufficient. Any restriction which is placed in the interests of public order must be rationally proxmimate and direct. In taking this view, the Supreme court has relied upon its earlier decision on the Superintendent, Central Prison, fatehgarh v. Dr. Ram Manoliar Lohia, a. I. R. 1960 Supreme Court 633. It has also relied upon the observation made by mr. Any restriction which is placed in the interests of public order must be rationally proxmimate and direct. In taking this view, the Supreme court has relied upon its earlier decision on the Superintendent, Central Prison, fatehgarh v. Dr. Ram Manoliar Lohia, a. I. R. 1960 Supreme Court 633. It has also relied upon the observation made by mr. Justice Patanjali Sastri in Rex v. Basudev, A. I. R. 1950 Federal Court 67, which is as follows :-"the connection contemplated between the restriction and public order must be real and proximate, not far-fetched or problematical. "in our opinion, this decision is the authority for the proposition that what is ultra vires is not severable because in the case there was no nexus between rule 4-A and 4-B of the Central Civil services (Conduct) Rules, 1955 and the public order. ( 53 ) IN Ram Manohar Lohia v. The state of Bihar, A. I. R. 1966 Supreme court 740 the expression "public order" and "law and order" came to be construed in the context of the Defence of India rules, 1962. The Supreme Court has observed that "public order" does not mean the same thing as "law and order". In the context of external aggression and the emergent situation created by it, the supreme Court has observed, it would be legitimate to hold that by maintenance of public order what was meant was prevention of disorder of a grave nature, a disorder which the authorities thought was necessary to prevent in view of the emergent situation. The expression "maintenance of law add order" may mean prevention of disorder of a comparatively lesser gravity and of local significance only. To illustrate, the supreme Court has observed that if people indulging in the Hindu religious festivity of Holi become rowdy, prevention of that disturbance, may be called the maintenance of law and order. The supreme Court has next observed that the distinction between "public order" and "law and order" was not a technical distinction but was a distinction of substance because if a man is to be deprived of his liberty under order, he can only be so deprived if the order is in terms of the rule. In such a case according to the Supreme Court, strict compliance with the letter of the rule is the essence of the matter. In such a case according to the Supreme Court, strict compliance with the letter of the rule is the essence of the matter. Where a statute drastically intereferes with the personal liberty of people, the rules have got to be strictly observed and if there is any doubt, it must be resolved in favour of the aggrieved person. Bearing in mind the connection of the expressing "maintenance of public order" as prevention of disorder of a grave nature we have to judge the nexus between the statutory Order and the three statutory purposes - public safety and public order and internal security specified in Rule 48, read with Rule 1a. ( 54 ) IN Madhu Limayes case (supra) while dealing with the connection of the word "public order" the Supreme Court has observed as follows:-"the overlap of public order and public tranquillity is only partial. The terms are not always synonymous. The latter is a much wider expression and takes in many things which cannot be described as public disorder. The words public order and public tranquillity overlap to a certain extent but there are matters which disturb public tranquillity without being a disturbance of public order. A person playing loud music in his own house in the middle of the night may disturb public tranquillity, but he is not causing public disorder. public order no doubt also requires absence of disturbance of a state of serenity in society but it goes further. It means what the French designate ordre publique, defined as an absence of insurrection, riot, turbulence, or crimes of violence. The expression public order includes absence of all acts which are a danger to the security of the State and also acts which are comprehended by the expression orders publique explained above but not acts which disturb only the serenity of others. "the Supreme Court has further observed that "the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from mere disturbance of the serenity of life to jeopardy of the State. The acts become graver and graver as we journey from the periphery of the larger circle towards the centre. In this journey we travel first through public tranquillity, then through public order and lastly to the security of the State. The acts become graver and graver as we journey from the periphery of the larger circle towards the centre. In this journey we travel first through public tranquillity, then through public order and lastly to the security of the State. For this purpose three concentric circles were imagined in Ram manohar Lohia case (A. I. R. 1966 S. C. 740) from which a passage has been quoted. It reads as under :-"one has to imagine three concentric circles. Law and order within which is the next circle representing public order and the smallest circle represents the security of the State. "all cases of disturbances of public tranquillity fall in the largest circle but some of them are outside public order for the purpose of the phrase maintenance of public order; similarly every breach of public order is not necessarily a case of an act likely to endanger the security of the state. What is relevant for the purpose of maintaining public order is not always relevant for the purpose of maintaining law and order. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. ( 55 ) IN Abdul Aziz v. The District magistrate, Bardwan and Others, A. I. R. 1973 Supreme Court 770 a similar question arose in the context of maintenance of Internal Security Act. The supreme Court has observed that, as distinguished from stray and simple cases of murder, murders committed with the definite object of promoting the cause oi the party to which the murderers belong have serious repercussions not merely on law and order but on public order. It was contended in that case that maintenance of internal security cannot comprehend maintenance of public order. The Supreme Court answering that contention observed that "internal security" is an expression of width sufficient to comprehend the concept of public order and that internal disturbances can threaten the security of the State and such disturbances may assume grave proportions so as to have a direct impact on public order. ( 56 ) IN Ram Bahadurs case (supra) the supreme Court has observed that it is wrong to treat every agitation as implying violence on a priori considerations. It has further observed as follows:-"the glorious history of our freedom movement exemplifies that agitations may primarily be intended to be and can be peaceful. ( 56 ) IN Ram Bahadurs case (supra) the supreme Court has observed that it is wrong to treat every agitation as implying violence on a priori considerations. It has further observed as follows:-"the glorious history of our freedom movement exemplifies that agitations may primarily be intended to be and can be peaceful. In this regard Gandhijis life-work has perhaps no parallel. Now indeed, in the West, of Dr. Martin Luther king. But agitations can also be meant to be violent under an apparently lawful cloak and there is ample power to quell there. It appears to us from the aforesaid decision of the Supreme Court that agitation which arouse public feelings and influence public opinion or public interest in regard to social and political questions do not necessarily lead to violence. ( 57 ) IN Sher Mohammad v. The State of West Bengal, A. I. R. 1975 Supreme court 2049 the Supreme Court has observed that it has been a consistent view of that Court that the liberty of a citizen is a priceless freedom, sedulously secured by the Constitution. Even so, during times of emergency, in compliance with the provisions of the Constitution, the said freedom may be curtailed, but only in strict compliance with statutory formalities which are the vigilant concern of the courts to enforce. ( 58 ) IN Liversidge v. Anderson and another, (1941) 3 All England Law reports 338 Lord Atkin has observed that laws do not remain silent even when the arms clash. ( 59 ) IN Naraindas Indurkhya v. The state of Madhya Pradesh and Others, a. I. R. 1974 Supreme Court 1232 it has been observed by the Supreme Court that the power to select and prescribe textbooks for obligatory use by students in school can be a potent and powerful weapon in the hands of the executive to inculcate its social, economic or political philosophy and ideology in young impressionable minds which have not yet developed the capacity to think indenpendently for themselves and which are easily amenable to the thoughts, ideas and influences to which they are continually exposed. The State government, controlled by a political party having a particular social, economic and political philosophy or ideology, may use the power of selecting and prescribing textbooks for indoctrinating the highly receptive and sensitive minds of young boys and girls and stifling the growth and develpoment of free thought which is so essential for the maintenance of democratic way of life. One of the basic values of a free society to which we are wedded is that there must be freedom not only for the thought that we cherish, but also for the thought that we hate. It has quoted with approval the following passage from the decision of Mr. Justice holmes in Abrams v. United Stales (1918) 250 U. S. 616:"the ultimate good desired is better reached by free trade in ideas - the best test of truth is the power of the thought to get itself accepted in the competition of the market. "proceeding further the Supreme Court has observed that there must be freedom of thought and the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest. That is why our Vedic prayer says: "let noble thoughts come to us from all sides. " It has next observed that the mind of the young students must not be cribbed, cabined and confined by thoughts and ideas which form the social, economic or political philosophy or ideology of the political party which is for the time being controlling the Government. ( 60 ) IN San tosh Singh v. Delhi administration, A. I. R. 1973 Supreme court 1091 the Supreme Court has observed that a reasonable balance must be struck between freedom of speech and expression and the restraint to which it is subjected. The following observation made by the Supreme Court is most apposite. "the right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in our Republic. Our governmental set-up being elected, limited and responsible we need requisite freedom of animadversion for our social interest ordinarily demands free propagation of views. Freedom to think as one likes, and to speek as one thinks are, as a rule, indispensable to the discovery and spread of truth and without free speech discussion may well futile. Our governmental set-up being elected, limited and responsible we need requisite freedom of animadversion for our social interest ordinarily demands free propagation of views. Freedom to think as one likes, and to speek as one thinks are, as a rule, indispensable to the discovery and spread of truth and without free speech discussion may well futile. But at the same time we can only ignore at our peril the vital importance of our social interest in, inter alia public order and security of our State. " . ( 61 ) BEARING in mind this connection of "public order", let us proceed to examine the Statutory Order. To repeat, any order issued under clause (a), (aa) or (b) or any principles or guidelines issued under clause (1a) must have intimate, real and rational nexus (and not problematical or far-fetched), as laid down by the Supreme court, with the objects which they purport to subserve. The five objects specified in the opening part of Rule 48 read with rule 1a cast their shadow and control, as they must, any order which is issued under clause (a), (aa), or (b) of sub-rule (1) or under sub-rule (1a ). ( 62 ) NOW Mr. C. T. Daru has challenged before us the vires of sub-paragraphs (c), (d), (e) and (g) of paragraph (1) of the statutory Order [s. O. 275 (E) ]. We are, therefore, not concerned with the rest of them. ( 63 ) THE Statutory Order in terms states that it has been issued under Rule 48. Its preamble states that it has been issued " for the purpose of securing the defence of India and civil defence, the public safety and maintenance of public order". The preamble to the Statutory Order specifies only three purposes: (1) the defence of india and civil defence, (2) public safety and (3) the maintenance of public order. Now whereas sub-section (1) of Section 3 of the Act specifies six purposes, Rule 48 made under the Act specifies five purposes omitting the maintenance of supplies and services essential to the life of the community and the Statutory order, made under Rule 48. specifies only three purposes omitting (1) the internal security and (2) the maintenance of the efficient conduct of military operations. specifies only three purposes omitting (1) the internal security and (2) the maintenance of the efficient conduct of military operations. It appears that the Statutory Order omits to specify the internal security as one of the purposes, firstly, because he has not been made for all the purposes specified in Rule 48 - the maintenance of efficient conduct of military operations having been indisputably omitted. However, since Rule 1a specified internal security as a purpose, we assume that "public order" includes "internal security". The latter has a narrower connection than the former. Its concentric circle is smaller than that of "public order" and therefore "public order" will include "internal security". In Binod Rao v. Minochar Rustom Masani, Original side Appeal No. 204 of 1975 decided by mr. Justice Madon and Mr. Justice Kania on February 10, 1976 (unreported), the high Court at Bombay has also taken the same view. We are in full agreement with it. The Supreme Court has taken the same view in Abdul Aziz case (supra ). ( 64 ) LET us now examine the nexus between sub-paragraphs (c), (d), (e) and (g) and the three purposes or any of them specified in the Statutory Order. Firstly, matters which may be printed or published have been classified into four groups: (i) news, (ii) comments, (iii) rumour and (iv) other reports. In the context of the first three kinds of matters, the fourth kind of matters - "other reports" - appears to be a residuary expression covering all things not covered by the first three. Now, what are sought to be prohibited from being printed or published without prior scrutiny and permission are news, comments, rumours and other reports of "any action taken under the provisions of the Maintenance of Internal Security Act, 1971" [sub-paragraphs (e) ], "proclamation of emergency made by the President on the 25th day of June 1975 under Article 352 of the Constitution" [sub-paragraph (d)], "the order made by the President on the 27th day of June 1975 under Articles 359 of the Constitution" [sub-paragraph (e)], i. e. to say, the Presidential order suspending the enforcement of certain fundamental rights and "any prejudicial report" as defined in clause (7) of Rule 36 of the Defence and Internal Security of India Rules, 1971" [sub-paragraph (g)]. It appears to us that sub-paragraphs (d) and (e) specify subjects within the meaning of clause (b) of sub-rule (1) of rule 48 the news, comments, rumour or other reports relating to which have been prohibited from being printed or published without prior scrutiny by the censor. ( 65 ) NOW clause (b) of sub-rule (1) of rule 48 read with Rule 1a enables inter alia the Central Government to prohibit without prior scrutiny the publication of "any matter relating to a particular subject or class of subjects" only for the purpose of effectuating five objects or any of them specified in its opening part. Similarly, sub-paragraphs (c), (d), (e) and (g) of the Statutory Order prohibit without prior scrutiny the printing and publication of news, comments, rumour and other reports of matters specified therein only for effectuating the three purposes specified in its opening part or any of them. ( 66 ) NEWS, when read in the context of comments, mean bare news and nothing else. Comments can be ordinarily classified into four classes: (i) appreciative comments, (ii) correctional or constructive comments, (iii) educative comments and (iv) provocative or destructive comments. Appreciative comments which hail and welcome the governmental policies and try to tell the people that what the Government does is in the interest of the people can never undermine (i) the defence of India and civil defence, (ii) public safety or (iii) the maintenance of public order. On the contrary they cater to the affectuation of these three purposes. A democratic government always learns by trial and error. It never believes that it is infallible. Belief in its infallibility is totally inconsistent with its democratic character. In a democracy, no government can ever be regarded as infallible because whether its policies are right or wrong, in public interest or otherwise is not judged by the government itself but by the popular sovereign - the people. In the State, of madhya Pradesh v. Thakur Bharat singh, A. I. R. 1967 Supreme Court 1170 the Supreme Court has regarded the concept of popular sovereignty as a fundamental principle of our federal structure. This is what it has said in paragraph 5 of the report. In the State, of madhya Pradesh v. Thakur Bharat singh, A. I. R. 1967 Supreme Court 1170 the Supreme Court has regarded the concept of popular sovereignty as a fundamental principle of our federal structure. This is what it has said in paragraph 5 of the report. "our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited government authority, i. e. the government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people. (2) There is distribution of powers between the three organs of the State - legislative, executive and judicial - each organ having some check direct or indirect on the other, and (3) the rule of law which includes judicial review of arbitrary executive action. "according to Dicey, rufe of law means (i) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and (ii) the exclusion of the existence of arbitrariness, of prerogative or wide discretionary authority on the part of the government. People, therefore, have an indefeasible right in a democracy to judge the governmental policies and must therefore have a right to point out to the Government errors in its policies so that the Government may correct them and set itself on the correct course of action if it has strayed away from it. These correctional comments do not have their source only in the right of the popular sovereign to point out the errors of its agent but emanate from the requirement of a democratic government to know its errors so that it can correct them and harmonise its policies with the will of the people. Infallibility and democracy go ill together. Infallibility and dictatorship or authoritarianism go hand in hand. The foundations of dictatorship lie in the strong desire on the part of an individual or a group of individuals to entrench themselves into power for ever regardless of what the people want or desire. Infallibility and democracy go ill together. Infallibility and dictatorship or authoritarianism go hand in hand. The foundations of dictatorship lie in the strong desire on the part of an individual or a group of individuals to entrench themselves into power for ever regardless of what the people want or desire. Such a desire on the part of an individual or a group of individuals can be successfully achieved only if he or they are able to sell the idea, either by press censorship or otherwise, by fully controlling the mass media of communications that what they do is always correct and admits of no error. The eyes and ears of a democratic government are always open and turned to public comments. Next, a democratic government may not always listen to the public cry against or public disapproval of its policies and may act contrary to the will of the people. It may not heed to correctional or constructive comments at all. In such a case, leaders of public opinion, through press and other mass media of communications, have alwaya a universally recognised right to tell the people that the governmental policies are erroneous and detrimental to democratic public interests and that the ruling party should be voted out of power at the next general elections. Such comments educate public opinion and are educative comments. Irrespective of whether critics are able to change the public opinion or not, every one in a democracy has a right to educate public opinion with the object of pointing out errors in governmental policies even with the avowed object of removing the ruling party out of power constitutionally at the next general elections. Right of dissent and Free Press are two out of three which constitute the essence of a democratic set-up, the third being independent judiciary acting as sentinel qua viveand discharging the duty of protecting the freedom of the people against executive and legislative inroads on it. Public comments and criticism which do not lead to violence or disturb public order cannot be forbidden in a democratic society. This is a compelling requirement of a healthy democratic society because they can never lead to the disturbance of public order nor can they endanger public safety. They alone build up a dynamic social order in a democracy. Public comments and criticism which do not lead to violence or disturb public order cannot be forbidden in a democratic society. This is a compelling requirement of a healthy democratic society because they can never lead to the disturbance of public order nor can they endanger public safety. They alone build up a dynamic social order in a democracy. ( 67 ) IT has not been argued, and rightly so, that the subjects specified in sub-paragraphs (c), (d) and (e) of paragraph (1) have relation to securing the defence of India and civil defence. We are, therefore, required to examine whether there is any nexus between them and securing the public safety and the maintenance of public order. It is true that the enforcement of Article 19 which inter alia guarantees freedom of expression has been suspended by the presidential Order referred to in sub-paragraph (e) of paragraph (1) of the statutory Order but the democratic character of our society has been suspended. Therefore, irrespective of whether fundamental right guaranteed by article 19 has been suspended, Free Press and Right of dissent which are the essence of a democratic society cannot be suspended except to prevent the outbreak of violence and disturbance of public order. That is exactly what the opening part of the Statutory Order seeks to do. Free Press and Right of dissent are the arteries of a society through which flows the blood of its democracy. To stifle them is to suffocate the democracy and to toll its death-knell. Any system of censorship which prohibits without prior scrutiny the publication of critical comments of a constructive character which are directed at educating public opinion even with the avowed object of having the ruling parly voted out of power or of converting the majority into minority and vice versa by the magic of the secret ballot at the next general elections is bound to stuff the arteries of a nation with a thick layer of collesterol which is bound to attack the heart of a democracy. Therefore, whenever such an order has been made, it is necessary to draw a line of demarcation between the basic needs of a democratic society and the requirements of a peaceful and orderly society. Therefore, whenever such an order has been made, it is necessary to draw a line of demarcation between the basic needs of a democratic society and the requirements of a peaceful and orderly society. Ultimately it is the duty of Court of law in a democratic country, governed by a written Constitution and rule of law as we are, to draw this thin and delicate line of demarcation between the two and cry halt to the executive and legislature even in an emergency: thus far and no further. ( 68 ) IN Binod Raos case (supra) referred to above, the High Court at bombay has very rightly observed as follows:"the Press is not only an instrument of disseminating information but it is also a powerful medium of moulding public opinion by propaganda. True democracy can only thrive in a free clearing-house of competing iedologies and philosophies - political, economic and social - and in this the Press has an important role to play. The day this clearing house closes down would tell the death-knell of democracy. It is not the function of the censor acting under the Censorship order to make newspapers and periodicals trim their sails to one wind or 1o tow along in a single file or to speak in chorus with one voice. 11 is not for him to exercise his statutory powers to force public opinion in a single mould or to turn the Press into an instrument of brain-washing the public. Under the censorship Order the Censor is appointed the nurse-maid of democracy and not its grave-digger. Dissent from the opinions and views held by the majority and criticism and disapproval of measure initiated by a party in power make for a healthy political climate, and it is not for the Censor to inject into this the lifelessness of forced conformity. Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication, for as Sir Maurice Gwyer said in Niharendu dutt Majmudar v. The King Emperor, 1942 F. C. R. 38 (51) (AIR 1942 F. C. 22) "hard words break no bones. . . and there are certain words and phrases which have so long become the stock in trade of the demagogue as almost to have lost all real meaning". But there are permissible limits to dissent and disapproval. . . and there are certain words and phrases which have so long become the stock in trade of the demagogue as almost to have lost all real meaning". But there are permissible limits to dissent and disapproval. The voice of dissent cannot take the form of incitement to revolutionary or subversive activities, for then instead of serving democracy it would subvert it. It is here that censors real role begins; for though it is not for him to stifle all dissent and protest, it is certainly his duty to see that dissent and protest do not overstep the permissible limits. The role which the censor is called upon to play is a delicate and important one. On his shoulders rests a great responsibility. Though his work must bring him public disfavour, he has not to compensate himself for this by seeking to win governmental favour by a display of excessive zeal. He has to preserve a fine balance. "these observations, made by the High court at Bombay, in the context of the guidelines issued by the Chief Censor, very appropriately apply to the Central government which has made the statutory Order under Rule 48. ( 69 ) JOHN Stuart Mill in his famous book, on Liberty has assigned to the right of dissent the place of pride in a democratic society. He says:"if all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. " (page 22 - Indian reprint, 1967 ). On the strength and value of human judgment, Mill says:"the whole strength and value, then, of human judgment depending on the one property, that it can be set right when it is wrong, reliance can be placed on it only when the means of setting it right are kept constantly at hand. In the case of any person whose judgment is really deserving of confidence, how has it become so ? Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him; to profit by as much of it as was just, and to expound to himself, and upon occasion to others, the fallacy of what was fallacious. Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him; to profit by as much of it as was just, and to expound to himself, and upon occasion to others, the fallacy of what was fallacious. Because he has felt that the only way in which a human being can make some approach to knowing the whole of a subject is by hearing what can be said about it by persons of every variety of opinion, and studying all modes in which it can be looked at by every character of mind. No wise man ever acquired his wisdom in any mode but this; nor is it in the nature of human intellect to become wise in any other manner. The steady habit of correcting and completing his own opinion by collating it with those of others, so far from causing doubt and hesitation in carrying it into practice, is the only stable foundation for a just reliance on it; for, being congnizant of all that can, at least obviously, be said against him, and having taken up his position against all gainsayers - knowing that he has sought for objections and difficulties instead of avoiding them, and has shut out no light which can be thrown upon the subject from any quarter - he has a right to think his judgment better than that of any person, or any multitude, who have not gone through a similar process. "a free and enlightened thought never dies even though its author may be crucified. Referring to Socrates, Mill says :"socrates was put to death, but the socratic philosophy rose like the sun in heaven and spread its illumination over the whole intellectual firmament. Christians were cast to the lions, but the christian church grew up a stately and spreading tree, overtopping the older and less vigorous growths, and stifling them by its shade. Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them or to abstain from any active effort for their diffusion. Christians were cast to the lions, but the christian church grew up a stately and spreading tree, overtopping the older and less vigorous growths, and stifling them by its shade. Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them or to abstain from any active effort for their diffusion. "adverting to the effect of error on truth, mill says:"truth gains more even by the errors of one who, with due study and preparation, thinks for himself than by the true opinions of those who only hold them because they do not suffer themselves to think. "in regard to diversity of opinion, Mill says:"they are adduced to show, by admitted and multiplied examples, the universality of the fact that only through diversity of opinion is there, in the existing state of human intellect, a chance of fair play to all sides of the truth. "on compelling an opinion to be silenced, Mill says:"first, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but fourthly, the meaning of the doctrine itself will be in danger of being lost or enfeebled, and deprived of its vital effect on the character and conduct; the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground and preventing the growth of any real and heartfelt conviction from reason or personal experience. "probing into the way in which the majority thinks, Mill says:"the majority, being satisfied with the ways of mankind as they now are (for it is they who make them what they are), cannot comprehend why those ways should not be good enough for everybody; and what is more, spontaneity forms no part of the ideal of the majority of moral and social reformers, but is rather looked on with jealousy, as a troublesome and perhaps rebellious obstruction to the general acceptance of what these reformers, in their own judgment, think would be best for mankind. " ( 70 ) HAROLD Laski, one of the great political thinkers of our century, in his book Liberty in the Modern State (First panguin Edition) says as follows on freedom of expression. "the most important aspect of this atmosphere is indoubtedly freedom of the mind. The citizen seeks for happiness, and the state, for him, is an institution which exists to make his happiness possible. He judges it, I have urged, by its capacity to respond to the needs he infers from the experience he encounters. That experience, I have insisted, is private to himself. Its predominant quality is its uniqueness. Either it is his own, or it is nothing. The substitution for it of someone elses experience, however much wider or wiser than his, is, where it is based upon constraint, a denial of freedom. What the citizen, quite rightly, expects from the state is to have his experience counted as he, and he only, expresses its import. Obviously enough if his experience is to count a man must be able to state it freely. The right to speak it, to print it, to seek in concert with others its translation into the event, is fundamental to liberty. If he is driven, in this realm, to silence and inactivity, he becomes a dumb and inarticulate creature, whose personality is neglected in the making of policy. " (Chapter II. pages 94 and 95)ON the question of genesis of truth, he says :-"new Truth begins always in a minority of one; it must be someones perception before it becomes a general perception. " (Chapter II. pages 94 and 95)ON the question of genesis of truth, he says :-"new Truth begins always in a minority of one; it must be someones perception before it becomes a general perception. " (Chapter II, page 97)ON the question of separation of truth from falsehood, he says:-"if the view held is untrue, experience shows that conviction of its untruth is invariably a matter of time; it does not come because authority announces that it is untrue. If the view is true in part only, the separation of truth and falsehood is accomplished most successfully in a free intellectual competition, a process of dissociation by rational criticism, in which those who hold the false opinion are driven to defend their position on rational grounds. If, again, the view held is wholly true, nothing whatever is gained by preventing its expression. Whether it relates to property, or marriage, to religion or the form of the State, by being true it demands a corresponding change in individual outlook and social organization. For untrue opinions do not permanently work. They impede discovery and they diminish happiness. They enable, of course, those to whom they are profitable, to benefit by their maintenance, but it is at the cost of society as a whole. " (Chapter II, page 98)ON censorship, this is what he says:"the official censor, a man like the famous Pobedonostev, normally assumes that only thorough criticism of the existing social order is dangerous and destructive; and, therefore, he transforms what might be creative demand into secret attack which is ten times more dangerous in its influence. If you take almost any of those who are appointed to work of this kind, you discover that association with it seems necessarily to unfit them for their task. For it turns them into men who see undesirability in work which the average man reads without even a suspicion that it is not the embodiment of experience with which he ought to be acquainted. " (Chapter II, page 99)SO far as limitations on the freedom of expression are concerned, Laski says:"they seem to me unworkable. They are bad because they prevent necessary social ventilation. They are bad because they exclude the general public from access to facts and ideas which are often of vital importance. " (Chapter II, page 99)SO far as limitations on the freedom of expression are concerned, Laski says:"they seem to me unworkable. They are bad because they prevent necessary social ventilation. They are bad because they exclude the general public from access to facts and ideas which are often of vital importance. They are bad because no one is wise or virtuous enough to stand in judgment upon what another man is to think or say or write. They are bad because they are incapable of common-sense application; there is never any possibility of a wise discrimination in their application. They give excessive protection to old traditions; they make excessively difficult the entrance of new. They confer power in a realm where qualifications for the exercise of power, and tests for its application, are, almost necessarily, non-existent. For the decision of every question of this kind is a matter of opinion in which there is no prospect of certainty. Suppression here means not the prohibition of the untrue or the unjust or the immoral, but of opinions unpleasing to those who exercise the censorship. Historically, no evidence exists to suggest that it has ever been exercised for other ends. " (Chapter ii, page 104) ( 71 ) THE Father of the Nation expressed his thoughts on "civil liberties" as follows:"the indispensable conditions of success is that we encourage the greatest freedom of opinion. Liberty of speech means that it is unassailed, even when the speech hurts; liberty of the press can be said to be truly respected only when the press can comment in the severest terms upon and even misrepresent matters, protection against misrepresentation or violence being secured not by an administrative gagging order, not by closing down the press but by punishing the real offender, leaving the press itself unrestricted. Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it. Evolution of democracy is not possible if we are not prepared to hear the other side. We shut the doors of reason when we refuse to listen to our opponents, or having listened, make fun of them. Evolution of democracy is not possible if we are not prepared to hear the other side. We shut the doors of reason when we refuse to listen to our opponents, or having listened, make fun of them. If intolerance becomes a habit, we run the risk of missing the truth. Whilst, with the limits that Nature has put upon our understanding, we must act fearlessly according to the light vouchsafed to us, we must always keep an open mind and be ever ready to find that what we believed to be turth was, after all, untruth. This openness of mind strengthens the truth in us and removes the dross from it, if there is any. "on the rule of majority, this is what he has stated :-"the rule of majority has a narrow application, i. e. one should yield to the majority in matters of detail. But it is slavery to be amenable to the majority, no matter what its decisions are. Democracy is not a state in which people act like sheep. Under democracy, individual liberty of opinion and action is jealously guarded. I, therefore, believe that the majority has a perfect right to act differently from the majority. "on relationship between secrecy and democracy, this is what he has stated:"any secrecy hinders the real spirit of democracy. "he said:"democracy and violence go ill together. . . . Liberty and democracy become unholy when their hands are dyed red with innocent blood. " (Quoted from The Wit and Wisdom of Gandhi edited by Homer A. Jack, 1951 edition - pp. 123 - 126 ). ( 72 ) PROVOCATIVE comments which have a destructive tendency to lead to outburst of violence or disturbance of public order must be prevented. No democratic government can administer the nation unless there is public safety and public peace. What sub-paragraphs (c), (d) and (e) do is not only to subject such provocative or destructive comments to prior scrutiny but to place a blanket ban on all sorts of comments. Such a blanket ban throttles democracy and is unwarranted by the requirements of effectuating the purposes specified in sub-rule (1) of Rule 48 and reproduced in the opening part of the Statutory Order. Such a blanket ban throttles democracy and is unwarranted by the requirements of effectuating the purposes specified in sub-rule (1) of Rule 48 and reproduced in the opening part of the Statutory Order. ( 73 ) PUBLICATION of a rumour in relation to the subjects specified in sub-paragraphs (c), (d) and (e) cannot be prohibited unless it has a bearing on the maintenance of public order. What is a rumour ? Is every news or information, not received from an official source, a rumour? If such a news or information is a rumour, does it mean that the people in a democracy are to be spoon-fed only on official hand-outs ? are they not entitled to know from any sources whatsoever what is happening in the country ? The publication of a canard may be prohibited. But what is a rumour the publication of which is prohibited? the expression is so vague and nebulous that it can be applied to all sorts of news and information which have not originated from official sources. If such news and information are published and if people come to learn them, how does it lead to infringement of public safety or disturbance of public order unless they are likely to lead to outbrust of violence or disturbance of public order? ( 74 ) other reports brings within its sweep everything that is left out. Such reports of a constructive character and having educative value also cannot be published without prior scrutiny. Why? how do they lead to violence and disturbance of public order ? ( 75 ) IN fact, in order to judge the actions of a democratic Government, people must know what the Government does, how it behaves and what leaders of public opinion and critics think of its policies and actions. Let us now apply these concepts to the impugned sub-paragraphs of the statutory order. ( 76 ) NOW, even bare news of action taken under the Maintenance of Internal security Act, 1971, the Proclamation of emergency made by the President on 25th june and the Presidential Order dated 27th June 1975 suspending the enforcement of certain fundamental rights cannot be published without prior scrutiny and permission. What purpose does this ban serve ? ( 76 ) NOW, even bare news of action taken under the Maintenance of Internal security Act, 1971, the Proclamation of emergency made by the President on 25th june and the Presidential Order dated 27th June 1975 suspending the enforcement of certain fundamental rights cannot be published without prior scrutiny and permission. What purpose does this ban serve ? In fact the government wants the people to know that the President has issued a proclamation of Emergency and suspended the enforcement of certain fundamental rights and yet their publication without prior scrutiny and permission has been banned by the statutory Order. How does the free publication of news which the government in fact wants to reach the people endanger public safety or disturb public order? It is beyond our comprehension to discover any nexus between this ban and the objects sought to be achieved. How does free publication of actions taken under MISA infringe public safety or publiic order? People, in fact, must in a democracy know who are detained without trial so that they can find out whether the Governmental policies and actions are unjustified or whether detenus had been acting to jeopardise public interest. Unless people are given this opportunity to judge between two rival stands how is the democracy going to function and prosper? Do the people have no right to judge governmental policies and actions ? Do they have no right in a democracy to, express their approval or disapproval of governmental policies and actions at the next general elections ? If they have such a right, how do they form their opinion unless they know how government, controlled by a particular party, has behaved while taking actions under MISA ? How does such news disturb public opinion or infringe public safety? If the Governmental actions are wholly unjustified and draconian in character, a democratic society has the right to judge them and to vote the ruling party out of power. In our opinion, therefore, prohibition of publication of all news in regard to subjects specified in clauses (c), (d) and (e) not only do as not effectuate the purposes for serving which the Statutory Order has been made but it serves the unwelcome and unhealthy tendency of suffocating and throttling democracy. Therefore, there is no nexus whatsoever between this ban and the purposes specified in Rule 48 (1) and reproduced in the Statutory Order. Therefore, there is no nexus whatsoever between this ban and the purposes specified in Rule 48 (1) and reproduced in the Statutory Order. It tries to overreach them. ( 77 ) SIMILARLY, appreciative, correctional and educative comments cannot lead to violence or disturbance of public order. They merely educate public opinion and furnish guidance to the Government. Such comments are conducive to democracy, they are the pipelines through which democracy flows. They cannot be choked. While on one hand, there is no nexus between the prohibition of their publication and the purposes for which it has been ordered, on the other hand it strangulates democracy and stifles democratic processes. It is a universal truth that eternal vigilance is the price of liberty. It is true of both the sides. Whereas the Government owes a duty to the nation to curb the violent and marauding activities of its oppenents, the opposition must be vigilant to see that, in the name of curbing such activities, the ruling party does not destroy the foundations of democracy and assume the dictatorial or authoritarian form. Rule 48 appears to strike a just and delicate balance between the two. Under its guise, liberty and democracy cannot be reduced to ashes. ( 78 ) PROVOCATIVE comments which have a tendency to endanger public safety or disturb public order can be legitimately prevented from being published. They are within the ambit of Rule 48 (1 ). ( 79 ) WE now proceed to examine rumour. What is a rumour in the context of the blanket ban imposed upon publication of anything relating to matters specified in sub-paragraphs (c), (d) and (e) ? The publication of a canard which is likely to produce violence may be subjected to prior censorship. But what is rumour in the present context ? Is every information not emanating from an official source or not permitted to be published by the Censor a rumour? rumours can be innocuous or provocative. An innocuous rumour never disturbs public order or public safety. A provocative rumour may lead to it. We see no nexus between an innocuous rumour in respect of any of the matters specified in sub-paragraphs (c), (d) and (e) and the endangerment of public safety or disturbance of pulic order. rumours can be innocuous or provocative. An innocuous rumour never disturbs public order or public safety. A provocative rumour may lead to it. We see no nexus between an innocuous rumour in respect of any of the matters specified in sub-paragraphs (c), (d) and (e) and the endangerment of public safety or disturbance of pulic order. Secondly, prohibition of publication of rumours other than innocuous, unless they are likely to endanger public safety or disturb public order, is unrelated to the achievements of the aforesaid two statutory purposes. We are unable to understand how prohibition of publication of rumours other than those which are likely to undermine public safety and public order can ever be ordered, firstly, because such a prohibition does not serve the aforesaid statutory purposes and secondly, because it has a deleterious effect on the democratic system which the people of India have chosen for themselves. We say so because democracy is a free market of thoughts and has a free trade in ideas. It furnishes full opportunity for free propagation of ones views which in their turn build up a dynamic social order [vide observations made by Supreme Court in Naraindass case (supra)]. It provides to its citizens the maximum opportunity for the fullest realisation of their personality. In a democracy, unless a citizen has full and adequate opportunity for the development of himself and realisation of his personality, he cannot contribute his best to the development of society and discharge the debt which he owes to it. ( 80 ) NEXT other reports is a residuary expression which takes into its sweep everything which does not answer the first three specific descriptions. other reports can be generally classified into three groups: (i) correctional, (ii) educative or constructive, (iii) and provocative or destructive. It is only a provocative report, having the potentiality of serving as a genesis of public disorder or public danger, which can be subjected to censorship. To subject all kinds of reports is to close down the free exchange of thoughts and ideas and to channelise all thought processes into one direction. It, therefore, suffers from the same vices from which ban on the publication of the censor suffers. Clauses (c), (d) and (e) appear to have been aimed -at disorder. There is no greater curse for a democracy than indoctrination. For a Court of law, proclamation of Emergency is not justiciable. It, therefore, suffers from the same vices from which ban on the publication of the censor suffers. Clauses (c), (d) and (e) appear to have been aimed -at disorder. There is no greater curse for a democracy than indoctrination. For a Court of law, proclamation of Emergency is not justiciable. We are constitutional bound to accept what it states and orders. But it is not politically nonjusticiable for the people. The people in a democracy are entitled to judge for themselves the propriety Of Proclamation of Emergency, actions taken under MISA and the presidential Order suspending certain fundamental rights. They cannot be denied the opportunity to know competing, opposite or rival viewpoints on their propriety. Having known all points of view, they decide for themselves whether the ruling party misgoverns or whether its opponents misbehave. It is this judgment which finds its expression in the ballot-box. If the popular verdict is against the ruling party, it goes out of power and yields its place to a more acceptable one. If the verdict is in favour of the ruling party, it continues to govern the country for a fresh constitutional term. To destroy these processes is to destory democracy and to usher in an era of dictatorial or authoritarian rule. That is not what Rule 48 (1) and Sections 3 and 38 seek to achieve or aim at. . ( 81 ) DEMOCRACY on the other hand presupposes a free national debate on all issues of public importance without which popular franchise has no value whatsoever. Stifling of legitimate comments and criticisms kills the soul of democracy. In this context, it is apposite to quote a passage from the judgment of Chief Justice Bhagwati (as he then was) in Manubhai Tribhovandas patel v. Stale of Gujarat and Another, 12 Gujarat Law Reports 968. Speaking for the Full Bench, he said in the context of Extracts from Mao-Tse-Tung :"these passages expound the philosophy of Mao-Tse-Tung with a view to its academic study and they cannot possibly by any stretch of language be regarded as seditious. To condem them as seditious would be to close the doors of knowledge, to ostracise a philosophy because it challenges values charished and held dear by our present-day society and holds up for acceptance a new way of life vastly different from that to which our people are presently accustomed. To condem them as seditious would be to close the doors of knowledge, to ostracise a philosophy because it challenges values charished and held dear by our present-day society and holds up for acceptance a new way of life vastly different from that to which our people are presently accustomed. It is not for the Government of the day nor for the Judges Presiding over our court to decide what doctrine or philosophy is good for our people. It is for the people to choose what is best for them and in order that they may be able to make a wise and intelligent choice, free propagation of ideas is an essential requisite. The ideas propagated may be unorthodox and unconventional; they may disturb the complacency of a handful minority or they may challenge deep seated, sacred, beliefs and question the most fundamental postulates of our social, political or economic thinking. That should be no ground for anxiety or apprehension, particularly in a country like ours which has always believed in the pursuit of truth and in its unending search for truth, never hesitated to receive new ideas and absorb them, if found accetable. There can indeed be no real freedom unless thought is free and unchecked, not free thought for those who agree with us but freedom for the thought that we hate. It is only from clash of ideas that truth Can emerge, for the best test of truth is the power of the thought to get itself accepted in the competition of the market. If, therefore, the publisher of this forfeited book wants to propagate the philosophy of Communism as expounded by Mao-Tse-tung amongst the people, there is no reason why he should not be free to do so. Let the people decide what doctrine or philosophy they wish to adopt. We have great faith in the common sense of our people and we have no doubt that with the sound unerring instinct which has guided them over the years, our people will choose a doctrine or philosophy true to their genius and reject the rest. If the people want to adopt the philosophy of Communism as expounded by Mao-tse-Tung, confiscation of a book like this is not going to stop them from doing so. If the people want to adopt the philosophy of Communism as expounded by Mao-tse-Tung, confiscation of a book like this is not going to stop them from doing so. The reasons for their choice would be much deeper and if the Government wants to repel the onslaught of Communist ideology, it is to an elimination of these reasons that the Government may well address itself rather than proscribe a book like this which propagates the principles and practice of Communism as expounded by one of its chief exponents, with a view to their academic study by the people. We may make it clear that, when we say this, we do not wish to suggest, that if any words or writings incite violence or disturb law and order or create public disorder with a view to overthrowing Government established by law, the State would have no power to forfeit a book containing such words or writings in order to prevent disturbance of public tranquillity or public order. The state has this undoubted power but we are of the view that the objected passages are not of a kind which would attract the exercise of such power. The objected passages which constitute but only six out of 184 passages to be found in the forfeited book do not, in our opinion, constitute seditious matter punishable under Section 124-A and the impugned order made by the State Government forfeiting the book cannot, therefore, be sustained under Section 99a. " ( 82 ) THEREFORE, so far as sub-paragraphs (c), (d) and (e) are concerned, there is a blanket ban on publication of anything relating to the subjects specified therein without the prior permission of the censor. In so far as this blanket ban has no relation whatsoever to the statutory objects specified in Rule 48 (1) read with section 3 they offend and are violative of them. They must, therefore, be struck down. These three sub-paragraphs have on the other hand a positive potentiality of seriously undermining democratic processes and replacing them by dictatorial trends. They close the doors of knowledge, militate against the discovery of truth, deny the people an opportunity to make a wise and intelligent choice between the party in power and the opposition and ostracise all points of view except that of the ruling party. ( 83 ) MR. They close the doors of knowledge, militate against the discovery of truth, deny the people an opportunity to make a wise and intelligent choice between the party in power and the opposition and ostracise all points of view except that of the ruling party. ( 83 ) MR. Vakharia has argued that instead of striking down sub-paragraphs (c), (d) and (e) of the Statutory Order, we should read into them the statutory purposes and uphold them subject to the qualification. We are unable to accede to this argument because to do so is to render those sub-paragraph redundant. If we read the aforesaid two statutory purposes into them, they will mean that news, comments, rumour or other reports relating to (i) actions taken under MISA, (ii) the Presidential Proclamation of emergency dated 25th day of June 1975 and (iii) the Presidential Order dated 27th june 1975 suspending certain fundamental rights which will or are likely to undermine public safety or disturb public order cannot be printed or published without the prior permission of the Censor. If we thus limit the connection of these three sub-paragraphs, then all such news, comments, rumour or other reports will assume the character of prejudicial report dealt with in sub-paragraph (g) of paragraph (1) of the Statutory Order. In such a case, sub-paragraphs (c), (d) and (e) will have the fault of repeating what sub-paragraph (g) provides (we are dealing with sub-paragraph (g) shortly and they will be rendered completely redundant and superfluous. We cannot rewrite the impugned sub-paragraphs nor can we attribute redundancy or superfluity to the order-making authority. In any case, to rewrite them is to substitute objective test for the Censors subjective test. It appears to us, therefore, that the Central Government, when it issued the Statutory Order, meant to prohibit the printing and publication of everything relating to the subjects, specified in sub-paragraphs (c), (d) and (e) except with the prior permission of the Censor. Support is lent to this view of ours by the fact that the Statutory order was further amended by the Central government on August 12, 1975 which has produced its present form. Even though sub-paragraph (g) which deals with prejudicial report will be attracted to news, comments, rumour or other reports which have the potentiality of endangering public safety or disturbing public order, sub-paragraphs (c), (d) and (e) have been retained. Even though sub-paragraph (g) which deals with prejudicial report will be attracted to news, comments, rumour or other reports which have the potentiality of endangering public safety or disturbing public order, sub-paragraphs (c), (d) and (e) have been retained. It is, therefore, clear that the Central Government does not want anything to be printed or published in regard to them except with the prior written permission of the censor. The guidelines which the Chief censor has issued to the Press under sub-rule (1a) of Rule 48, to which we are shortly referring, strongly fortify the conclusion we have arrived at. ( 84 ) MR. Vakharia has concerned that the validity of the Statutory Order should be tested on the anvil of the theroy of nexus but has asked us to assume that there is nexus between Rule 48 (1) and the impugned sub-paragraphs of the statutory Order. We cannot do so. The theroy of judicial review bars such an assumption where the exercises of the statutory power is to be tested with reference to its source. He has alternatively argued that we can examine the nexus to a limited extent. It cannot be gainsaid that if there is some real nexus, the vires must be upheld. In this case, respondents No. 1 and 5 or anyone of them has placed no material on record to establish nexus between the impugned sub-paragraphs of the Statutory Order and Rule 48 (1 ). In light of the arguments advanced before us and left to overselves we find none. Lastly, he has argued that nothing specified in the impugned sub-paragraphs is ex facie irrelevant or extraneous. This is a vague and nebulous argument. The Court has to apply the theory of nexus to uphold a Statutory order or to strike it down. ( 85 ) WHAT is the result which the blanket ban imposed by sub-paragraphs (c), (d) and (e) leads to. First, there is no conceivable nexus between them and the statutory purposes they are supposed to serve. They travel much beyond the authority of Rule 48 and Section 3 (1) and bring within their sweep what Rule 48 and Section 3 do not authorise and are, therefore, ultra vires Rule 48 and Section 3 (1) of the Act. First, there is no conceivable nexus between them and the statutory purposes they are supposed to serve. They travel much beyond the authority of Rule 48 and Section 3 (1) and bring within their sweep what Rule 48 and Section 3 do not authorise and are, therefore, ultra vires Rule 48 and Section 3 (1) of the Act. Secondly, they close down all channels of information and public education, keep open only one channel of information from the Central government to the people, ostracise all points of view except that of the government controlled by the party in power, shut the doors to the discovery or truth, bury free and unchecked flow of all constructive and educative thought, keep away the new way of life and deny to the people the valuable opportunity of judging the policies and actions of the party in power - an essential prerequisite of any democratic social order. It is only a one-way traffic. Democracy establishes rapport between the Government and the people. It presupposes a two-way traffic-down from the people to the government and up from the Government to the people. To close down all channels of information and public education except one is to brain-wash people, to introduce rigid regimentation of thought and to put an end to national dialogue. That such a system leads to such a result is the experience of history of the totalitarian world. Whoever has brought about negation of democracy and establishes a totalitarian or authoritarian regime has adpoted this springboard to jump to catch it. Thirdly, the impugned sub-paragraphs of the Statutory Order cause undue and unjustifiable interference with the ordinary avocations of people or a section of them in our democratic society. They are, therefore, ultra vires Section 38 also. ( 86 ) WE are, therefore, of the opinion that sub-paragraphs (c), (d) and (e) of the Statutory Order are ultra vires Rule 48 (1) and Section 3c1) read with Section 38 and are void. It is not possible for us to separate its legal portion from the rest. Therefore, as laid down by the supreme Court in Kameshwar Prasads case (supra), this is the only order which we can make. It is not possible for us to separate its legal portion from the rest. Therefore, as laid down by the supreme Court in Kameshwar Prasads case (supra), this is the only order which we can make. ( 87 ) WE may add that Rule 48, by providing for measures which may be taken to secure public safety and maintain public order, has for the time being struck a just balance between the needs of public safety and public order and the basic requirements of a democratic society. The eternal problem of maintaining the delicate balance between liberty and authority has been beautifully and justly solved by Rule 48 during the period of two Emergencies simultaneously operating in this country. That balance has been very seriously disturbed by the statutory Order which leans very heavily on the side of authoritarianism of democratic institution including individual liberty. The Statutory Order, therefore, overreaches Rule 48 and section 3 (1) and the purposes which it wants to effectuate and contains seeds of destruction of democracy in our country. ( 88 ) WE now turn to sub-paragraphs (g) of paragraph (1) of the Statutory Order. It reads thus:"that no news, comments, rumour or other report relating to. . . any prejudicial report as defined in clause (7) of Rule 36 of the Defence and Internal Security of India Rules, 1971 shall be published in any newspaper, periodical or other document unless such news, comments, rumour or other report has been submitted for security to an authorised officer and the publication thereof is authorised in writing by such officer. "now clause (7) of Rule 36 defines "prejudicial report" in the following terms:"any report, statement or visible representation, whether true or false, which, or the publishing of which, is, or is an incitement to the Commission of, a prejudicial act. "clause (6) of Rule 36 defines "prejudicial act" as follows. We are reproducing only those sub-clauses which are relevant for the purpose of this case. "any act which is intended or is likely. . . (a) to prejudice. . . the maintenance of peaceful conditions in any area (e) to bring into hatred or contempt, or to excite disaffection towards the government established by law in India. (5) otherwise to prejudice. . . the public safety or interest. "an examination of "prejudicial report" brings out many interesting aspects. . . (a) to prejudice. . . the maintenance of peaceful conditions in any area (e) to bring into hatred or contempt, or to excite disaffection towards the government established by law in India. (5) otherwise to prejudice. . . the public safety or interest. "an examination of "prejudicial report" brings out many interesting aspects. If we read sub-paragraph (g) of the statutory Order in the context of the purposes for accomplishing which it has been made, it means that the publication of a prejudicial report which is inter alia likely to endanger public safety or disturb public peace is prohibited except with the prior written permission of the Censor. There is no warrent for us to hold that, irrespective of whether a particular prejudicial report has that potentiality or not, its publication without the prior written permission of the Censor has been banned. It is humanly impossible to exhaustively catalogue all sorts of prejudicial report. But they can be broadly divided into two classes for the present purposes - (1) those which endanger public safety or disturb public order and (ii) those which do not. Whether a particular prejudicial report falls under one category or another depends not only upon its contents and language but upon many other factors including the politicial environment in the country. A printer or a publisher may genuinely think that a particular report is not a prejudicial report and yet the Government or the censor may think otherwise. In such a situation, it is the Court of law which decides its true character bearing in mind two basic facts - the demands of democracy and the needs of a peaceful and orderly society. That apart, the fact remains that a printer or a publisher is not required by the Statutory Order to submit to prior scrutiny of the Censor all reports. He is required to submit only such reports as he thinks prejudicial. If he thinks that a particular report is not a prejudicial report and prints or publishes it and if it is later found to be a prejudicial report, he takes the consequences either for having deliberately printed or published it or for his error of judgment. In any case, he is under no obligation to obtain prior permission of the Censor for printing or publishing all kinds of reports. In any case, he is under no obligation to obtain prior permission of the Censor for printing or publishing all kinds of reports. Since he is under such an obligation in respect of prejudicial reports only, it is he who, in the very nature of things, first decides whether a particular report is a prejudicial report or not and obtains prior permission for printing and publishing such reports as are, in his opinion, prejudicial reports. Other reports which are per se innocuous or which have no potentiality of endangering public safety or disturbing public order can be published by him without any interference by the Censor. In all other cases, he publishes reports at his risk, i. e. to say, in case of difference of opinion between him and the Censor, he takes the risk by publishing a report which may be untimately found by the court to be prejudicial. ( 89 ) BUT everything which criticises the governmental action or reports of what has happened in a part of the country is not a prejudicial report within the meaning of Rule 35 (7) read with Rule 48. ( 90 ) A prejudicial report within the meaning of sub-rule (7) read with sub-rule (6) of Rule 36 is one which answers the following description in the context of securing public safety and maintaining public order. (I) It must be the report of an act which is intended or likely to prejudice the maintenance of peaceful conditions in any area. If there is a report, correct or incorrect, true or false, of a particular situation which has developed in a particular part of the country but the publication of which is not likely or intended to lead to the deterioration of that situation, it is not a prejudicial report. As for example, report of the outbreak of communal disturbances in one part of the country, even if true, may not only lead to the deterioration of the situation there but may exacerbate the communal feelings elsewhere and develop communal tension adversely affecting the restoration or maintenance of peaceful conditions. Such a report will indeed be a prejudicial report. As for example, report of the outbreak of communal disturbances in one part of the country, even if true, may not only lead to the deterioration of the situation there but may exacerbate the communal feelings elsewhere and develop communal tension adversely affecting the restoration or maintenance of peaceful conditions. Such a report will indeed be a prejudicial report. However, the report of the speeches made at a public meeting peacefully protesting against the simultaneous operation of two emergencies, suspension of certain fundamental rights, arrests under MISA on a large scale without disclosing to the detenus the reasons for their arrests and denying to them the remedy of approaching the Court of law or against any economic, fiscal, political or other policies of the Govenrment will not be a prejudicial report unless accompanied by threat of violence. Such peaceful protests may lead to many other such protests in all parts of the country and yet it is not a prejudicial report. To peacefully protest against any governmental action with the immediate object of educating public opinion and the ultimate object of getting the ruling party voted out of power at the next general elections is not prejudicial report at all. Such a public education is the primary need of every democracy. What disturb the maintenance of peaceful conditions in any part of the country or comes in way of their restoration will fall within the mischief of Rule 48. Peaceful protests and criticisms spoken or published never disturb in a democracy the maintenance of peaceful conditions. A democracy without peaceful protests against any criticisms of governmental policies and without any dissent expressed anywhere is not a disciplined democracy but is a democracy of the graveyard. (II) Or it must be a report which brings into haired or contempt or excites disaffection towards a lawfully established government in India. Legitimate criticism of the Government even with the object of having the ruling party voted out of power at the next general elections is neither contempt nor hatred nor does it excite disaffection. Contempt, hatred and disaffection are terms which have a direct relation with public order. Generally what produces contempt or hatred or disaffection is likely to disturb public order. In this case Rule 48 read with Rule 36 casually connects them with public order. Contempt, hatred and disaffection are terms which have a direct relation with public order. Generally what produces contempt or hatred or disaffection is likely to disturb public order. In this case Rule 48 read with Rule 36 casually connects them with public order. That contempt, hatred or disaffection is sought to be axed which is likely to disturb public order or endanger public safety and none else. Therefore, reading these two rules together, we are of the opinion that contempt, hatred and disaffection, sought to be axed, are those which have with the disturbance of public order or endangerment of public safety the relationship of cause and effect and no other contempt, hatred or disaffection. To take any other view is to destory the just and delicate balance which Rule 48 seeks to establish between liberty and authority with its consequant adverse effect on the functioning of healthy democracy. In this context, it will be appropriate to refer to what Mr. Justice chandrachud has said in Smt. Indira nehru Gandhi v. Shri Raj Narain, A. I. R. 1975 S. C. 2299 (at pp. 2465-66 ). "that the nation shall be governed by a Government of laws, not of men is a pillar of our constitutional philosophy and therefore a pillar of the basic structure of our Constitution. "this distinction in a democracy is very important. Men and parties may come and may go but the government goes on for ever. Therefore, to point out the shortcomings, faults and errors of fallible persons who for the time being are in charge of the Government is to build up the Government of laws as distinguished from Government of men and to reinforce the pillar of our constitutional philosophy and not to produce or generate hatred, contempt or disaffection towards the lawfully established Government. Even when one political party yields to another governmental reins, the lawfully established Government goes on uninterruptedly. Therefore, the lawfully established Government has nothing to do with a particular political party which is for the time being in charge of the government. No individual is indispensable in a democracy - however mighty and powerful he may otherwise be. We are supported in this view of our by the following observations of the supreme Court in Kedar Nath Singhs case, (1962) Supp. S. C. R. 769 at 205. No individual is indispensable in a democracy - however mighty and powerful he may otherwise be. We are supported in this view of our by the following observations of the supreme Court in Kedar Nath Singhs case, (1962) Supp. S. C. R. 769 at 205. "the expression government established by law has to be distinguished from the person for the time being engaged in carrying on the administration. " ( 91 ) NEXT, to prevent the growth of disaffection is not tantamount to the growth of affection or love. People, in a democracy, are supposed to love the government run by a particular party for the inter-election period only. When the next general elections are held, they may renew democratic process. Next, a government may put down disaffection towards the ruling party by resorting to coercive and draconian measures but cannot destroy it from the hearts of the people if it has grown there on account of the misdeeds and short sightendess of the ruling party. Similarly, love grows in the hearts of the people. Draconian measures, adopted by a Government, may produce an external silhouette of popular love for the ruling party but cannot implant its reality in their hearts. The judicial inquiry is, therefore, always confined to discovering whether any prejudicial report which is likely to produce contempt, hatred or disaffection towards the lawfully established government as distinguished from the party which is for the time being in power is likely to endanger public safety or disturb public order. It cannot go beyond it. (III) Or a prejudicial report is really one which prejudices public interest. What is a public interest ? It is not synonymous with the self-interest of the party which is for the time being in power. public interest has a wider connotation. It has reference to people at large or a section thereof. Government is merely the agent of the State or the people. State is made up of (1) Population, (2) territory, (3) Govenrment and (4) sovereignty. This shows that people or the public are not synonymous with government. In a democracy a government headed by a particular parly represents for the time being the will of the people. It may cease to represent it even during the period of its constitutional term. It is, therefore, merely the agent of the people on whose behalf it governs for the time being the nation. In a democracy a government headed by a particular parly represents for the time being the will of the people. It may cease to represent it even during the period of its constitutional term. It is, therefore, merely the agent of the people on whose behalf it governs for the time being the nation. It is in public interest to peacefully or constitutionally remove it from power if it has lost the confidence of the people and has ceased to represent its will. It never leads to development of contempt, hatred or disaffection towards the lawfully established Government as distinguished from the party which or the individual who is for the time being in charge of it and reports of peaceful attempts made to achieve this object are not prejudicial reports within the meaning of Rule 36 (7 ). On the contrary, they are the exact contrary of prejudicial reports because "public interest" [sub-clause (5) of clause (6) of Rule 36] in a democracy demands that the parly for the lime being in charge of the lawfully eslablished Government which has not confidence of the people and ceased to represent their will must yield place to one which enjoys or represents it. If "public interest" as we understand it is to be secured, sources of information must freely function and process of public education must uninterruptedly, continually and unchecked go on. (IV) And report of such an act becomes prejudicial only if it has the tendency to incite the commission of a further prejudicial act as explained by us or is a prejudicial act itself. If a report is a prejudicial report as explained by us but if it does not incite the commission of a further prejudicial act, it is not a prejudicial report. We say so because a prejudicial act intended to be reported has already been committed. Therefore, there is no point in withholding its report unless it is likely to incite the commission of a further prejudicial act, that is to say, if it is likely to produce a similar or graver reaction or a chain reaction. A report which does not have such a potentiality is not a prejudicial report. Therefore, there is no point in withholding its report unless it is likely to incite the commission of a further prejudicial act, that is to say, if it is likely to produce a similar or graver reaction or a chain reaction. A report which does not have such a potentiality is not a prejudicial report. ( 92 ) IN our opinion, therefore, "the prejudicial report" for the purpose of this petition upon the publicalion of which ban has been imposed (except with the prior permission of the Censor) is one which is likely or inlended to prejudice the maintenance of peaceful conditions in any part of the country or which brings into contempt or hatred or excites disaffection towards any lawfully established Government in India as distinguished from the party which is for the time being in power or which prejudices public interest (as distinguished from the interest of the government manned by persons who for the time being run it) and which incites the commission of a prejudicial act or is a prejudicial act itself and which interferes with securing public safely or maintenance of public order but excludes from its range reports of peaceful and constructive criticisms levelled against the government or the party for the time being in power with the object of pointing out its errors so as to persuade it to correct its course of action or with the object of educating public opinion in order to have it voted oul of power at the next general elections and which do not provoke disorder or disturbance of public order and which have no elements for incitement to violence in the country or any part thereof. This is how we read sub-paragraph (g) of paragraph (1) of the Statutory Order. Next, the publication of any report does not require prior permission of the Censor unless the printer or editor thinks that it is or is likely to be regarded as a prejudicial report. Indeed, he does so at his risk in such cases where he thinks that it is not a prejudicial report but where it is ultimately found on a judicial inquiry to be a prejudicial report. Sub-paragraph (g) in the Statutory Order is, in light of the interpretation which we have placed upon it, not ultra vires Rule 48. Indeed, he does so at his risk in such cases where he thinks that it is not a prejudicial report but where it is ultimately found on a judicial inquiry to be a prejudicial report. Sub-paragraph (g) in the Statutory Order is, in light of the interpretation which we have placed upon it, not ultra vires Rule 48. In order to uphold its vires, we have read it down otherwise its arms are unduly long and has tiger claws which can tear off the veil of protection which Rule 48 (1) and section 38 have thrown round our democracy. Rule 48 empowers the government to make an order to restore normalcy in the country and not to strangulate democracy under the guise of restoring normalcy. We are constrained to say that we are not aware of any such measure as the Statutory Order having been taken by the Government of British india between 1942 and 1946 when British had been fighting the fiercest war for its very survival, yet wanted to perpetuate its hegemony on India and we had been carrying on, under the leadership of the father of the Nation, a non-violent war of independence. Even during those days the news, comments, rumours and other reports could be freely printed or published except those which undermined or adversely affected the war effort. Leaders of our freedom movement could address public meetings and their speeches were reported. Governmental policies and actions could be criticized and the "quit India" call given by the father of the Nation to our people could be reported. ( 93 ) IN taking this view of sub-paragraph (g) of the Statutory Order, we are fortified by judicial pronouncements. ( 94 ) THE language of Section 124a of indian Penal Code which renders sedition penal is pari materia with, nay, in fact wider than, the language of sub-clause (e) of clause (6) of Rule 36 which we have reproduce above. Both use the same expressions: "to bring into hatred or contempt or to excite disaffection towards the Government established by law in india". Section 124a was inserted in the penal Code as early as in 1898 when India had hardly thought of its freedom from british rule and when the British could do with impunity what they wanted to. Both use the same expressions: "to bring into hatred or contempt or to excite disaffection towards the Government established by law in india". Section 124a was inserted in the penal Code as early as in 1898 when India had hardly thought of its freedom from british rule and when the British could do with impunity what they wanted to. Without the three Explanations appended to it, it provides as under:-"whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. " (Emphasis ours.) the three Explanations to it read as under:"explanation 1.- The expression "disaffection" includes disloyalty and all feelings of enmity. ""explanation 2.- Comments expressing disaffection of the measure of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. ""explanation 3.- Comments expressing disapprobation of the administrative or other action of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. "explanations 2 and 3 are very important. They explain the meaning of the expressions used in the section. We are aware of the fact that Rule 36 (6 ( (e) does not have those explanations. Let us now see how the section has been interpreted and what difference the omission of those explanations in Rule 36 makes. It may be noted that Rule 34 (6) (e) of the Defence of India Rules, 1939 used the same language which Rule 36 (6) (e) of the Defence and Internal security of India Rules, 1971 uses. ( 95 ) IN Niharendu Dutt Majumdar v. Emperor A. I. R. 1942 Federal Court 22 the question of interpreting Rule 34 (6) (e) of the Defence of India Rules, 1939 arose before the Federal Court. The expression which sub-clause (e) of clause (6) of Rule 34 used was the same as one used by the present sub-clause (e) of clause (6) of Rule 36. The expression which sub-clause (e) of clause (6) of Rule 34 used was the same as one used by the present sub-clause (e) of clause (6) of Rule 36. The Federal Court observed that it used precisely the same language as was used in Section 124a of the Penal code. The Federal Court did not accept the argument that though Rule 34 used the same language as Section 124a used, it should be construed differently. They further observed that the omission in Rule 34 of the three Explanations which were appended to Section 124a of the Penal code did not affect the interpretation of rule 34. According to them, the three explanations were added to Section 124a of the Penal Code in order to remove any doubt as to the true meaning of the language used in Section 124a. They were not inended to add to or subtract from the section and that, therefore, the words used in Rule 34 ought to be interpreted in light of the Explanations appended to section 124a of the Penal Code. The federal Court further observed that public disorder or the reasonable anticipation or likelihood of public disorder was the gist of the offence created by Rule 34. In other words, the acts or words complained of must either incite people to disorder, or must be such as to satisfy reasonable men that that is their intention or tendency. Referring to the speech which was impugned in that case the Federal Court observed that it was frothy and irresponsible performance which could not be expected from a legislator. However, they observed that to describe that speech as an act of sedition is to do too great an honour to it. The Federal court next observed that hard words break no bones and that the wisdom of the Common law has long refused to regard as actionable any words which, though strictly and literally defamatory, would be regarded by all reasonable men as no more than mere vulgar abuse. Abusive language, even when used about a Government, is not necessarily seditious, and there are certain words and phrases which have so long become the stock-in-trade of the demagogue as almost to have lost all real meaning. Abusive language, even when used about a Government, is not necessarily seditious, and there are certain words and phrases which have so long become the stock-in-trade of the demagogue as almost to have lost all real meaning. The Federal court adopted the principle of reading the speech as a whole and observed that read as a whole it did not incite anyone who heard it to violence even though the audience cried "shame, shame" at intervals. They did not find in that speech any attempt by violence or by public disorder to subvert the Government for the time being established by law in bengal or elsewhere in India. After having observed that sedition is a grave offence and that prosecution for such an offence is a formidable weapon in the hands of a Government the Federal Court observed that it was all the more necessary to remember that opinions, and even the violent expression of opinions, do not necessarily fall within sedition. According to them, the occasion and circumstances of a speech undoubtedly should be taken into consideration because a speech addressed to excitable and perhaps ignorant persons might produce the results which would not be produced if it was addressed to an educated audience. These principles make it amply clear that under the guise of bringing into contempt or hatred or under the guise of generating disaffection towards the Governement established by law even spoken words of strong and formidable character cannot be made the subject-matter of prosecution unless they incite people to violence and disorder or unless reasonable men think that they will produce such a result. ( 96 ) A similar question arose before the judicial Committee of the Privy Council in Emperor v. Sadashiv Narayan bhalerao, A. I. R. 1947 Privy Council 82. In that case also sub-clause (e) of clause (6) of Rule 34 of the Defence of india Rules, 1939 with which the Federal court was concerned in the Niharendus case (supra) came up for consideration of the Privy Council. In that case also sub-clause (e) of clause (6) of Rule 34 of the Defence of india Rules, 1939 with which the Federal court was concerned in the Niharendus case (supra) came up for consideration of the Privy Council. After having referred to the decision of the Federal Court in niharendu Dutt Majumdars case (supra) and to their own earlier decision in Bat Gangadhar Tilak v. Queen-Empress, 25 Indian Appeals 1 and in Annie Besant v. Advocate General of Madras, 46 Indian Appeals 176 the privy Council observed that there was no material distinction between sub-clause (e) of clause (6) of Rule 34 and Section 124a of the Indian Penal code and that the omission in the Rule of the three Explanations appended to section 124a of the Indian Penal Code did not make any difference in the construction of sub-clause (e) of the clause (6) of Rule 34. However, the Privy council took the view that the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government irrespective of whether they would lead to any disturbance or outbreak. If anyone excited feeling of enmity towards the Government it was sufficient to make him guilty under the section. The Privy Council lastly observed that incitement to violence was not a necessary ingredient of the crime of sedition defined by sub-section (8) of section 326 of the Criminal Code of the gold Coast corresponding to Section 124a of the Indian Penal Code which in its turn corresponds to Rule 36 (6) (e) of the defence and Internal Security of India rules, 1971. ( 97 ) THESE two decisions came up for consideration of the Supreme Court in kedar Nath Singh v. State of Bihar, a. I. R. 1962 Supreme Court 955. In that case the Supreme Court was concerned with examining the constitutionality of sections 124a and 505 of the Indian Penal code. In order to uphold the constitutionality of Section 124a the supreme Court has approved the view expressed by the Federal Court in niharendu Dull Majumdars case (supra) and held that incitement to violence or intentional tendency to create public disorder or cause disturbance of public peace are the necessary ingredients of the offence of sedition under Section 124a. In order to uphold the constitutionality of Section 124a the supreme Court has approved the view expressed by the Federal Court in niharendu Dull Majumdars case (supra) and held that incitement to violence or intentional tendency to create public disorder or cause disturbance of public peace are the necessary ingredients of the offence of sedition under Section 124a. Since by judicial pronouncements the highest Courts have held that Rule 34 (6) (e) of the Defence of India Rules, 1939 has to he construed on the same lines on which Section 124a of the Indian penal Code is to he construed and since the Supreme Court has taken the view that incitement to violence or tendency or intention to disturb public order is a necessary ingredient of this offence, we must hold that sub-clause (e) of clause (6) of Rule 36 of the Defence and Internal security of India Rules, 1971 bears the same meaning which the Federal Court has given to sub-clause (e) of clause (6) of Rule 34 of the Defence of India Rules, 1939 in Niharendu Dutt Majumdars case (supra ). We may add that the construction placed by the Supreme Court on Section 124a, I. P. C. in Kedar Nath singhs case (supra) was for the purpose of upholding its constitutionality. The question of upholding its constitutionality cannot arise during Emergency because enforcement of the right guaranteed by article 19 (l) (a) has been suspended. But, in our opinion, merely because the enforcement of the right guaranteed by article 19 (l) (a) has been suspended during Emergency Section 124a cannot bear a different construction during emergency from one which it bears during normal times. Once the highest Court of the land construes a legal provision and assigns to it a particular meaning that provision must bear that meaning during normal times as well as during emergency. It has not been argued by mr. Vakharia that Section 124a would bear a different construction during emergency from one which it bears during normal times. Unless the Parliament or legislature step in and alters or modifies the language of a statute the statute must bear, at all times and during all situations, the same meaning or construction which has been assigned to it by the highest court of the land. Unless the Parliament or legislature step in and alters or modifies the language of a statute the statute must bear, at all times and during all situations, the same meaning or construction which has been assigned to it by the highest court of the land. When the Central government made Rule 36 (6) (e) and used the same language which Section 124a has used, they new that that language would bear the same construction which was assigned to it by the Supreme Court in Kedar Nath Singhs case (supra ). We are, therefore, perfectly entitled to assume that the Central Government while making Rule 36 (6) (e) wanted to bring within the purview of the Penal Law nothing more than what the Supreme court had intended in Kedar Nath singhs case (supra) read with the decision of the Federal Court in niharendu Dutt Majumdars case (supra ). In taking this view we are fortified by the rule of construction stated by Viscount Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing co. Ltd. (1933) Appeal Cases 402 at p. 411. It is as follows :-"it has long been a well-established principle to be applied in the consideration of Act of Parliament that where a word of doubtful meaning has received a clear judicial interpretation the subsequent statute which incorporates the same word or the same phrase in a similar context. must be construed so that the word or phrase is interpreted according to the meaning that has previously assigned to it. " This rule of construction has been cited with approval by the Supreme Court in Banarasi Debi v. The Income-tax officer. District IV, Calcutta and Others, a. I. R. 1964 Supreme Court 1742. A brief reference to the above decisions greatly supports the view which we have expressed here. ( 98 ) WE may finally point out that sub-rule (2) of Rule 48 uses the expression "if any person contravenes any order made under sub-rule (1 ). . . . ". The use of the verb "contravenes" indicates that contravention as an objective fact has got to be proved. It has no relation to the subjective satisfaction of the Chief Censor. Sub-rule (2) therefore lends support to the view which we have taken. ( 99 ) REFERENCE has also been made to the guidelines issued by the Chief Censor to all editiors, printers and publishers. It has no relation to the subjective satisfaction of the Chief Censor. Sub-rule (2) therefore lends support to the view which we have taken. ( 99 ) REFERENCE has also been made to the guidelines issued by the Chief Censor to all editiors, printers and publishers. They have presumably been issued under sub-rule (1a) of Rule 48. We proceed to examine the consequential effect of this decision of ours on such of them as are relevant for the purpose of the instant case. Having closely examined the relevant guidelines we cannot help observing that whereas the Statutory order has very long arms than Rule 48 (1) permits it to have, the guidelines have still longer arms and leave nothing on which they do not cast their ominous shadow. The Chief Censor, who has issued them, must have been aware of rule 48 read with Rule 36 and the statutory Order when he issued them. We cannot help feeling that he has been more loyal to the king than the king himself. ( 100 ) MR. Vakharia has objected to their production. His objection is thoroughly misconceived and wholly unsustainable. Firstly, they have been issued under sub-rule (1a) of Rule 48. They partake of statutory character. A statutory act of which a citizen complains as injuring him cannot be secret or confidential from the Court. Secondly, they have been issued to all editors, printers and publishers in the country. Such a document in its very nature cannot be secret or confidential from the Court or the people. Thirdly, they have also been issued to the petitioners. Fourthly, Mr. Vakharia has himself relied upon them in support of the Impugned Order. They are, therefore, entitled to ask us to examine their validity in light of the conclusions we have arrived at. We, therefore, overrule the objection raised by Mr. Vakharia and proceed to examine the effect of our conclusions, recorded herein, on such of the guidelines as are relevant for the urgent purpose. We are aware of the view which the High Court at Bombay in Binod Raos unreported decision (supra) has expressed. They have treated the guidelines as administrative instructions. We are unable to agree with this view of theirs. We are aware of the view which the High Court at Bombay in Binod Raos unreported decision (supra) has expressed. They have treated the guidelines as administrative instructions. We are unable to agree with this view of theirs. However, we are in agreement with them in the following observations which they have made:-"both on principle and authorities we do not find it possible to hold that under the Censorship order the Chief Censor can issue instructions in the guise of directions containing principles and guidelines travelling beyond the scope of the Censorship Order. To hold that this can be done would be tantamount to placing the Chief Censor and other authorities upon whom such power is conferred on a higher pedestal than parliament which passed the said Act or the Central Government which made the said Rule 48 and the Censorship Order. "however, a closer scrutiny of the relevant guidelines does not wholly bear out the following observations of the High court at Bombay as we shall presently show. ". . . WE do not read the said guidelines as banning all protest or disapproval of a governmental measure. These guidelines must be so interpreted as to refer not to every protest or disapproval but only to such a protest or disapproval as would affect the internal security, or the public safety or the maintenance of public order. The protest and disapproval contained in the said resolution is an exercise of the right of dissent. " . ( 101 ) THE guidelines consist of nine paragraphs some of which have been sub-divided. The opening paragraph states that the purpose of censorship is to guide and advise the "press to guard against publication of unauthorised, irresponsible or demoralising news items, reports, conjectures or rumours". In our opinion, the purpose of censorship has been overstated both in the context of the Statutory Order as well as in the context of Rule 48 (1) read with Section 3 (1 ). The expression "unauthorised" is an expression of vague and nebulous character. If it means as it should mean that the Press must not publish anything not authorised by the Censor, it exceeds the limits laid down by Rule 48 (1 ). Similarly, the expression "irresponsible" suffers from the same vice. Is anything not emanating from the official source irresposible ? Similarly, is anything not supporting the Government demoralising? If it means as it should mean that the Press must not publish anything not authorised by the Censor, it exceeds the limits laid down by Rule 48 (1 ). Similarly, the expression "irresponsible" suffers from the same vice. Is anything not emanating from the official source irresposible ? Similarly, is anything not supporting the Government demoralising? Next, is everything, not authorised by the Chief Censor pertaining to the Government a conjecture or rumour? Do all these things excite violence, disturb public order, lead to public disorder or endanger public safety ? the use of the expression "unauthorised, irresponsible or demoralising news items, reports, conjectures or rumours" as not "conducive to maintenance of public order, stability and economic growth in the country" is much wider than is permitted by Rule 48 as interpreted by us in light of the decisions of the Supreme court referred to above. Paragraph 2 states as follows :-"censorship covers any news, report, comment, statement, visual representation, film, photograph, picture and cartoon. "this expression is of widest amplitude. If it is fitted into Rule 48 (1) it can only mean "any news, report, comment, statement, visual representation, film, photograph, picture and cartoon" as are likely to disturb public order or endanger public safety. Paragraph 3 states as follows:"censorship applies to the publication of news, comments or reports relating to the proceedings in Parliament, any legislative Assembly or a Court of Law. "proceedings in a Court of Law can never incite people to public disorder or violence or disturb public order or endanger public safety. So also those who make their speeches on the floor of the parliament or the Legislative Assembly do so with a sense of responsibility even though they may belong to the Opposition or may be opposed to the party in powers at the centre. It is difficult to imagine how these proceedings can ever incite people to violence, disturb public order or endanger public safety. In a democracy people merely by virtue of the fact that they belong to a democratic society are entitled to know what their representatives speak on the floor of the parliament or the Legislative Assembly and how they behave and to judge their performance there. In a democracy people merely by virtue of the fact that they belong to a democratic society are entitled to know what their representatives speak on the floor of the parliament or the Legislative Assembly and how they behave and to judge their performance there. If people at large want to resort to violence it is not a speech on the floor of the Parliament or legislative Assembly or a proceeding in a Court of law which ignites the spark. They will resort to it even otherwise. If they are peaceful and orderly, a stray speech here or there is very unlikely to incite them to violence or disturb public order or endanger public safety. To say that a speech made on the floor of the parliament or the Legislative Assembly or a proceeding in a Court of Law is likely to disturb public order or endanger public safety or is likely to incite people to violence is to give it credit which it does not deserve. So much for the opening paragraphs in the guidelines issued by the Chief Censor. Parts (ii) and (iii) of sub-paragraph (b) of paragraph 3 are very interesting to note. They read as follows :" (II) The operative part of the order of the court may be published but in apporpriate language. (III) Nothing should be published which infringes Censorship. "it is difficult to imagine how the publication of the entire judgement or order delivered by a Court of law will defeat the purpose or purposes of Rule 48. It is also difficult to imagine that the operative part of an order made by a court will not be in an appropriate language and that before it is published it should be recast in appropriate language. It is also impossible for us to imagine that any proceeding in a Court of law will ever infringe censorship. As long as we live in our present democratic set up a Court of law has a final word in saying what the law is. If, therefore, what a Court of law states is law and if nothing else is law, it appears ridiculous that the Press should be directed to publish only that part of the proceedings in a Court of law which do not infringe censorship! If, therefore, what a Court of law states is law and if nothing else is law, it appears ridiculous that the Press should be directed to publish only that part of the proceedings in a Court of law which do not infringe censorship! For the purpose of this case it is not necessary for us to deal with all items mentioned in paragraph 4. Item (e) reads as under:"nothing which is sought to be published should relate to agitations and violent incidents. "item (g) reads as under:"there should be no indication in the published material that it has been censored. "item (h) reads as under:"no reference should be made to the places of detention and the names of the political personalities detained. "items (g) and (h) prescribe wholly innocuous matters not falling by any stretch of imagination within the meaning of Rule 48. What purpose does omission to indicate that some material (not printed or published) has been censored and that it has been disallowed from being published serve ? Does the Chief Censor in his wildest imagination think that if the Press gave this indication there would be disturbance of public order, ehdangerment of public safety or that he would be subjected to popular wrath. So far as item (h) is concerned, though it may not be open to a Court of law to inquire into the grounds of detention and to pronounce upon the validity of detention without trial, are not people who are much above and far higher than the government in a democracy supposed to know who are detained and where. How do they judge whether those who have been detained have misbehaved or the government who has detained them without disclosing to them reasons for their detention and without affording them an opportunity to resort to a Court of law has misbehaved ? The people rise as they always do above political parties and factions in a democracy. They have an indefeasible right to sit in judgment upon the policies and actions, misdeeds and maladministration of the parly in power and also upon the misdeeds and the misbehaviour of its opponents. Does rule 48 empower the Chief Censor to deny the people at large this politicial education and political judgment? They have an indefeasible right to sit in judgment upon the policies and actions, misdeeds and maladministration of the parly in power and also upon the misdeeds and the misbehaviour of its opponents. Does rule 48 empower the Chief Censor to deny the people at large this politicial education and political judgment? similarly, how the reports relating to peaceful agitations made by people in one part of the country disturb public order or endanger public safely in that part of the country or elsewhere ? Even if a peaceful agitation started in one part of the country against a governmental policy or polices leads to a chain of such agilations in other parts of the country, the report of such an agilalion would not, in our opinion, be a prejudicial report wilhin the meaning of sub-paragraph (g) of the Statutory Order read in light of rule 48 (1) and Seclion 3 (1) unless it is likely to lead to incitement to violence or disturbance of public safety or endangerment of public peace. One more item which is necessary to be noted is as follows:"nothing should be published which is likely to denigrate the institutions of the prime Minister, President, Governors and judges of Supreme Court and High courts. "this item makes an interesting reading. Let us take the instilution of the Prime minister. The institution of the Prime minister as eslablished by our constitution is very much different from the person who occupies that office for the time being. Institution of the Prime minister is not synonymous with its incumbent. Anything said about the incumbent of the office of the Prime minister cannot denigrate the institution of the Prime Minister. We may in this context refer to the decision of the supreme Court in Barad Kanta v. Registrar, Orissa High Court, A. I. R. 1974 Supreme Court 710 wherein it has been observed that the jurisdiction under the contempt of Courts Act is not intended to uphold the personal dignity of the Judges or to save them from vilification as individuals and that it is to be invoked when the Judge is vilified as a Judge so that when this high institution is denigrated it becomes public mischief punishable for contempt. Therefore, it is not the individual who is protected from any contemptuous or scandalising attack but only the institution. Therefore, it is not the individual who is protected from any contemptuous or scandalising attack but only the institution. Therefore a person who holds a high office is not synonymous with the institution. In that view of the matter, it is impossible for anyone to think that no criticism of the persons manning the government. In a flourishing and prosperous democracy it is the public vigilance which operates as a check or sanction against the party in power. If the glare of public vigilance is to be shut out a democracy is bound to degenerate into an oligarchy. It is impossible for us to imagine even in our wildest dream that the aforesaid item would fall within the meaning of Rule 48. ( 102 ) PARAGRAPH 5 states that quotations from the broadcasts of A. I. R. , news agency reports and statement officially released by Govenrment can be published if such quotations give a true and faithful account of what has been stated and nothing is taken out of the relevant context or distorted in any manner. As if these guidelines are not enough paragraph 9 states that in case of any doubt about the advisability or otherwise of publishing any news, report or comment, the Chief Censor should be consulted. We have referred only to some of the guidelines issued by the Chief censor in order to show that they exceed the scope of Rule 48 to an unimaginable extent and throw on the people of this country a mask of suffocation and strangulation. To prohibit the publication of procedings in Parliament or in a legislative Assembly or in a Court of law, to prohibit publication of reports of peaceful agitations taking place in the country, to direct that Press shall not indicate that the Censor has censored some material, to prohibit the publication of the names of the political detenus and places of their detention, to prohibit the publication of the misdeeds of the ruling party or the incumbent of the office of the Prime Minister and to prohibit quotations on the ground that they shall not be torn out of context is to bottleneck free circulation of news and views which is essential for the maintenance of a healthy democracy. ( 103 ) WE feel, on having perueed sections 3 and 38 and Rule 48, that they lay down the legitimate bounds for taking action to deal with an uncommon situation. The Statutory Order goes much farther and seeks to prohibit publication of certain matters which would never fall within the compass of Rule 48 and Section 3. The guidelines issued by the Chief censor take a further stride and place a blanket ban on the publication of news, views, criticisms and comments, however peaceful and orderly they may be if they are distasteful to the party in power. We feel unhappy to state that the guidelines issued by the Chief Censor completely choke the pipeline of democracy, fully contaminate the otherwise clean and invigorating environment of freedom and have a strong tendency to create a managerial Class for wire-fencing the people of this country to it. There cannot be a more draconian assault on people in democracy than one which is disclosed by the guidelines issued by the Chief censor. Whether we are passing through an emergency or living in normal times, whether the uncommon situation in the country requires placing of restraint on the freedom of people, the guidelines issued by the Chief Censor and quoted above can never be upheld. Public criticism which is the life-line of democracy is sought to be cut by these guidelines and they pierce into its heart. To permit such guidelines to operate even for a moment more will be destructive of our cherished democratic social order. We are, therefore, of the opinion that such of the guidelines as have no reference whatsoever or relation with the statutory purposes specified in Rule 48 or Section 3 are illegal and inoperative. Our decision on the vires of the Statutory order produces this impact upon the guidelines. It is on account of this reason that we have stated in the earlier part of this judgment that the Chief Censor has been more loyal to the king than the king himself and has outwitted the people in their attempt to maintain even the basic form of democracy in this country. It is on account of this reason that we have stated in the earlier part of this judgment that the Chief Censor has been more loyal to the king than the king himself and has outwitted the people in their attempt to maintain even the basic form of democracy in this country. ( 104 ) IN the unreported decision of the high Court at Bombay in- Binod Raos case (supra) the learned Judges have very correctly and aptly made the following observation:"no man who has played an important role in history can ever hope or expect to be praised by all. No policy or course of action of a ruler or Government can ever meet with the approval and concurrence of every single person. "this brings to an end the first contention raised by Dr. Daru. ( 105 ) WE now turn to examine the second contention raised by him. It takes us to the report of the inaugural address which Mr. M. C. Chagla delivered to the conference and the report of proceedings of the conference written by Dinesh shukla. It appears that Mr. Chagla delivered his inaugural address in English. "bhumiputra" published its abridged version in Gujarati. The following is the english translation of the repoil published by "bhumiputra" in Gujarati. Since it was abridged it is slightly different from the actual text of his address :-"m. C. Chagla darkness will go, Light shall dawn. (Shri M. C. Chagla was Chief Justice of the High Court from 1947 to 1958. He resigned the high office at the request of Pandit Jawaharlal Nehru, the then prime Minister of India, who wanted him to serve as the Ambassador of India in washington. He filled that office with great ability. He was later nominated as the High Commissioner for India in london. Thereafter he was appointed a minister in the Central Cabinet. He held the portfolio of External Affairs and later of Education. He resigned from the cabinet on account of his difference on the language policy of the Government of India. He does not belong to any political party.) we have not to consider civil liberties in the context of the present situation. I wonder whether I am awake or going through a nightmare, but, unfortunately it is a reality. He resigned from the cabinet on account of his difference on the language policy of the Government of India. He does not belong to any political party.) we have not to consider civil liberties in the context of the present situation. I wonder whether I am awake or going through a nightmare, but, unfortunately it is a reality. We live in a country where gandhiji not only fought for freedom from the British Government, but also for freedom from tyranny, oppression, and injustice of every kind. In a message which he wrote in Young India as far back as in 1921, he said "in a democracy we must jeolously guard the freedom of expression, thought and action". Then we had our Constitution. Whenever a revolution starts, there is always a proud proclamation as to the objects of the revolution. In U. S. Jefferson gave the battle cry "all men are born equal and they are endowed with the inalienable rights of life and liberty and pursuit of happiness". When the french solidiers fought the revolution barefooted, they had the battle cry, "liberty, equality and fratermity". Some jurists have said that there is hardly a constitution which has a preamble of this character, and the two aspects of that preamble have been emphasized. They are: "sovereign, democratic republic". And, the preamble emphasizes the liberty of thought, expression and liberty in other respects. We were living in a land which had to be governed by the precepts of gandhiji and which had accepted liberty as a prevailing aspect of its activities. What is the position today? Is anything left of Civil liberties ? A man can be detained without any reason being given to him and without his being able to give an explanation for his conduct or without having a right to appeal. Anybody may be shut behind the bars. Thousands of people, today, in the jails do not know what offence they have committed. Where there is no charge, how can there be any defence ? Why have all these come about ? to my mind, the fountain source of sin is the emergency. In order to understand the emergency, we must look into the background. Let us look at the events. On the 12th of June, two historic events took place. Where there is no charge, how can there be any defence ? Why have all these come about ? to my mind, the fountain source of sin is the emergency. In order to understand the emergency, we must look into the background. Let us look at the events. On the 12th of June, two historic events took place. When the historian of the furture writes the history of our country he will record that 12th June marked the turning point in our history. The first event was the decision of Mr. Justice Sinha, holding that the Prime Minister was guilty of corrupt practice. The second historic event was the results of elections in Gujarat and the Janata Party was found to be in a working majority in the Legislature, these two events had serious reaction on the Prime Minister. She felt her own position shaky. Therefore, from that day the idea might have started maturing in her mind to make sure of her position. Thereafter on the 25th of June all the opposition leaders met and resolved that the Prime Minister should resign and that satyagraha would start from the 29th of that month in support of that demand. Let me say one thing to you; Satyagraha is not violation of the law. The very word satyagraha connotes truth and non-violence. It is Gandhiji who has introduced this word in the political vocabulary of the world. But, why go to gandhiji, only the other day the Supreme court gave the judgment that the satyagraha is perfectly legal. The leaders wanted the Prime Minister to quit office. Just analyse that; is it a sin in democracy to ask the Prime Minister to quit office ? is the opposition leader in England Mrs. Thatchers asking every day Mr. Wilson to vacate office of the Prime Minister a sin? Did not Mr. Wilson go on asking the then Prime Minister Mr. Heath, to quit office as the Prime Minister ? With great respect to the Prime Minister of our country, I want to say that she is not a deity who cannot be removed from the temple ! Democratically every person has a right to say that the Prime Minister should resign or that there should be a change of the Prime Minister. What was her answer and what was the answer of those who surround her ? Democratically every person has a right to say that the Prime Minister should resign or that there should be a change of the Prime Minister. What was her answer and what was the answer of those who surround her ? That in the present situation Indira Gandhi is indispensable! Now, for anyone to say that a person is indispensable in a democracy is to sin against the light of democracy, is to be disloyal to the faith of democracy. Indispensability of an individual and democracy cannot go hand in hand. No one is indispensable to us. In democracy, anyone has a right to aspire to the High Office. In America, as they say, anyone can go to the White House from a log cabin and be the President. Therefore, I do not see that a very great crime was committed by the Oppositoon leaders in asking the Prime Minister to quit office. She then said that there was a conspiracy to bring about a complete deadlock in the country, to ask the army to revolt and to bring about a situation whereby there would be chaos in India. Now let me say one thing, and I say it with confidence, not an iota of evidence has been produced by her that there was any such conspiracy. Of course, when the Prime Minister speaks, one must respect what she says; but still I am entitled to say that she has not produced an iota of evidence for saying that there was a conspiracy. If you study the resolutions passed on 25th June earlier by Opposition leaders, it will be clear that they have repeatedly emphasised non-violence. Amongst the programmes planned by them, there were gheraos, Satyagraha and morchas. All these programmes are perfectly legitimate. There was not a single statement in any of the resolutions which would mean that either they wanted to resort to violence or that they wanted to take to illegal action. And the only piece of evidence on which the Prime minister has been harping day in and day out is that of J. P. She says that jayprakashji had asked the soliders and policemen not to obey illegal orders. This statement of Jayaprakashji is legally sound. International organizations have approved that it is not incumbent upon a police officer or any army officer to carry out an order which is illegal. This statement of Jayaprakashji is legally sound. International organizations have approved that it is not incumbent upon a police officer or any army officer to carry out an order which is illegal. All know that an American Officer shot dead 50-60 innocent villagers in a Viet Nam village and was tried in America. What j. P. said, therefore, is legally sound. But he never called upon the army to lake up arms against the State. He was merely enunciating a legal proposition when he found in Bihar policemen and soliders shooting down innocent people and students. Therefore, the only conclusion that I would come to, and I want you to endorse that conclusion, is that there was no conspiracy on the part of the opposition leaders. The conspiracy was by the Prime Minister. I repeat, the conspiracy was by the Prime Minister to put the leaders in jail, to have a press censorship and to deprive the people of india of their Civil liberties. Now, the prime Minister says almost every day that india is a democracy and all that happens here is democratic. I am reminded of a story in "alice in Wonderland". Humpty dumpty told Alice, "if I say that a word has a certain meaning, that word has that meaning. You cannot change it. " so, when the Prime Minister says that dictatorship is democracy, you must accept her word. She is Humpty Dumpty and she thinks all the nation are Alice in the wonderland. But, at least some of us are not fooled by these talks of hers. Those of us who are here know what is democracy and what is dictatorship, and the mere fact that the prime Minister calls a situation today which, to my mind, is nothing short of dictatorship, a democracy, it does not make this country a democracy. And why does she get so angry with the Western Press ? They are right in saying that they are sorry that we, the greatest democracy in the world, have adopted undemocratic system. What pains me most is the loss of freedom of press. Democracy cannot function without a free press. The Chief Justice of U. S. A. has said in his speech that the ordered liberty which prevails in America is due to the combination of a free press and an independent judiciary. These two concomitants are essential for liberty. What pains me most is the loss of freedom of press. Democracy cannot function without a free press. The Chief Justice of U. S. A. has said in his speech that the ordered liberty which prevails in America is due to the combination of a free press and an independent judiciary. These two concomitants are essential for liberty. We have also a system of ordered liberty. Our liberty is not a licence. Article 19 here provides that if necessary liberty can be curtailed. In America, there is no such provision. But wisely our founding fathers provided certain exceptions. What is the position today? Freedom of Press has two aspects. First, to get information and the second to purvey that information. Today, both these channels are completely blocked. No paper or no news from outside can come into this country which contains any reference hostile to the Prime Minister or to her government. No article, letter or statement can be published in any news paper, which criticizes the Prime Minister or the Government. As for instance, take mohan Dharias speech. It was a first class speech but not a word of that speech was reported in any newspaper. Similarly kuldip Nayar was arrested and detained. The Government realised that it would lose the case. Therefore he was released before the judgment came. The Court was told that it was not necessary to pronounce judgment. But it must be said to the credit of the Judges they did deliver the judgment. In Maharashtra, no body knows that Kuldip Nayar was ever arrested, no body knows that the trial took place, no body knows that he was delivered. I do not know about Gujarat. If you want to read the judgment you will have to read "london Times". Therefore, even with regard to the parliamentary proceedings which are privileged under the Constitution, even with regard to Court proceedings which are a public trial, the censorship does not permit it to be reproted. But censorship I can understand if it is related to a particular subject for a particular time under particular circumstances. We can understand censorship on the movement of troops or on our success or defeat if a war is on. But then that applies to all. But this is a unilateral censorship. You can sing hymns of glory to the Prime Minister, and they will be printed. We can understand censorship on the movement of troops or on our success or defeat if a war is on. But then that applies to all. But this is a unilateral censorship. You can sing hymns of glory to the Prime Minister, and they will be printed. Not a word of criticism against her will be printed. Do you think that todays proceedings and speeches will be reported ? It is running a serious risk of censorship. The times of India has of course shown us the courtesy by reporting that today I shall inaugurate this conference. The government has a great deal to lose by this method. What does freedom of thought or freedom of speech mean ? That you have a right to criticize, a right to comment, a right to point out mistakes. Government does not know whether it is making mistakes, because there is no body to point out. The voice of dissent is completely muted, with the result that the Government thinks, today, that it is omniscient. Of course it is omnipotent. Whatever it does is right and you and i must say it is right else you and I run the risk of being put behind the bars. But we are accused by them of being fascists, of being right revisionists and they call themselves democrats. I do not think that there can be greater limit to this linguistic perversity that to call us fascists and call themselves democrats. What do we stand for ? We are not standing for overthrow of Government because we know that Government should be thrown away by constitutional or democratic methods. We are not standing for rebellion or revolt, because, we are not violent temperamantally and constitutionally. All that we are saying is: restore to this country the liberties which were guaranteed under the constitution. I will not at present go into the question of fundamental rights. I talk only about liberty, because it is the basis of democracy. No democracy can exist without liberty. Therefore, grant us our inalienable right to liberty, restore freedom of the Press and revoke this unjust emergency. Now, what are the reasons for this ? do you know the Article which provides for it ? Emergency can be declared if there is a grave emergency which threatens the security of State, by reason of war, foreign aggression, internal disturbance. Therefore, grant us our inalienable right to liberty, restore freedom of the Press and revoke this unjust emergency. Now, what are the reasons for this ? do you know the Article which provides for it ? Emergency can be declared if there is a grave emergency which threatens the security of State, by reason of war, foreign aggression, internal disturbance. Now, do you find any war in the country or threat of aggression? There was the first emergency which is still continuing. The only country we had to fear from was pakistan. But, today, we have entered into a pact with her, have entered into trade relations with her, there are better communications and nobody says that pakistan is threatening aggression against india. And yet, they have kept the emergency in force ever since 1971. Now the fresh emergency has been declared. What was the occasion for it ? They say, "internal disturbance". Was there any internal disturbance ? As a matter of fact, the Prime Minister goes on saying day in and day out that the situation is perfectly normal. The other day the Home minister said two days after emergency, that there was not a single act of violence in any part of the country. Then what is the justification of this emergency ? The prime Minister says that the emergency has taught people discipline. I do not know much about constitutional law but I did not know that in order to enforce discipline you can declare emergency! No nation can be great without being disciplined. If the Prime Ministers argument is correct, then we must have emergency in perpetuity. Therefore, our first demand in this conference should be that emergency should be immediately revoked. For all evils flow from emergency. If emergency goes, many other things will go with it. Gandhiji has said that end does not justify the means. But even Gandhijis quotations are censored, Jawaharlal Nehrus quotations are censored by these persons and even Indira Gandhis quotations are censored because she now talks the contrary. Leave aside your and my quotations. Therefore this emergency must go. Gandhiji had said that the ends do not justify the means. Throughout his life he followed the precept. He even said: "i will not even get freedom for my country with evil means. " His philosophy was that if your means are evil your ends get contaminated. Leave aside your and my quotations. Therefore this emergency must go. Gandhiji had said that the ends do not justify the means. Throughout his life he followed the precept. He even said: "i will not even get freedom for my country with evil means. " His philosophy was that if your means are evil your ends get contaminated. But, what are we being told today? Means do not matter, put people in jail, have censorship, deny people their civil liberties and the ordinary democratic rights so that we get more production, more profitability in industry. But surely we want more production but these means cannot be used for them. For, these means are destroying the democracy and democratic values, which means, really, the end of the Constitution which was conceived and framed by our founding fathers. Friends, we have to ask ourselves this question, and seriously consider, what is going to happen to our country ? We must answer two questions. The first question is: Do we want to live in a Police State or in a democratic State ? When a man cannot write what he wants and have it published, when newspapers cannot publish any comments, when people can be sent behind bars without any reasons being assigned: these are all characteristics of a Police State. The second question is: Do I want to live in a free society or a captive society? do I as a follower of Mahatma Gandhi want to walk with my head up as a free man or am I going to be controlled, restricted and put down by an omnipotent government ? Absence of civil liberties makes a society a captive society. It is not governed by laws but by men of caprice. Such a society can be trampled upon by Government. And remember that constitutional dictatorship is the worst form of dictatorship. I would rather have the Constitution abrogated than to pretend and say that Indira Gandhi is constitutional, she is democratic and all that she has done is permitted by the constitution. And lastly do not ignore the force of public opinion. Today our hands are shackled, our mouths are sealed, Our pens cannot write anything because it cannot be published. But, public opinion can still assert itself. Here you are over a thousand people. You have heard what I have said. And lastly do not ignore the force of public opinion. Today our hands are shackled, our mouths are sealed, Our pens cannot write anything because it cannot be published. But, public opinion can still assert itself. Here you are over a thousand people. You have heard what I have said. By word of mouth you can carry this message outside. If big meetings are not allowed, hold smaller meeting but take this message to the people. If public opinion is formed, it will assert itself. I refuse to believe that my country which has had civilization going back to centuries, my country where the constitution was drafted for a democratic state will always remain in the shadow of dictatorship. There is a saying in english that "when the night is darkest, the dawn is not far". I see the night very dark. I am an old man and have not got long to live. But, you younger people will see the dawn. The dawn is bound to come. This country cannot go under. For thousands of years we have survived invasions. We have survived all sorts of troubles and I am sure that we will survive both Indira Gandhi and her dictatorship. " (Inaugural address at the civil Liberties Conference held at ahmedabad on 12th October abridged ). ( 106 ) THE English version of the report written by Dinesh Shukla and published by bhumiputra is as follows:-"civil Liberties Conference civil Liberties are the most concrete expression of freedom. By virtue of certain rights which an individual enjoys as a citizen he becomes an effective and meaningful partner in a political society. The effective participation of a citizen in different walks of society is not only beneficial to him but it leads to elevation of society. Such a healthy exchange between an individual and a society will be the precondition of a cultured society. It is an irony of fate that even though traditions of Civil liberties had developed in our country, the conscience of the citizens had to be awakened for their protection and to develop a strong public opinion. In view of the strangulation of civil liberties so easily made recently, one cannot help feeling that there are certain matters in regard to which we can never be self-complacent. In view of the strangulation of civil liberties so easily made recently, one cannot help feeling that there are certain matters in regard to which we can never be self-complacent. That what was taken for granted can be so easily done away with shows that we have failed to construct institutional devices for the preservation of values of our life. It is a fact that it is the want of a thing which brings us the realization of its true value. Under the auspices of Citizens for democracy, Gujarat Branch, All India civil Liberties Conference was held at ahmedabad on 12th October 1975. If there is any place for such an action in any part of the country it is Gujarat. All these who participated in the Conference admitted this fact. Such a thing is not only difficult but impossible in any other state (with the probable exception of tamilnadu ). It is impossible to imagine such a conference in Delhi. Mr. B. K. Majmudar in his welcome address thanked and complimented the government of Gujarat for creating a free atmosphere of non-interference in matters of civil liberties in spite of emergency. The Conference commenced with the inaugural address of Mr. Justice M. C. Chagla. The precision, effectiveness and logic of his thoughts and his impressive personaliry even at his old age along with the fearless representation of what he thought to be true without caring for anything were really inspiring. Amongst all forms of dictatorship the constitutional dictatorship is the worst. It is the most deceptive. It is established under the illusion that everything goes on according to the Constitution and, therefore, it is difficult to resist it or to bring about its transformation. Even then in a prophetic tone he stated that "when the night is darkest, the dawn is not far. I may not probably be alive to see the glow of that dawn but I am confident that all of you will enjoy it. However great an individual may be, he can never compare himself with the Nation. This nation has faced many difficult situations and emergencies and has safely survived them. Similarly it will come out of this acid test safely. "every member of the audience was hearing an echo of his own feelings in his emotional address. Everyone was feeling as if Chagla Saheb had been expressing his own thoughts and his own feelings. This nation has faced many difficult situations and emergencies and has safely survived them. Similarly it will come out of this acid test safely. "every member of the audience was hearing an echo of his own feelings in his emotional address. Everyone was feeling as if Chagla Saheb had been expressing his own thoughts and his own feelings. There was a wonderful rapport between the speaker and the listeners ! mr. Justice J. C. Shah, the President of the Conference described the danger which the nation faces when its administration passes from devoted and honest politicians to opportunists and corrupt individuals. He stated that democracy is not merely a form of government; it is much more a way of life. If it does not reach different walks of life, the seed of democracy cannot sprout in the soil of that society. Thereafter different resolutions were moved at the Conference and they were debated. Mr. Minoo Masani moved the resolution demanding the restoration of civil liberties and democratic processes in the country. By that resolution the withdrawal of steps taken for suppressing democratic processes and Civil liberties after the declaration of emegency such as imposition of precensorship on Press and its arbitrary enforcement, the arrests and detentions of thousands of men and women under MISA without showing any reasons, the drastic cuts introduced in the field of protection of Civil liberties and in the jurisdiction of the Courts by laws and ordinances and the action of rendering non-justiciable by constitutional amendment, the constitutional provisions Incorporating rule of law was demanded and it was further demanded that Civil liberties and democratic processes as they had been earlier operating be restored. The well-known Advocate of Bombay, Mr. Soli sorabji and Mr. S. M. Joshi spoke in favour of the resolution. Amongst other resolution which were moved at the Conference a demand was made for making means of communications and propaganda such as press, radio and television which had been placed under the monopolistic control of the Government, the true media for cultivation of public opinion and expression in the true sense of the terms after removing the monopolistic control. It was resolved that the press censorship be lifted and that radio and television be placed in charge of independent corporations. This resolution was moved by Mr. K. D. Desai and was seconded by Mr. Shantibhai Shah and Mr. Vishnu pandya. It was resolved that the press censorship be lifted and that radio and television be placed in charge of independent corporations. This resolution was moved by Mr. K. D. Desai and was seconded by Mr. Shantibhai Shah and Mr. Vishnu pandya. Amongst other resolutions there were some which opposed the move to deprive the Courts of law of their Writ jurisdiction, to stop the improper treatment of the detenus and illegal detentions and to request the Parliament to restore Civil liberties and democratic values. On these resolutions Mr. Tarkunde, Mr. Mohan Dharia, Mr. Justice nathvani, Mr. Justice Naik, Mr. Chandrakant Daru, Mr. P. G. Mavlankar, mr. Bhogilal Gandhi and other speakers spoke. After a full debate all these resolutions were unanimously passed. The delegates had attended both the sessions of the Conference in good numbers. The speeches of Mr. Mohan dharia and Mr. S. M. Joshi produced a very good impression on the audience. The speeches of different jurists elucidated the legal and juristic aspects of the problem. Lastly while concluding the Conference mr. Joshi expressed the confidence that this Conference would witness the beginning of the end of the Emergency and the dictatorial regime of Shrimati indira Gandhi. " ( 107 ) WE have to examine these two reports with a view of finding out whether they would stir up violence, disturb public order or endanger public safety. That is the lest which we have laid down in the earlier part of this judgment. So far as the inaugural address of Mr. Chagla is concerned, though it is fairly emotional and strong it states the values of liberty and democracy, emphasizes the value of truth and non-violence, reminds the people that, as Gandhiji stated, ends do not justify the means and he asked his listeners to cultivate public opinion for the restriction of Civil liberties and to carry the word of mouth from man to man by holding smaller meetings if bigger could not be held. The entire speech of mr. Chagla emphasizes the purity of means, truth and non-violence and refers to Satyagraha discovered by Mahatma gandhiji as having been endorsed by the supreme Court. It appears that when Mr. Chagla made that statement he had in mind the decision of the Supreme Court in Ham Bahadurs case (supra ). Taking into account that Mr. The entire speech of mr. Chagla emphasizes the purity of means, truth and non-violence and refers to Satyagraha discovered by Mahatma gandhiji as having been endorsed by the supreme Court. It appears that when Mr. Chagla made that statement he had in mind the decision of the Supreme Court in Ham Bahadurs case (supra ). Taking into account that Mr. Chagla is a former chief Justice of the High Court of Bombay and taking into account the Sarvodaya philosophy of "bhumiputra" which is a variant of Gandhian philosophy of truth and non-violence, it is impossible for us to imagine that the readers of "bhumiputra" would ever be stirred up to violence or would be induced to commit breach of public order or endanger public safety. It cannot be gainsaid that Mr. Chagla, as the report discloses, was making a passionate appeal for restoration of Civil liberties and was protesting against the suppression of Civil liberties, detention without trial and reasons and was tracing causes which, according to him, led to that situation. His speech also shows that, in a democracy, to demand the resignation of the Prime Minister is not only not out of place but it is quite proper. He was also emphasizing that in a democracy, no individual however great is indispensable and that nation always rises above the individuals however great and mighty they may be. He was also emphasizing the majesty of the democratic process under which the lowliest in life can reach the highest position which the nation may confer upon him. He was also trying to tell his audience that the Prime Minister has not an iota of evidence to show the conspiracy which she was alleging against the leaders of opposition. His speech shows emphasis on non-violence and non-violent means. He was trying to show, with reference to Jay Prakash Narayan after giving an example of what happened in a Viet Nam village, that it is not the duty of the armed forces to butcher innocent persons. In his view by which Civil liberties were suppressed were not in pursuance of any conspiracy hatched by opposition leaders but was the outcome of the conspiracy hatched by the Prime Minister to deprive the nation of its fundamental rights. In his view by which Civil liberties were suppressed were not in pursuance of any conspiracy hatched by opposition leaders but was the outcome of the conspiracy hatched by the Prime Minister to deprive the nation of its fundamental rights. He was also reminding his audience of the institutional devices which must remain intact to preserve democracy and freedom and was in that context referring to the freedom of Press and independent judiciary in addition to the right of dissent. His speech in terms shows that when a nation fights a life and dealth struggle such as one when it is engaged in a war with another country, censorship becomes necessary in order 10 prevent the leakage of strategic information of vital importance to the enemy. Mis speech further shows that he was very much moved by the imposition of censorship and the curtailment of the freedom of press. In order that the report of his speech may be properly appreciated we have reproduced verbatim the English translation of the Gujarati report of his speech. His speech indeed is a strong and emphatic protest of a man who has charished in life certain democratic values against, what he thinks, suppression of civil liberties in this country. We have to take the speech as a whole and come to a conclusion whether any reasonable man would ever think, as laid down by sir Maurice Gwyer C. J. in Niharendu dutt Majumdars case (supra), that it would disturb public order, create public disorder, endanger public safety and cause incitement to violence. It is impossible for us to come to the conclusion that it could have produced any such consequences. On the contrary, he passionately appealed to the people through his listeners to build up a moral and non-violent force for the restoration of Civil liberties which according to him have been suppressed by the Government. While reading his speech as a whole in order to find out its true effect we have followed the principle laid down by the bombay Court in Anant Janardan karandikar v. M. A. Deshmukh, 68 G. L. R. 256. It was a case of detention under the Maintenance of Internal security Act. ( 108 ) MR. Vakharia has, however, tried to argue that the speech of Mr. It was a case of detention under the Maintenance of Internal security Act. ( 108 ) MR. Vakharia has, however, tried to argue that the speech of Mr. Chagla lays emphasis on contempt and hatred towards the Government and tries to incite disaffection towards it because it criticizes the Proclamation of Emergency in a distorted manner and asks the people to rise in revolt against the Government. We are unable to uphold this argument of Mr. Vakharia. If democracy means anything, it means nonconformism. The legitimate criticism of governmental actions based on ones opinion however strong and passionate it may be does not generate any contempt or hatred against the Government nor does it incite any disaffection towards it. It may undermine the political prestige of the ruling party amongst the people but that is a situation to which no exception can be taken because to expose the wrong policies and misdeeds of the ruling party even with the ultimate object of getting it voted out of power at the next general elections is the fundamental and basic democratic process. The next argument which Mr. Vakharia has raised is that the role of the Prime Minister has been criticized by Mr. Chagla in a distorted manner and there is a character-assassination of the prime Minister. We do not find in his speech any such character-assassination. On the contrary, he has tried to protest in his own language against the policies of the Prime Minister which in his opinion are harmful to the nation and has done so with full respect to her which he has expressed in his address. The reference to non-violence, truth and Satyagraha made by him bears ample testimony to the fact that for removal of the misfoutune, which according to him, has befallen the nation violence must be ruled out and Gandhian path must be adopted. In our opinion, he fervently and passionately appealed to his listerners to adopt the Gandhian path judicially recognized by the Supreme Court in Ram bahadurs case (supra ). Mr. Vakharia, on the contrary, has argued that reference to non-violence and Gandhian methods is nothing but a cloak to excite violence. According to him, it is an indirect device through which Mr. Chagla was exciting people to violence. The antecedents of mr. Mr. Vakharia, on the contrary, has argued that reference to non-violence and Gandhian methods is nothing but a cloak to excite violence. According to him, it is an indirect device through which Mr. Chagla was exciting people to violence. The antecedents of mr. Chagla stated by "bhumiputra" while introducing him to its readers and his emphasis on Gandhian methods could never have been understood by the readers of "bhumiputra" as a device to incite violence with the object of disturbing public order or endangering public safety. ( 109 ) MR Vakharia has next argued that a number of references made by Mr. Chagla to the Prime Minister have denigrated the institution of the Prime minister. While making this submission mr. Vakharia has overlooked two material aspects. Neither Section 3 nor Rule 48 permits the Central Government to make any order by which a printer or a publisher can be directed not to publish anything which denigrates the institution of the Prime Minister. Denigration of the institution of the Prime Minister assuming that it is otherwise impermissible cannot ipso facto lead to disturbance of public order, creation of public disorder or endangerment of public safety. This argument which Mr. Vakkaria has raised appears to be based upon a guideline which the Chief Censor has issued to the press. However, in fact and in reality we do not find in Mr. Chaglas speech anything which denigrates the institution of the Prime Minister. He has indeed strongly criticized the policies of the present Prime Minister but such a strong criticism of the policies adopted by her does not and cannot mean denigration of the institution of the Prime Minister. It may, however, be noted that denigration of the institution of the Prime Minister is not one of the purposes specified in rule 48 or Section 3 read with Section 38. Next, the incumbent of the office of the Prime Minister is very much different from the institution of the Prime Minsiter. In public life Prime Minister come and go but the institution of the Prime minister goes on for ever. If the policies of a particular Prime Minister are in the opinion of a citizen harmful or dangerous to the nation he is certainly at liberty to criticize them and to expose to the people their character. By doing so he does not denigrate the institution of the prime Minister. If the policies of a particular Prime Minister are in the opinion of a citizen harmful or dangerous to the nation he is certainly at liberty to criticize them and to expose to the people their character. By doing so he does not denigrate the institution of the prime Minister. On the contrary, such an exposure saves the institution of the prime Minister from denigration. In a democracy no man in public life can cook his broth in privacy to the exclusion of the people whom he claims to represent, his policies, conduct, behaviour and actions must be exposed to public gaze so as to ensure their purity and uprightness. It is the vigilant public opinion in a democracy which ensure its safety. When that vigilance degenerates into self-complacence, democratic values start perishing and democracy starts disappearing. ( 110 ) MR. Vakharia has further asked us to note that the inaugural address of Mr. Chagla was "a speech of an angry, old and frustrated politician". We are not concerned in the instant case with finding out whether Mr. Chagla is a frustrated politician though he indeed is old. It is no doubt true that this old jurist was angry at the policies adopted by the ruling party. We wish Mr. Vakharia, appearing on behalf of the Union of India and the chief Censor had avoided such a distasteful allusion to a person who once adorned Chief Justiceship of the High court at Bombay, represented this country diplomatically in U. S. A. and great Britain and was Minister of external Affairs and of Education. His achievements in life show that he was a Diplomat, Statesman and a great Judge and is a great patriot and eminent jurist. A jurist whose love of life is law cannot ordinarily be assumed to make an appeal to incite violence. We cannot gainsay that his speech would indeed arouse public interest in governmental policies but is incapable of arousing a violent action. The reference to gheraos and morchas is not a reference to violent method because he has referred to them in the context of non-violent devices such as Satyagraha. It is difficult to say that he has distorted the present situation. All that he has done is to express his feeling on the present situation. It is difficult to understand the argument that the present situation has been distorted by Mr. Chagla. It is difficult to say that he has distorted the present situation. All that he has done is to express his feeling on the present situation. It is difficult to understand the argument that the present situation has been distorted by Mr. Chagla. If sixty crores of Indians are asked to express their views on the present conditions in this country there would be as many shades of opinion. Can we, therefore, say that every opinion or shade of opinion which does not conform to official exposition of the governmental policies is distortion ? Some of the things which mr. Chagla has stated may be falling under the mischief of the Chief Censors guidelines but that is not the test by which we are required to judge the nature and character of Mr. Chaglas speech. We have already expressed the view that the Chief censors guidelines go very much beyond the Statutory Order which in its turn goes very much beyond Rule 48 read with sections 3 and 38. After the Central government made Rule 48 steps taken either by the Central Government or the chief Censor one after another have taken strides after strides beyond the scope of rule 48. The Chief Censors guidelines, in our opinion, are thoroughly useless and worthless because the nation which rises like an impregnable citadel above every individual or group of individuals cannot be apron-stringed to the Chief Censor nor can its politicial education and sovereignty be moulded into the cast of the Chief Censor. Applying the principles which we have laid down while examining the first contention raised by Mr. Daru we find nothing in the report of Mr. Chaglas speech, published by "bhumiputra" which would fall within the mischief of Rule 48 or Section 3 or sub-paragraph (g) of the Statutory Order as interpreted by us. ( 111 ) SO far as the report of the proceedings of the Conference is concerned, it is as innocuous as it can be. The depth of feelings expressed therein furnishes no test to find out that it is capable of disturbing public order or endangering public safety. Irrespective of whether we agree with these two reports or not we cannot gainsay that these two reports published by "bhumiputra" impart to the people politicial education in the recent events which had happened in this country. Irrespective of whether we agree with these two reports or not we cannot gainsay that these two reports published by "bhumiputra" impart to the people politicial education in the recent events which had happened in this country. The chief Censor was, therefore, quite in error in taking exception to these two reports and in passing the impugned order against the petitioners. Even if we were required to examine these two reports not in the light of the guidelines issued by the Chief censor which have no value whatsoever but in light of the entire Statutory Order issued by the Central Government, we do not think these two reports would fall within its mischief because they are incapable of producing disturbance of public order or endangerment of public safety. We, therefore, uphold the second contention raised by Mr. Daru. ( 112 ) SO far as the third contention is concerned, a reference to the two letters addressed by the Chief Censor to all editors on August 5, 1975 and August 19, 1975 shows that the petitioners were not required to submit to the Censor for his prior scrutiny all reports meant for publication in "bhumiputra". The petitioners, therefore, did not submit these two reports to the Censor for his prior scrutiny. They were entitled to follow the norm which the Chief Censor had evolved for all printers, publishers and editors. No action, therefore, could have been taken against the petitioners for violating Rule 48 or any order made thereunder on the ground that these two reports were not submitted to the Censor for his prior scrutiny. When something which is subjected to precensorship is permitted to be published without such precensorship, it means that the printer or publisher or editor has in the first instance to decide whether what he is allowed to publish without prior scrutiny is one which falls within the mischief which the law seeks to suppress. If he comes to the conclusion that it does not fall within the mischief of such a law and publishes it, he cannot be subjected to a penalty for having published without prior scrutiny of the Censor. In the instant case, therefore, the Chief censor could not have taken any actioin against the petitioners under Rule 48 though, all other things given, he could have taken action under any other Rule. In the instant case, therefore, the Chief censor could not have taken any actioin against the petitioners under Rule 48 though, all other things given, he could have taken action under any other Rule. In the instant case, the maximum that can be said is that the petitioners had violated Rule 43 and not Rule 48 for having published those two reports in contravention of law. The action which the Chief Censor has taken against the petitioners is not under Rule 43. If he had issued notice to the petitioners to show cause why action should not be taken against them under Rule 43, they would have been entitled to show a lawful excuse or cause within the meaning of rule 43. The action taken by the Chief censor under Rule 48 therefore even otherwise is absolutely unwarranted. It is needless for us to say that Rule 43 specifies certain defence which a person charged with its contravention can take up. The petitioners did not have any such opportunity. That the policy decision such as one incorporated in the two letters referred to above can be taken has been recognized by the Supreme Court in Shri rama Sugar Industries Ltd. v. Stale of andhra Predesh, A. I. R. 1974 Supreme court 1745. In paragraph 11 of the report the Supreme Court has laid down that it is open to the Government to adopt a policy not to make a grant at all or to make a grant only to a certain class and not to a certain other class, though such a decision must be based on considerations relevant to the subject- matter on hand. The Supreme Court has cited with approval a passage from halsburys Laws of England, Vol. I, 4th edition, para 33, at page 35 which states as follows:"a public body endowed with a statutory discretion may legitimately adopt general rules or principles of policy, to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary or capricious. Nevertheless, it must not disable itself from exercising a genuine discretion in a particular case directly involving individual interests, hence it must be prepared to consider making an exception to the general rule if the circumstances of the case warrant special treatment. These propositions, evolved mainly in the context of licensing and another regulatory powers, have been applied to other situations, for example, the award of discretionary investment grants and the allocation of pupils to different classes of schools. The amplitude of a discretionary power may, however, be so wide that the competent authority may be impliedly entitled to adopt a fixed rule never to exercise its discretion in favour of a particular class of person and such a power may be expressly conferred by statute. "the same principle has been reiterated by the Supreme Court in its later decisions. We do not think it necessary to make reference to more than one decision on this point. In light of the reasons which we have given we find that the third contention which Mr. Daru has raised is well-founded and must be upheld. ( 113 ) THE last contention which Mr. Daru has raised is that the Chief Censor was disqualified from sitting in judgment upon the conduct of the petitioners. According to him, the Chief Censor is so much involved in the implementation and enforcement of precensorship of press that he is biased and is disqualified from sitting in judgment upon the section of the petitioners in publishing these two reports. We do not think this argument raised by Mr. Daru has any substance. If the Chief Censor has any bias, it is official bias which does not disqualify him from performing the duty cast upon him by law. Any person who performs the duties of a Chief Censor and exercises the powers conferred upon him is bound to have that bias. Therefore, the challenge which Mr. Daru has raised against, what he calls the bias on the part of the Chief censor, is really a challenge to the delegation of power made by the Central government to the Chief Censor. The delegation of its power by the Central government to the Chief Censor has not been challenged by the petitioners. Having found that on account of the reasons stated above he would not be able to successfully press his last contention Mr. Daru withdraw it. The delegation of its power by the Central government to the Chief Censor has not been challenged by the petitioners. Having found that on account of the reasons stated above he would not be able to successfully press his last contention Mr. Daru withdraw it. It is, therefore, not necessary for us to examine it. The fourth and last contention raised by Mr. Daru, therefore, fails and is rejected. ( 114 ) IN view of the findings which we have recorded, we allow the petition and declare that sub-paragraphs (c), (d) and (e) of paragraph 1 of the Statutory Order [s. O. 275 (E)] are ultra wires Rule 48 (1) read with Section 3 (1) and Section 38 and, therefore, void. Accordingly we strike them down. We further declare that sub-paragraph (g), in light of the interpretation which we have placed upon it in this judgment, is intra vires Rule 46 (1) read with Section 3 (1) and Section 38. The impugned order by which the petitioners Yagna Mudrila Press and the issues of "bhumiputra" dated 26th october 1975 have been confiscated is null and void and we strike it down. We issue a Writ mandamus directing respondents Nos. 1 and 5 to restore to the petitioners forthwith ownership and possession of Yagna Mudrika Press and the issues of "bhumiputra" which have been confiscated by them and which are the subject-matter of the impugned order. By an interim order made by this Court on this petition possession of the Press was delivered to the petitioners during the pendency of this petition. It is needless for us to say that in pursuance of this final order the petitioners shall be entitled to hold and enjoy the possession of Yagna mudrila Press in their own rights. Rule is made absolute with costs which shall be paid to the petitioners by respondents nos. 1 and 5 only. There shall be no order as to costs of respondents Nos. 2, 3 and 4. Mr. Vakharia applies for a certificate of fitness under Article 133 (1) of the constitution for appealing against this judgment to the Supreme Court. In our opinion, this is a fit case for granting the certificate. We accordingly grant the certificate of fitness under Article 133 (1) to respondents No. 1 and 5 mr. 2, 3 and 4. Mr. Vakharia applies for a certificate of fitness under Article 133 (1) of the constitution for appealing against this judgment to the Supreme Court. In our opinion, this is a fit case for granting the certificate. We accordingly grant the certificate of fitness under Article 133 (1) to respondents No. 1 and 5 mr. Vakharia applies for an interim order to operate for a period of 15 days staying the operation of this judgment. So far as the principal part of the judgment is concerned, we have merely made declarations as to the vires of sub-paragraphs (c), (d), (e) and (g) of paragraph 1 of the Statutory Order. Declarations cannot be stayed. He has not applied for any other interim order. We see no reason to grant the interin order which he aupplies for. Oral Order:mr. Daru yesterday applied orally for a direction to respondents Nos. 1 and 5 restraining them from censoring or withholding the permission to print or publish this judgment or a part of it. Mr. Vakharia objected to it and took time to answer the application made by Mr. Daru. Today he has stated to us that the judgment is not available to the Censor to decide whether he should grant permission to print or publish it or to withhold it. He has further submitted that the Court should not intervene at this stage on the oral application made by mr. Daru because, in his opinion, it would be a premature intervention. He has next submitted that this Court has not struck down the entire Statutory Order and that, therefore, it is still open to the Censor to decide whether the judgment should be allowed to be printed or published under that part of the Statutory Order which still remains in force. We have held that under Rule 48 the Censor has no jurisdiction to censor Court proceedings and that Court proceedings do not and cannot incite people to violence or disturb public order or endanger public safety. Next, under our Constitution the Court interprets the Law and lays it down. The law which we have laid down must hold good at least until the Superior Court takes a different view. The Censor cannot sit in judgment upon our decision and decide which law should be allowed to be made known to the people and which not. Next, under our Constitution the Court interprets the Law and lays it down. The law which we have laid down must hold good at least until the Superior Court takes a different view. The Censor cannot sit in judgment upon our decision and decide which law should be allowed to be made known to the people and which not. It is impossible for us to imagine that a Court proceeding or a judgment of the Court can ever amount to a "prejudicial report" within the meaning of that expression as interpreted by us. The Censor is not above the Court. It is necessary for him to realise that he is subject to the jurisdiction of the Court. What is held ultra wires cannot be allowed to oparate as intra vires under the veil of secrecy. We cannot permit liberty of the people to be under the weight of censorship. We are not inclined to do anything by which deprivation of liberty can be continued even for a moment more. We, therefore, grant Mr. Darus request and direct respondents Nos. 1 and 5, their servants, agents and employees to desist and forbear from censoring or withholding the permission to print or publish this judgment or any part thereof. Mr. Vakharia at the conclusion of this order makes a request that we should stay for a week the operation of the last part of the order which we have dictated just now. For the reasons stated in this judgment and for the reasons which we have stated in the order just now dictated, we are unable to accede to his request. His apprehension that some harm or damage may be done to the people at large by the publication of this judgment or a part thereof is totally unfounded and misconceived. No decision of a Court of law upholding the liberty of a citizen can ever cause any harm or prejudice to anyone. Order accordingly. .