State of Madras v V.G. Row (1952)

This is the classical authority on how reasonableness is to be tested under Art. 19, and it is also the first case in which a law restricting the freedom guaranteed by Art. 19(1)(c) was struck down by the Supreme Court.

Two things come out of it, and both are staple examination material.

The first is the test of reasonableness: there is no abstract standard; the test is applied statute by statute, weighing the nature of the right, the purpose of the restriction, the extent and urgency of the evil, the disproportion of the imposition and the prevailing conditions, with a frank acknowledgment of the part played by the judges' own values and of the self-restraint that must temper it. This passage is quoted in every later case on reasonable restrictions.

The second is specific to the freedom of association: a law which lets the executive declare an association unlawful on its own subjective satisfaction, shutting out judicial inquiry into the facts, is an unreasonable restriction, and an Advisory Board is no substitute for a judicial inquiry.

For the labour paper, the second holding is the constitutional guarantee behind trade union existence: a union cannot be extinguished by executive fiat on grounds whose factual foundation no court may examine.

By Government Order No. 1517, Public (General) Department, dated 10 March 1950, the State Government declared a society called the People's Education Society, Madras, registered under the Societies Registration Act 1860, to be an unlawful association. The Order recited that in the opinion of the State Government the association "has for its object interference with the administration of the law and the maintenance of law and order", and constituted a danger to the public peace, and purported to be made under s. 16 of the Indian Criminal Law Amendment Act 1908.

No copy of the Order was served on the respondent or on any other office-bearer of the society; it was notified in the official Gazette as the Act required.

The declared objects of the Society, as set out in the respondent's affidavit, were to encourage, promote, diffuse and popularise useful knowledge in all sciences and more especially social science; to encourage, promote, diffuse and popularise political education among people; to encourage, promote and popularise the study and understanding of all social and political problems and bring about social and political reforms; and to promote, encourage and popularise art, literature and drama. The Government's counter-affidavit asserted that, on information received, the Society was actively helping the Communist Party in Madras — itself declared unlawful in August 1949 — by using its funds through its Secretary for propaganda on the Party's behalf, and that its declared objects were intended to camouflage its real activities.

The respondent, the general secretary of the Society, applied to the High Court on 10 April 1950 under Art. 226, complaining that the Act and the Order infringed his fundamental right under Art. 19(1)(c) to form associations or unions. A Full Bench of three Judges (Rajamannar C.J., Satyanarayana Rao and Viswanatha Sastri JJ.) allowed the application on 14 September 1950 and granted a certificate under Art. 132. The State appealed.

Because the Madras Amendment Act was passed on 12 August 1950, while the petition was pending and shortly before it was heard on 21 August 1950, the issues fell to be determined in the light of the original Act as amended; by s. 6 of the amending Act, notifications already issued and not cancelled took effect as if issued under the amended s. 15(2)(b), subject to a supplementary notification and the new procedure.

Before amendment, s. 15(2) defined an "unlawful association" as one which encourages or aids persons to commit acts of violence or intimidation, or of which the members habitually commit such acts (clause (a)), or which has been declared unlawful by the Provincial Government under the powers conferred (clause (b)); and old s. 16 empowered such a declaration where the Government "is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace".

The amending Act substituted a new clause (b) covering an association declared unlawful by notification "on the ground (to be specified in the notification) that such association" (i) constitutes a danger to the public peace, or (ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object.

New s. 16 required the notification to specify the ground on which it is issued, the reasons for its issue and such other particulars as might have a bearing on the necessity for it, and to "fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification"; but nothing in that sub-section was to require the Government to disclose any facts which it considered against the public interest to disclose.

Section 16-A required the Government, after the time for representations expired, to place the notification and any representations before an Advisory Board, which might call for further information and was to report; if the Board found there was no sufficient cause for the notification, the Government was required to cancel it.

Section 17, unamended, prescribed imprisonment or fine or both for membership or management of an unlawful association, for taking part in its meetings and for making, receiving or soliciting contributions for its purposes. Sections 17-A, 17-B and 17-E provided for notifying and taking possession of places used for the purposes of an unlawful association, for forfeiting movables found there, and for forfeiting the association's funds, in each case on the opinion or satisfaction of the Government or its officers; s. 17-F barred the jurisdiction of civil courts save as expressly provided.

The dropping of the words "in its opinion" from the amended provision prompted argument as to whether the grounds in s. 15(2)(b) were justiciable. The Court observed that if the factual existence of those grounds could be inquired into in a court of law "the restrictions sought to be imposed on the right of association would not be open to exception, but then the Government would apparently have no use for section 15 (2)" (b). The Attorney-General contended that incorporating the grounds in a definition clause which made a Government declaration the test of unlawfulness rendered the words unnecessary, that the opinion or satisfaction of the Government remained the determining factor under ss. 17-A, 17-B and 17-E, and that the Advisory Board procedure pointed the same way. The Court found that the contention was not without force; it was not contested for the respondent, and it was accordingly taken "that the test under section 15 (2) (b) is, as it was under the old section 16, a subjective one and the factual existence or otherwise of the grounds is not a justiciable issue."

Before turning to reasonableness the Court made observations that are quoted as often as the test itself. Our Constitution, unlike the American, "contains express provisions for judicial review of legislation as to its conformity with the Constitution". If the courts in this country face up to that task, "it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution." This is especially true of the fundamental rights, as to which this Court "has been assigned the role of a sentinel on the qui vive." While the Court naturally attaches great weight to the legislative judgment, "it cannot desert its own duty to determine" finally the constitutionality of an impugned statute. These remarks were ventured because it had been suggested in some quarters that the courts in the new set-up were out to seek clashes with the legislatures.

Article 19(4) permits reasonable restrictions on the right conferred by Art. 19(1)(c) in the interests of public order or morality. It was not disputed that the restrictions were imposed in the interests of public order; the question was whether they were reasonable.

The Court recalled Dr Khare v State of Delhi, where four of five Judges had held that both the substantive and the procedural aspects of an impugned restrictive law must be examined from the point of view of reasonableness — the Court considering "not only factors such as the duration and the extent of the" restrictions, "but also the circumstances under which and the manner in which their imposition has been authorised."

Then comes the celebrated passage. "It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned", and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. "The nature of the right alleged to have been infringed, the underlying purpose of the" restrictions imposed, "the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." And, with unusual candour: "In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case. it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part", the limit to their interference with legislative judgment being dictated only by "their sense of responsibility and self-restraint" and by the sobering reflection "that the Constitution is meant not only for people of their way of thinking but for all", and that the majority of the elected representatives of the people, in authorising the restrictions, considered them to be reasonable.

The High Court had held the restrictions unreasonable on three narrower grounds: the inadequacy of publication of the notification; the omission to fix any time limit for the Government to send the papers to the Advisory Board or for the Board to report, with no safeguard against enforcement of the penalties meanwhile; and the denial to the aggrieved person of any right to appear before the Board in person or by pleader. Satyanarayana Rao J. added a ground under Art. 14, on which the other Judges did not agree, and Viswanatha Sastri J. held the forfeiture provisions void, on which the others expressed no opinion. The Supreme Court agreed with the conclusion but rested its decision "on a broader and more fundamental ground".

That ground was the exclusion of judicial inquiry. The right to form associations or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fields, that vesting authority in the executive government to restrict the right without allowing the grounds "both in their factual and legal aspects" to be duly tested in a judicial inquiry is a strong element which must be taken into account in judging reasonableness; "for, no summary and what is bound to be a largely one-sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry."

The proposition was then stated generally, and it is the sentence to carry into the examination hall: "The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights."

Preventive detention was distinguished. A.K. Gopalan v State had upheld deprivation of personal liberty by such means, but only because the Constitution itself sanctions laws providing for preventive detention, as to which no question of reasonableness can arise given the language of Art. 21; and Kania C.J. had there quoted Lord Finlay in Rex v Halliday that "the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based".

The Attorney-General relied heavily on Dr Khare's case, where subjective satisfaction as to the necessity of externing a person, coupled with a reference to an Advisory Board whose opinion was not binding, had been held by a majority to be a reasonable procedure for restricting the right under Art. 19(1)(b); a fortiori, he said, where the Board's report is binding. The Court disagreed, on four grounds.

First, externment, like preventive detention, "is largely precautionary and based on suspicion"; indeed the same section of the East Punjab Public Safety Act authorised both for the same purpose. Both involve an element of emergency requiring prompt steps against apprehended danger, so that authority must be vested in the Government to act on its own responsibility. Those features are absent from the grounds in s. 15(2)(b), which "taken by themselves, are factual and not anticipatory or based on suspicion": an association may be declared unlawful because it constitutes a danger, or has interfered or interferes with the maintenance of public order, or has such interference for its object. "The factual existence of these grounds is amenable to objective determination by the court", quite as much as the grounds in clause (a), as to which the Attorney-General conceded that the Government would have to establish the facts. The Court was "unable to discover any reasonableness in the claim of the Government in" seeking, "by its mere declaration, to shut out judicial enquiry into the underlying facts under clause (b)."

Second, the East Punjab Public Safety Act was a temporary enactment in force for a year, orders under it expiring with it, whereas the impugned Act "is a permanent measure, and any declaration made thereunder would continue in operation for an indefinite period until the Government should think fit to cancel it."

Third, although the Advisory Board procedure here was the better safeguard, the impugned Act suffered "from a far more serious defect in the absence of any provision for adequate communication of the Government's notification under section 15 (2) (b) to the association and its members or office-bearers." No personal service on an office-bearer or member, no service by affixture at the association's office and no other mode of proclamation at the place where it carries on its activities was prescribed. Publication in the official Gazette, "whose publicity value is by no means great", may not reach the members; if the time fixed expired before they knew of the declaration, their right of making a representation — "which is the only opportunity of presenting their case" — would be lost. Yet the consequences are most serious, "for, their very membership" thereafter "is made an offence under section 17". The Court did not decide whether want of knowledge would be a defence to a prosecution, because "the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the association and its members or office bearers, may well be considered sufficient to render the imposition of" restrictions by such means unreasonable. An externment order stands differently, since provision is made for personal or other adequate service on the individual concerned.

Fourth, and more generally, a decision on restrictions imposed on one of the rights in Art. 19(1) "cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness", since the conclusion must depend on the cumulative effect of the varying facts and circumstances of each case.

Section 15(2)(b) of the Criminal Law Amendment Act 1908, as amended by the Criminal Law Amendment (Madras) Act 1950, imposes restrictions on the fundamental right to form associations guaranteed by Art. 19(1)(c) which are not reasonable within Art. 19(4); it "falls outside the scope of authorised restrictions under clause (4) of article 19" and is therefore unconstitutional and void. The appeal was dismissed with costs, so that the Government Order declaring the People's Education Society unlawful stood quashed.

In judging whether a restriction on a fundamental right is reasonable, both the substantive and the procedural aspects of the impugned law must be examined; the test is applied to each individual statute, no abstract or general standard being possible, and the nature of the right, the purpose of the restriction, the extent and urgency of the evil, the disproportion of the imposition and the prevailing conditions must all enter into the judicial verdict, tempered by judicial self-restraint and respect for the legislative judgment. Applying that test, a law which allows the executive to declare an association unlawful upon its own subjective satisfaction, with penal consequences for membership, and which excludes judicial inquiry into the factual existence of the grounds, is not a reasonable restriction under Art. 19(4); an Advisory Board, however constituted and however binding its verdict, is no substitute for a judicial inquiry. The absence of any provision for adequate communication of such a declaration to the association and its members is an additional and serious defect. Decisions on one of the freedoms in Art. 19(1) are of limited value as precedents on another, since the conclusion turns on the cumulative effect of the facts of each case.