Topic: Madhu Limaye vs Sub-Divisional Magistrate - section 144 of the Crpc is not unconstitutional
Madhu Limaye vs Sub-Divisional Magistrate
Equivalent citations: 1971 AIR 2486, 1971 SCR (2) 711 - Bench: Hidayatullah, M. (Cj), Shelat, J.M., Bhargava, Vishishtha, Mitter, G.K., Vaidyialingam, C.A., Ray, A.N., Dua, I.D. - Citation: 1971 Air 2486 1971 Scr (2) 711 - Date Of Judgment: 28/10/1970
Code of Criminal Procedure (5 of 1898), s. 144 and Chapter VIII-If violative of Art 19 of Constitution.
On the questions: (1) Whether s. 144 and, (2) Ch. VIII of the Criminal Procedure Code, 1898, violated Art. 19(a), (b), (c) and (d) of the Constitution,
HELD (By Full Court) : 1(a) Article 19(2) of the Constitution, which was substituted with retrospective effect by the Constitution (First Amendment) Act, 1951, must be held to have been in force from 26th January 1950. [719 B]
(b) The fiction in the amendment is to make the Constitution be read with the new clause and no other, and a law restricting the freedom in the interests of public order (among others , or in the interest of the general public, must be held to be saved, not as the result of the amendment but because of these available restrictions operating from the inception of the Constitution, that is, from January 26, 1950. Whatever may be said of a law declared unconstitutional before the first Amendment, cannot be said of a law which is being considered today after the First Amendment.[718 G-H; 719 A]
(c) In this Court the doctrine of 'preferred position' for fundamental rights has never found ground. All existing laws are continued till this 'Court declares them to be in conflict with a fundamental right and, the burden is on the person who contends that a particular law has become void after the coming into force of the Constitution by reason of Art. 13(1) read with any of the guaranteed freedoms. The burden is not on the State to prove the reasonableness of the restriction. [721 C-G]
(d) The expression 'in the interest of public order, in Art. 19(2) of the Constitution is wider than 'maintenance of public order', because, a law may not have been designed to directly maintain public order and yet it may have been enacted in the interest of, public order; and 'public order, is capable of taking within itself not only the absence of those acts which disturb the security of the State or the absence of insurrection, riot, turbulence or crimes of violence, but also absence of certain acts, which disturb public tranquility or are breaches of peace. it will not however take in any of the acts which disturb only the seniority of others. [722-A-B; 124 E-H]
Ramnjilal Modi v. State of U.P.  S.C.R. 860, Virendra v. State of Punjab,  S.C.R. 308 and Dr. Ram Manohar Lohia v. State of Bihar,  1 S.C.R. 709, followed. Superintendent, Central Prison Fategarh v. Ram Manahar Lohia,  2 S.C.R. 821, referred to.
(e) The area of detention by a Magistrate under the Code of Criminal Procedure and the area under the laws relating to preventive detention are entirely different. In the case of prevention detention of persons without
trial on the subjective determination of the executive this Court has confined the meaning of the expression 'maintenance of public order' to graver ,episodes. But that consideration need not always apply because local dis- turbances of the even tempo of life also affect 'public order' in the sense of a state of law abidingness vis-a-vis the safety of others.
[725 E-G; 726 A-B]
(f) The gist of action under s. 144 is the urgency of the situation and its efficacy in the likelihood of being able to prevent some harmful consequences. It is not an ordinary power. flowing from administration but a power used in a judicial manner and which can stand 'further judicial scrutiny. As it is possible to act under the section absolutely and even ex-parte the emergency must be sudden, and the consequences sufficiently grave. Therefore, the matter falls within the restrictions which the Constitution itself visualises as permissible in the interest of public order or in the interest of general public. [727 D-F; 728 A- B]
(g) Ordinarily the order would 'be directed against a person found acting or likely to act in a particular, way. But the effect of the order being in the interest of public order and in the interests of general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. A general order may be necessary when the number of persons is so large that the distinction between them and the general public cannot be made. A general order is thus justified, but if the action is too general, the order may be questioned by appropriate reinedies for which there is ample provision in law. A person affected by the order can ask the order to be vacated as against him, he can file a revision and even a petition for issue of a writ. The restraint is temporary, the power is exercised by senior Magistrates who have to make a judicial enquiry and give reasons for the order with an opportunity to an aggrieved person to have it rescinded either by the Magistrate or by superior courts. Therefore, the section is not unconstitutional if properly applied and the fact it may be abused is no ground for striking it down. If it is abused, the remedy is to question the exercise of the power as being outside the grant of law.
[728 F-H; 729 A-C]
Babulal Parate v. State of Maharashtra,  3 S.C.R. 423 and State ,of Bihar v. K. K. Misra,  3 S.C.R. 423, referred to.
2(a) (Per Hidayatullah, C.J., Shelat, Mitter, Vaidialingam, Ray and Dua, JJ.) Both ss. 106 and 107 in Ch. VIII of the Code, are counter parts of the same policy, the first applying when by 'reason of the conviction of the person, his past conduct leads to an apprehension for the future and the second applying where the Magistrate, on information, is of the opinion that unless prevented from so acting, a person is likely to act to the detriment of public peace and public tranquility. Section 107 enables certain specified class es of Magistrates to make an order calling upon a person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. The condition for taking action is that the Magistrate is informed and he is of the opinion that there is sufficient ground for proceeding that a person is likely to commit a breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquillity. The section is aimed at persons who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance to the public tranquillity. [729 H; 730 A-B, F-G]
The procedure for taking action is set out in the remaining sections of the Chapter. The gist of the Chapter is the prevention of crimes and ,disturbances of public tranquillity and breaches of the peace. The action 713
being preventive is not based on overt acts but on the potential danger to be averted. But the provision is not a law for detention contemplated by Art. 22. Primarily, the provisions enable the Magistrate to require the execution of a bond and not to detain a person. Detention results only on default of the execution of a bond. The person sought to be bound over has rights which the trial of a summons case confers on an accused. The law requires the Magistrate to state his reasons and the order is capable of being questioned in superior courts.- These provisions are thus essentially conceived in the interest of public order and in the interest of the general public. If the prevention of crimes and breach of peace and disturbance of public tranquillity are directed to the maintenance of the even tempo of community life they are in the interest of public order, and there is nothing contrary to Art. 19(1), (a), (b), (c) and (d), because, the limits of the restrictions are well within cls. (2), (3), (4) and (5) of the Article. Therefore, the Chapter is constitutionally valid. [729 G; 734 D-H; 735 H; 736 A-C]
(b) Section 117(3) enables the Magistraite to ask for an interim bond pending the completion of inquiry by him. Section 117(1) and (2) require the Magistrate to inquire into the truth of the information that the person brought before him is likely to commit a breach of the peace or disturb the tranquillity. Hence, the Magistrate must proceed to inquire into the truth of the information and it is only after Prima facie satisfying himself about the truth of the information and after recording his reasons in writing can the interim bond be asked for. Therefore, it is not open to a Magistrate to adjourn the case without' entering upon an enquiry and in the interval send the person to jail if he fails to furnish a bond.
[732 H; 734 r)-F]
As the liberty of a person is involved and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of the Magistrate. It would make the Magistrates action administrative if he were to pass an order for an interim bond without entering upon the inquiry and at least prima facie enquiry into the truth of the information on which the order calling upon the person to show cause is based. [733 G; 735 A-B]
In re,: Muthuswami, I.L.R.  Mad. 335 (F.B.), In re : Venkatasubba Reddy, A.I.R. 1955 A.P. 96; Jagdish Prasad v. State, A.I.R. 1957 Pat. 106; Jalaluddin Kunju v. State, A.I.R. 1952 Tr. & Co. 262, Shravan Kumar Gupta v. Superintendent, District Jail, Mathura & Ors., A.I.R. 1957 All. 189, Jangir Singh v. State, A.I.R. 1960 Punj. 225; Ramgowda & Ors. v. State of Mysore, A.I.R. 1960 Mys. 259 and Ratilal Jasral v. State, I.L.R.  Bom. 385, approved. Emperor v. Nabibux & Ors. A.I.R. 1942 Sind 86, Dulal Chandra Mondal v. State, A.I.R. 1953 Cal. 238, Gani Ganai & Ors' v. State, A.I.R. 1959 J. & K. 125 and Laxmi Lal v. Bherulal A.I.R. 1958 Raj. 349, overruled.
(c) There is no room for invocation of ss. 55 or 91 of the Code of Criminal Procedure in considering the effect of Chapter VII. [736 D]
Vasudeo Ojha & Ors. v. State of U.P. A.I.R. 1958 All. 578, overruled.
(d) Bail is only for continued appearance of a person and not to prevent him from committing certain acts. To release a person being proceeded against under ss. 107/112 of the Code is to frustrate the very purpose of the proceedings unless his good behavior is ensured by taking a bond in that behalf. [736 F-G]
Per Bhargava, J. : (a) Under s. 107 the Magistrate takes action when he is informed that any person is likely to commit a breach of peace or disturb the public tranquillity only after forming an opinion that there is sufficient ground for proceeding against him. He cannot start proceed- ings merely on information. The Magistrate can form his opinion on the basis of the information supplied to him if he finds that the information given is in sufficient detail and reliable enough. If the information is, not sufficient, it will be his duty to hold further inquiry and satisfy himself that it is a fit case where action should be taken because sufficient grounds exist. It is after the Magistrate has taken these steps that he can proceed to make the order under s. 112. When making that order he has to record in it in writing the substance of the information received which necessarily means the part of the information which was the basis.of his opinion that sufficient grounds exist for initiating the proceedings. It is at this preliminary stage that the Magistrate is thus required to ensure that a prima facie case does exist for the purpose of initiating proceedings against the person who is to be called upon to furnish security for keeping the peace. [737 C-H]
After the order under s. 112 has been issued the procedure under ss. 113 and 114 has to be followed. The proceedings to be taken thereafter are laid down in s. 117(1) which requires that as soon as the order under s. 112 has been read or explained to the person in court under s. 113 or to the person who is brought before the Magistrate under s. 114, the Magistrate has to proceed to inquire into the truth of the information upon which the action has been taken and to take further evidence as may be necessary. This inquiry has to be held in the manner prescribed for trial of summons cases. Thus, s. 117(1) contains a mandatory direction to the Magistrate to start proceedings of inquiry as soon as the person in respect of whom the order under s. 112 has been made appears before him. This provision cannot, however, be interpreted as requiring that the inquiry must begin immediately when the person appears in court, because, it is impracticable to do so. It is uncertain as to when a person will appear in court and the Legislature could not have contemplated that in such contingencies witnesses must be kept in readiness in the court awaiting the appearance of the person concerned. Further, since the result of the inquiry may be that the person concerned has to execute a bond, with the risk of losing his liberty if he defaults, he is entitled to be represented by a lawyer and be can legitimately ask for a reasonable adjournment to enable him to engage a lawyer. Therefore, the proper interpretation of s. 117(1) is that the inquiry must begin as soon as it is practicable, and the Magistrate would be committing breach of the direction contained in this sub-section if he postpones the inquiry without sufficient reasons. In such a situation, the Magistrate can direct the person in respect of whom the order under s. 112 has been made to execute a bond pending completion of the inquiry under s. 117(1). [738 A-B, C-D, E-H; 738 A-C]
(b) This power under s. 117(3) is usually invoked in emergent cases where the Magistrate has at an earlier stage, issued the warrant under s. 144, where breach of peace cannot be prevented otherwise than by immediate arrest. The Legislature, having empowered a Magistrate to issue a warrant of arrest, naturally proceeded further to give him power in such cases to direct that bond for keeping peace be furnished pending completion of the inquiry. The expression 'completion of the inquiry must be interpreted as the period covered from the beginning of the inquiry until its conclusion. Such a power is obviously necessary where there, is immediate danger of breach of the peace and immediate measures are necessary
for its prevention. When the inquiry is held the correctness of the information and the tentative opinion formed ex parte under s. 107 will be
properly tested after going through the judicial procedure prescribed, and, if it is found that there was no justification, the order would be revoked. Therefore, the grant of the power to the Magistrate is a reasonable restriction on the personal liberty of a citizen. It is needed for prevention of crimes and it can only be effective if its exercise is permitted on the basis of opinion formed by a competent authority that immediate measures are required. [739 G-H; 740 A-D]
(c) A person may be detained in jail even prior to a court arriving at a judicial finding, but such a procedure is not only reasonable but essential. The power is similar to that given to a Magistrate to order the detention, as an undertrial prisoner, of a person accused of a cognizable offence even though, in law, he is deemed to be innocent. [740 E-F]
(d) Further, the validity of the provision should not be judged from the likelihood of the abuse of the power by the Magistrate. If the hearing is unnecessarily delayed while keeping the person in detention, the proceedings are liable to be quashed on the ground that the Magistrate has not complied with the requirements of s. 117(1). [741 A-C] Therefore, the power under s. 117(3) can be exercised without the Magistrate recording evidence and finding a prima facie case after starting the inquiry under s. 117(1). But, even on this interpretation s. 117(3) is valid and is a reasonable restriction under Art. 19(2), (3), (4) and (5). [741 E]
ORIGINAL JURISDICTION Writ Petitions Nos. 77 and 307 of 1970.
Petition under Art. 32 of the Constitution of India. W.P. No. 77 of 1970.
Madhu Limaye,appeared in person.
Nur-ud-din Ahmed, K. P. Varma and D. Goburdhun, for the respondents Nos. 1 to 4.
Niren De, Attomey-General, R. H. Dhebar, H. R. Khanna and S. P. Nayar, for the Attorney-General for India. W.P. No. 307 of 1970.
Madhu Limaye, 'appeared in person.
Rajendra Chaudhuri and Pratap Singh, for petitioner No. 2. C. K. Daphtary, L. M. Singhvi and O. P. Rana, for the respondents.
Niren De, Attorney-General for India, R. H. Dhebar, H. R. Khanna, S. P. Nayar and R. N. Sachthey, for the Attorney- General' for India and Union of India.
S. C. Agarwal and D. P. Singh, for interveners Nos. I to
A. S. R. Chari, S. C. Agarwal and D. P. Singh, for intervener Nos. 4 and 7.
S. C. Agarwal, D. P. Singh and Asif Ansari, for intervener Nos. 4 and 7.
Shiva Pujan Singh, for intervener No. 6.
D. P. Singh, for intervener No. 8.
The Judgment of Hidayatullah C.J., J. M., Shelat, G. K. Mitter, C. A. Vaidialingam, A. N. Ray and I. D. Du , JJ., was delivered by Hidayatullah C.J. V. Bhargava J. delivered a partly dissenting opinion.
Hidayatullah C.J. During the hearing of these petitions the constitutional validity of s. 144 and Chapter VIII of the Code of Criminal Procedure was challenged and this Special Bench was nominated to consider the issue. Lengthy arguments were addressed to us by the petitioner and several interveners. The matter, as we shall show later, lies in a narrow compass. At the end of the arguments we announced our conclusion that the said provisions-of the Code, properly understood, were not in excess of the limits laid down in the Constitution, for restricting the freedoms guaranteed by Art. 19 (1) (a) (b) (c) and (d) We reservedour reasons and now we proceed to give them.
We are required to test the impugned provisions against the first four sub-clauses of the first clause of the nineteenth article. We may accordingly begin by reading the sub- clauses
19. (1) All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble Peaceably and without arms; (c) to form associations or union;and
(d) to move freely throughout the territory of India;
These sub-clauses deal with four distinct but loosely related topics. They preserve certain personal as well as group freedoms. They allow an individual freedom of speech and movement and as a member of a group (and for the group also) the same freedoms plus the right of assembly and formation of associations and unions. Although the guarantees appear to be in absolute terms, in reality they are not so. A number of restrictive exceptions are engrafted upon each of the freedom previously guaranteed. The restrictions are contained in cls. (2), (3), (4) and (5) and are related respectively to sub-cls. (a), (b), (c) and (d) of the first clause. Clause (5) covers sub-cls. (e) and 717
(f ) of the first clause also, but the additional fact does not concern us. Of these, cl. (2), as it stands today, was not originally in the Constitution but was substituted with retrospective effect by s. 3 of the Constitution (First Amendment) Act 1951. Strictly speaking there never was any clause (2) other than the one we have before us today unless we were to hold that the first Amendment was either not valid or not retrospective. We were invited to do so and to reconsider,, the decision in I. C. Golak Nath & Ors. v. State of Punjab & Anr.(1) but we declined because its validity was not doubted at any stage in that case. The valdity of the Amendment therefore cannot now be questioned. As a result we are not required to read the former cl. (2) which never existed. Clauses (2), (3) and (4) were further amended by the insertion of the words"The sovereignty and integrity of India" in each of them, by S. 2 of the Constitution (Sixteenth Amendment) Act 1963. The clauses as they exist today read
"(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and
(5) Nothing in sub-clause (d), (e) and (f ) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the
(1) (1967) 2 S.C.R. 762.
exercise of any of the rights conferred by the said subclauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe."
All that is necessary to be decided by us is whether these clauses save the impugned provisions of the Code as reasonable, and valid restrictions upon the guaranteed freedoms. Before we proceed to do so, we may dispose of a very ingenious argument by Mr. A. S. R. Chari which may be summarised thus:
"The original clause (2) had to be read on the commence- ment of the Constitutionand it was as follows (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates, or prevent the State from making any law ,relating to, libel, slander, defamation, contempt of 'Court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow, the State. This clause did not allow restrictions to be placed in the interests of public order on which the impugned provisions are justified today. Admittedly the other parts of clause (2) are not relatable to the impugned provisions and cannot save them without the aid of power exercisable in the interests of public order. Therefore on the coming into force of the Con- stitution the impugned provisions of the Code became void, that is to say, were dead, and could not come to life, again when the Constitution was amended. They had to be reenacted".
Parties joined issue on whether the provisions were dead, that 'is to say, were erased from the Statute Book and required re-enactment, or were merely eclipsed, that is to say, remained ineffective till the shadow of the original cl. (2) was lifted. We do not propose to enter into this debate. Assuming that the Constitution could be amended with retrospective effect (a point not free altogether from difficulty), the purpose of the amendment is 'to create a fiction. Whatever may be said of a law declared unconstitutional before the First Amendment, cannot be said of a 'law which is being considered today after the First Amendment. 'The fiction in the amendment is to make the Constitution be read with the new clause and no other and a law restricting the freedoms in the interests of public order (among others) or in ,the interests of the general public must be held to be saved, not
as a result of the amendment, but because of these available restrictions operating from the inception of the Constitution. Therefore, although we consider the matter today, after much history has been written and then unwritten by retrospective amendments of the Constitution (assuming this to be permissible), we read the protection of amended cl. (2) as available from January 26, 1950 without a break. The fiction, if given full effect leads to no other conclusion. In this- view of the matter we do not find it necessary to refer to the rulings of this Court where the doctrine of eclipse is considered in relation to provisions of laws declared void by Courts in the interval. That reasoning ex facie cannot apply to this case. The result, therefore, is that we are only required to discuss whether the provisions of S. 144 and Chapter VIII of the Code can be said to be in the interests of public order in so far as the rights of freedom of speech and expression, rights of assembly and formation of associations and unions are c oncerned and in the interests of the general public in so far as they curtail the freedom of movement throughout the territory of India.
In this connection only two topics arise for close study. Firstly what is meant by the expressions "in the interest of public order" occurring in cls. (2), (3) and (4) and "in the interests of the general public" occurring in cl. (5). Secondly to what extent the provisions of s. 144 and Chapter VIII come within the protection.
In so far as s. 144 of the Code is concerned this Court in Babulal Parate v. State of Maharashtra,(1) had held that the section was intra vires the Constitution but doubts were raised because the judgment of this Court spoke in terms of in the interest of maintenance of public order' or 'duty of maintenance of law and order' when the second clause of Art. 19 speaks of 'in the interest of public order. Differences between the import of these several expressions were pointed out in several cases from the time the earliest cases of this Court Ramesh Thappar v. State of Madras(2) and Brijbhushan v. State of Delhi(3) down to Dr. Ram Manohar Lohia v. State of Bihar & Ors. (4 ) and some later cases "lowing that case. The effect of Babulal Parate's(1) case was claimed to be lost and it was submitted that the matter needed reconsideration. Although the topic was once again before this Court in State of Bihar v. K. K. Misra & Ors. (5) when the second part of sub-s. (6) of the section was declared invalid, the decision in Babulal Parate's(1) case was not considered in the light
(1)(1961) 3 S.C.R. 423.
(2) (1950) S.C.R. 594.
(3) (1950) S.C.R. 605.
(4) (1966) 1. S.C.R. 709.
(5) (1969) 3. S.C.R. 337.
of other cases of this Court mentioned above. Therefore this Special Bench was constituted to review the whole position in relation to s. 144 and Chapter VIII of the Code. The petitioner and the interveners began arguments by invok- ing the doctrine of preferred-position for the Fundamental Rights. particularly the right to freedom of speech and expression. Mr. Garg, an intervener, squarely based himself on the American doctrine. Mr. Chari for another-intervener was indirect. His submission is that the Courts, when faced with the question whether any legislative or executive action is constitutional or not, must range themselves on the side of the Fundamental Freedoms and consider whether the restrictions are reasonable or not. In other words, Courts must place the burden on the State to prove the reasonableness of the restriction. A word may, therefore, be said here about how the Court must proceed to examine a challenge to the constitutional validity of laws vis-a-vis a fundamental freedom.
The preferred-position doctrine in America developed by the Roosevelt Court through Justices Black, Douglas, Murphy, Stone and Rutledge, envisaged that any law restricting freedom of speech, press, religion or assembly must be taken on its face to be invalid till it was proved to be valid. The doctrine was perhaps the result of a remark by Justice Stone in United States v. Carolena Products Co.(1). But it has most frequently been used by Justices Black and Douglas in recent) years after the deaths of Justices Murphy and Rutledge in 1949. Its history is given by Justice Frankfurter in his concurring opinion in Kovacs v. Cooper(2), in which he rejected it. Justice Rutldege, in Thomas v. Collins(3) stated it in these words: "This case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the States' power begins Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable freedoms secured by the first Amendment. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil
(1) (1938) 304 V.S. 144. (2)
(1949) 336 U.S. 77.
(3) (1944) 323 U.S. 516.
to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation".
The result of the doctrine was to shift the burden of proof on the shoulders of those defending the legislation, without raising in their favour the presumption of the validity of legislation. It, however, has been abandoned by the majority of Judges, after 1949 when Justices Clark and Minton replaced Justices Murphy and Rutledge. Justice Frankfurter in the Kovac's case(1) described it as 'a complicated process of constitutional adjudication by a deceptive formula'. It is sufficient to say that the preferred position doctrine has not the support of the Supreme Court of the United States and the unreasonableness of the law has to be established.
In this Court the preferred-position doctrine has never found ground although vague expressions such as 'the most cherished rights', 'the inviolable freedoms' sometimes occur. But this is not to say that any one Fundamental Right is superior to the other or that Art. 19 contains a hierarchy. Pre-constitution laws are not to be regarded as unconstitutional. We do not start with the presumption that, being a pre-constitution law, the burden is upon the State to establish its validity. All existing laws are continued till this Court declares them to be in conflict with a fundamental right and, therefore,, void. The burden must be placed on those who contend that a particular law has become void after the coming into force of the Constitution by reason of Art. 13(1) read with any of the guaranteed freedoms.
The present doubt has arisen With regard to Babulal Parate's case(1), as stated earlier, by not adhering to the phraseology of Art. 19(2) where the words 'In the interest of public order' appear. It is these words which need an exposition and not the expression, in the interest of maintenance of law and order', which are not the words of the article. To expound the meaning of the right expressions we are required to go over some earlier deci- sions of this Court.
When Ramesh Thappar v. State of Madras(3) and Brijbhushan v. State of Delhi(4) were decided, the original clause (2) was there. It did not include the phrase 'in the interest of public order'. The validity of statutes was, therefore, tested against the words 'the security of the.State'. After the retrospective amendment substituted a new clause, the matter fell to be considered in relation to 'public order. In Ramjilal Modi v. State of Uttar Pradesh(1) it was pointed out that the language employed by the Constitu- (1) (1949) 336 U.S. 77. -(2) (1961) 3 S.C.R. 423. (3) (150) S.C.R. 594. (4) (1950) S.C.R. 605. (5)  S.C. R.860.
694 Supp. CI/71
tion, that is to say, 'in the interest of' was wider than the expression 'for the maintenance of' and the former expression made the ambit of the protection very wide. It was observed that 'a law may not have been designed to directly maintain public order and yet it may have been enacted in the interest of public order'. This was , again reaffirmed in Virendra v.State of Punjab(1) distinguishing on the same ground the two cases before the First Amendment. The following passage (p. 323) may be quoted: "It will be remembered that Art. 19(2), as it was then worded, gave protection to a law relating to any matter which undermined the security of or tended to overthrow the State. Section 9(1-A) of the Madras Maintenance of Public Order was made 'for the purpose of securing public safety and the maintenance of public order'. It was pointed out that whatever end the impugned Act might have been intended to subserve and whatever aim its framers might have had in view, its
application and scope could not, in the absence of litniting words in the statute itself. be restricted to the aggravated form of activities which were calculated to endanger the security of the State. Nor was there any guarantee that those officers who exercised the Power under the Act, would, in using them, discriminate between those who acted prejudicially to the security of the State and those who did not. This
consideration cannot apply to the case now under consideration. Article 19(2) has been amended so as to extend its protection to a law imposing reasonable restrictions in the interests of public order and the language used in the two sections of the impugned Act quite clearly and explicitly limits the exercise of the powersconferred by them to the purposes specifically mentioned in the sections and to no other purpose".
We may say at once that the distinction has our respectful concurrence.
Then came the decision in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia(2). In that case, the expression 'in the interest of public order fell to be considered. Subbarao, J. ('as he then was) traced the exposition of the phrase, particularly the expression 'public order. He referred first to the observations of Pataniali Sastri, J. (later C.J.) in Rimesh Thappar's case(") (supra) distinguishing offences involving disturbances of public tranquillity which the learned Judge said were in theory offences against public order of a purely local significance and other forms
(11)  S.C.R. 308. (12) (1960) 2 S.C.R.
(3) (1950) S.C.R. 594.
of public disorders of more serious and aggravated kind calculated to endanger the security of the State. Subbarao, J. also quoted the observation of Fazl Ali, J. in Brij Bhushan's case(1) :
"When we approach the matter in this way, we find that while 'public disorder' is wide enough to cover a small riot or an affray and other cases where peace is disturbed by or affects, a small group or persons, public unsafety' (or insecurity of the State) will usually be connected with serious internal disorders and such disturbances of public tranquillity was jeopardises the security of the State" (p. 612).
Subbarao, J. on the strength of these observatinns concluded that public order' was the same as 'public peace and safety' and went on to observe :
"Presumably in an attempt to get over the effect of these, two decisions, the expression 'Public order' was inserted in Art. 19 (2) of the Constitution by the Constitution (First Amendment) Act, 1951, with a view to bring in offences involving breach of purely local significance within the scope of permissible restrictions under cl. (2) of Art. 19".
He quoted the observations of the Supreme Court of the United States in Cantwell v. Connecticut(1) to establish that offences against 'Public order' were also understood as offences against public safety and public peace. He referred to a passage in a text-book on the American Constitution which states :
"In the interests of public order the State may prohibit and punish the causing of 'loud and raucous noise, in streets and public places by means of sound amplifying instruments, regulate the hours and place of public discussion, and the use of the public streets. for the purpose of exercising freedom of speech; provide for the expulsion of hecklers from meetings and assemblies, punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere 'public inconvenience, annoyance or unrest'."
He referred also to the Public Order Act 1936 in England.. Subbarao, J. however, distinguished the American and English precedents observing :
"But in India under Art. 19 (2) this wide concept of 'Public order' is split up under different heads. It
(1)  S.C.R. 605.
(2) (1940) 310 U.S. 296.
enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. All the grounds mentioned therein can be brought under the general head 'public order' in its most comprehensive sense. But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other. 'Public order' is there- fore something which is demarcated from the others. In that limited sense, particularly in view of the history of the amendment, it can be postulated that 'public order' is synonymous with public peace, safety and tranquility".