V. Balasubrahmanyan, J.
1. This group of writ petitions challenges the validity of certain orders of pre-censorship passed by the censoring authorities on three newspapers. W.P. Nos. 388, 663, 846, 992 and 1909 have been filed in regard to pre-censorship orders directed against a Tamil daily by name 'Murasoli'. in W.P. No. 1909 of 1976 the prayer, as amended, is for quashing (i) a statutory order of the Government of India dated 23rd June, 1976 passed in exercise of its powers under Rule 48 (1) of the Defence and Internal Security of India Rules, 1971, and (ii), an order passed by the State Censor on 24th June, 1976 in exercise of his powers under Rule 48(1)(aa) of the Defence of Internal Security of India Rules, 1971. The other writ petitions filed on behalf of 'Murasoli' relate to individual orders of the Censoring Officer in respect of particular matters sought to be published in that daily. Mr. K.K. Venugopal appearing for the petitioner in the batch of writ petitions relating to 'Murasoli', however, argued the questions arising in W.P. No. 1909 of 1976 as covering the issues raised in the other writ petitions.
2. W.P. No. 7267 of 1975 has been filed by the Editor of a Tamil daily going under the name 'Vidivelli'. The relief prayed for in the writ petition is to issue an order or direction to the Union of India and the Press Censor Officer, Madras, directing them to forbear from censoring the publication of the daily 'Vidivelli' of news, comments, opinions etc., expressive of a political party called the Tamil Nadu Congress Organisation. Mr. U.N.R. Rao, learned Counsel appearing for 'Vidivelli', merely adopted the contentions put forward by Mr. K.K. Venugopal in regard to the other group of writ petitions.
3. W.F. No. 1937 of 1976 is filed by a periodical called 'Theekkadir' which was formerly a Tamildaily but had been converted as a weekly from 1976. In this writ petition also the relief claimed is against the orders of the Censor Officer, Madurai and the Press Censor, Madras, in particular, for quashing the order dated 2nd February, 1976, issued by the Censor Officer, Madurai, and directing him to forbear from interfering with the publication in the periodical 'Theekkadir' of certain matters specified in detail in the affidavit filed in support of the writ petition.
4. Mr. V. Venkataraman, learned Counsel for 'Theekkadir', while adopting the arguments of Mr. K.K. Venugopal, in the other group of writ petitions, also put forward some submissions of his own peculiar to the periodical 'Theekkadir' which we shall consider in due course.
5. The ultimate determination of all the writ petitions aforesaid will depend upon our decision as to the validity of the orders or pre-censorship issued by the Censoring Authorities from time to time. Their validity was canvassed by the learned Counsel appearing for the three newspapers on several grounds.
6. The learned Advocate-General, appearing for the respondents, raised a preliminary objection as to the maintainability of the writ petitions, on the ground-that the reliefs asked for by the writ petitioners involved enforcement of their fundamental rights under Article 19 of the Constitution of India, which, however, has been suspended by order of the President of India dated 27th June, 1975 made under Article 359(1) of the Constitution for the period during which the Proclamations of Emergency issued by the President on 3rd December, 1971 and 25th June, 1975 are in force.
7. In order to appreciate the submissions of counsel for the petitioners as well as the preliminary objection raised by the learned Advocate-General, it may be necessary to state a few more facts.
8. Parliament passed the Defence of India Act on 4th December, 1971. On the next day, the Defence of India Rules, 1971, was promulgated under the Act. On 3rd December, 1971, the President of India, in exercise of his powers under Article 352(1) of the Constitution, issued a proclamation declaring that a grave emergency existed whereby the security of India Was threatened by external aggression.
9. On 25th June, 1975, the President, in exercise of the same powers declared that a grave emergency existed whereby the security of India was threatened by internal disturbances. On 26th June, 1975, the Central Government passed a statutory order S.O. No. 275(E) under Rule 48 of the Defence and Internal Security of India Rules, 1971, under which it directed that no news, comments, rumour or other report relating to the specified subjects named in that order shall be published in any newspaper, periodical or other document unless such news, comments, rumour or other report had been submitted, for scrutiny to an authorised officer and the publication thereof, was authorised by such officer. The order, proceeded to direct that no such publication shall be made except in accordance with such conditions or restrictions as such officer might impose. This order was addressed to all printers, publishers and editors in the country. On 27th June, 1975, the President of India passed an order under Article 359(1) of the Constitution suspending the right of any person to move any Court for enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution so long as the Proclamation of Emergency issued on 3rd December, 1971 and 25th June, 1975 were both in force. The Defence of India Act and the Rules made thereunder were amended with effect from 1st July, 1975. The title of the Act and the Rules was also altered from the 'Defence of India Act' and the Defence of India Rules into 'The Defence and Internal Security of India Act' and 'The Defence and Internal Security of India Rules. Under Rule 1-A, it was provided that as from the date of the aforesaid amendment, namely 1st July, 1975, the provisions of the Defence of India Rules shall apply, as far as may be, for the purpose of internal security as thy apply for the other purposes of the Act, and, accordingly, the provisions of the Rules ' shall be construed, wherever necessary, as including also a reference to internal security. On 8th January, 1976, the President issued an order under Article 359(1) of the Constitution, suspending the right of any person to move any Court for enforcement of the rights conferred by Article 19 of the Constitution for the period during which the Proclamation of Emergency issued by the President on 3rd December, 1971 and 25th June, 1975 were both in force. On 31st January, 1976, the President issued a proclamation under Article 356(1) of the Constitution assuming to himself the functions of the Government of the State of Tamil Nadu. Subsequently, on 2nd February, 1976. the Central Government issued a statutory order of amendment in S.O. No. 73(E) under which one item was added under the subject of pre-censorship to those already specified in the earlier order of the Government S.O. No. 275(E), dated 26th June, 1975. This additional subject for pre-censorship related to the Proclamation of Emergency in relation to the State of Tamil Nadu issued by the President on 31st January, 1976. 'Meanwhile, several writ petitions had been filed in this Court with reference to pre-censorship orders on 'Murasoli', questioning their validity in terms of the statutory orders, S.O. No. 275(E) dated 26th June, 1976 and its amendment on 2nd February, 1976, under S.O. 73(E). While so, on 6th May, 1976, the State Censor addressed a communication to the Editor, Murasoli, 'directing him to submit all news items, comments, including editorial comments, feature articles, etc., for scrutiny by him, adding that they shall not be published with-out his permission in writing. W.P. No. 1909 of 1976 was then filed in this Court for the issue of a writ of certiorari to quash the said order on the score that the State Censor had no power to call for submission to him for purposes of pre-censorship all materials before publication without reference to the specified subjects in regard to which alone the Central Government had issued its earlier statutory orders dated 26th June, 1976 and 2nd February, 1976, Pending disposal of the writ petition, however, the Central Government passed the following further order on 23rd June, 1976.
Whereas the Central Government is, of opinion that for the purpose of securing the defence of India and Civil Defence, the Public Safety and Maintenance of Public Order, it is necessary so to do;
Now, therefore, in exercise of the powers conferred by Sub-rule (1) of Rule 48 of the Defence and Internal Security of India Rules, 1971, the Central Government hereby makes the following order, namely:
(1) that no matter shall be published in 'Murasoli' Tamil daily newspaper published from Madras unless such matter has b en submitted for scrutiny to the State Censor for Tamil Nadu and the publication there of is authorised in writing by the said State Censor for Tamil Nadu.
(2) that no such publication shall be made except in accordance with such conditions or restrictions as the said State Censor for Tamil Nadu may impose.
This order is hereby addressed to Sri S.N. Maran alias Murasoli Maran, Editor, Printer and Publisher of 'Murasoli' 52-A, Kodambakkam High Road, Madras 600034. By order and in the name of the President etc.
On the very next day, that is, on 24th June, 1976, the State Censor issued a communication to the Editor of Murasoli' in the following terms -
In exercise of the powers under Rule 48 (1)(aa) read with the order of the Ministry of Home Affairs, Government of India, bearing No. 11/14011/120. 76 S and P (DN) dated 23rd June, 1976, the following condition is imposed in regard to the censoring of your paper 'Murasoli'.
Before publication of any matter in 'Murasoli', you are requested to submit for scrutiny with immediate effect, all such matters in page proof form, in duplicate.
10. The relief claimed for in W.P. No. 1909 of 1976, as originally framed, was for quashing the order of the State Censor, dated 6th May, 1976. Subsequent to the passing of the two orders dated 23rd June, 1976 by the Central Government and 24th June, 1976 by the State Censer, the petitioner has filed a petition for leave to substitute for its prayer in the writ petition a new one, namely, a prayer for quashing the two orders, dated 23rd June, 1976 and 24th June, 1976. The petitioner also asked for leave to raise certain additional grounds in the conditions created by the issue of these two orders.
11. Mr. K.K. Venugopal's main submission before us was that the order of the Central Government dated 23rd June, 1976 was in excess of its powers under Rule 48(1) of the Defence and Internal Security of India Rules, 1971. He urged that Rule 48 could be related only to Section 3(2) (7)(a) of the Defence and Internal Security of India Act, 1971. Under that provision, the Government had power to make Rules 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. Consistent with Section 3(2) (7)(a) of the Act, Rule 48, according to the learned Counsel, could not, therefore, contemplate, or authorise, pre-censorship of a newspaper without reference to the nature of its contents. Learned, counsel further submitted that even if Rule 48 was intra vires the Act, the statutory order passed by the Central Government on 23rd June, 1976 was invalid, since it requires that all matters without reference to the subject matter should be submitted for the scrutiny of the Censor. It was further submitted that the order of the Central Government dated 23rd June, 1976, was issued for the specific purpose of shielding from challenge the earlier order made by the State Censor on 6th May, 1976, and it was not bona fide made in exercise of the Central Government's powers under Rule 48.
12. The learned Advocate-General appearing for the respondents founded his preliminary objection that the writ petitions are not maintainable in view of the fact that the Proclamation of Emergency declared by the President on 3rd December, 1971 and 25th June, 1975 are still in, operation and the orders of the President under Article 359(1) dated 27th June, 1975 and 8th January, 1976 suspending the right to move any Court for enforcement of the petitioner's fundamental rights under Articles 14, 19, 21 and 22 are also in operation during the period of the Emergency. On the authority of the judgment of the Supreme Court in A.D.M., Jabalpur v. Shukla , the learned
Advocate-General contended that the writ petitioners have no locus standi to move any writ petitions before this Court under Article 226 of the Constitution for the issue of a writ or order or direction to challenge the legality of the orders passed by the Central Government, or by the Censor Officer, either on the ground that they are not in compliance with the Act or with the Rules or that they were otherwise vitiated in law.
13. Mr. K.K. Venugopal attempted to meet the preliminary objection by submitting that A.D.M., Jabalpur v. Shukla , was a
case, which arose following a detention order under the Maintenance of Internal Security Act, 1971, and the question that arose in that case was whether the suspension of Article 21 by the President's order dated 27th June, 1975, was fatal to the detenu seeking his remedy before a High Court by way of a writ of habeas corpus under Article 226 of the Constitution asking for relief without, in terms, invoking the fundamental rights. Mr. Venugopal submitted that Article 19 did not, in that case, figure in the discussion before the Supreme Court, and the judgment of the Supreme Court should, accordingly, be understood as an authority strictly confined to the question of maintainability of writs of habeas corpus and not writs for other reliefs under Article 226. We are not able to accept the learned Counsel's contention, for, the operative portion of the decision of the Supreme Court in that case, as laid down by the majority of the Judges cannot be read in that limited or restricted way, confined to Article 21 alone. The decision has to be held as having a far wider application, as at the end of the order of the majority at page 1392, the law is laid down as follows:
In view of the Presidential order dated 27th June, 1975, no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.
2. Section 16-A(9) of the Maintenance of Internal Security Act is constitutional.
3. The appeals are accepted. The judgments are set aside.
4. The petitions before the High Courts are now to be disposed of in accordance with the law laid down in these appeals.
14. The passage above quoted refers only to the Presidential Order dated 27th June, 1975, but the principle of the decision would equally apply to the President's order dated 8th January, 1976, under which the President suspended the right of any person to invoke Article 19 of the Constitution before any Court for enforcement of the rights conferred on him under that Article.
15. We may, in this connection, refer to an earlier Bench decision of ours in W.P. No. 2997 of 1976, etc., in which the decision of the Supreme Court in A.D.M. Jabalpur v. Shukla , was
applied, and in which we held that the right to enforce the fundamental rights under Article 19(1)(g) of the Constitution, having been suspended during the emergency, no writ petition could be entertained for enforcing the fundamental right even though the person aggrieved did not eo nomine invoke that right, but sought to question the action of the executive on other grounds. In the present group of writ petitions, learned Counsel for the petitioners have scrupulously avoided invoking any of the fundamental rights specified under Article
19. The only questions raised are the validity or 'vires' of the Rules in relation to the enabling Act. We are, however, satisfied that whatever be the basis or the nature of the challenge and whatever be the cause of action pleaded in the writ petitions and whatever be the error complained of in the order passed by the executive, there can be no gainsaying that they lead only to one grievance, namely, that the petitioner's rights are affected, and those rights, whatever might be the limited ground on which they are sought to be enforced, must be traced, ultimately, to the rights conferred under Part III of the Constitution. It follows that the moment the modes of enforcement of those rights in a Court of Law are suspended, no one would have locus standi to move the Courts for enforcement of his rights whatever be the particular ground on which those rights might happen to be asserted.
16. Mr. K.K. Venugopal, then argued that what was affected by the impugned orders of pre-censorship was not merely the freedom of the press which is a part of the freedom of speech guaranteed under the Constitution, but also the right to carry on the business, or trade, of a newspaper. He proceeded to urge that although the freedom of the press, as a guaranteed fundamental right, could not be enforced during the period of the emergency by reason of the Presidential Order, the newspaper's right to trade cannot be pigeonholed as a fundamental right under Article 19(1)(g) in which event alone the persons concerned would have no locus standi to enforce that right to carry into a Court of Law. According to the learned Counsel the right to carry on the business of a newspaper transcends Part III and falls within the provisions of Part XIII of the Constitution, which conferred a right of free trade within the territory of India. Learned Counsel contended that as a right falling under Part XIII, the newspaper's right to trade cannot be suspended by the President even during Emergency by exercise of any power on his part under Article 359(1) of the Constitution.
17. The learned Advocate-General answered these contentions by submitting that the freedom of the Press has always been conceived of as but one facet of the right of free speech. Any right which a person has as a mere organiser of the Press is no more than a right of free speech. The fact that the newspapers have an organisation could not therefore alter the fact that the rationale of their existence is based only on press freedom, which is one aspect of freedom of expression. In any case the question relating to pre-censorship has always been considered in terms of violation of the right of free speech, rather than contravention of the right of trade. The learned Advocate-General, therefore, contended that it would not be proper for the petitioners to challenge the order of pre-censorship on the touchstone of freedom of trade, guaranteed under Part XIII of the Constitution.
18. There is considerable force in the contention of the learned Advocate-General. There is consistent authority of the Supreme Court to show that the rights of a newspaper, in the ultimate analysis, are to be traced to the right of free speech.
19. In Romesh Thappet v. State of Madras , the
majority of the Supreme Court held that there could be no doubt that the freedom of speech includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. The Supreme Court was there concerned with an order passed by the Government of Madras under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, prohibiting the entry into, circulation, as well as suspension in the State of Madras, of an English weekly called 'Crossroads' published at Bombay. Quoting extensively from American authorities, the Supreme Court held that Section 9(1-A) of the Act was inconsistent with Article 19(i)(a). The Court observed that the free circulation was as essential to the newspaper as freedom of speech and that without circulation the publication would be of little value.
20. In another case which came up before the Supreme Court in Brij Bushan v. State of Delhi , an order passed by the
Chief Commissioner of Delhi, under Section 7(i)(c) of the East Punjab Public Safety Act, 1949, was challenged as unconstitutional by the Editor of an English Weekly called 'Organizer'. The impugned order directed the Editor to submit to the Chief Commissioner for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan, including photographs and cartoons, other than those derived from official sources or supplied by the news agencies. The Supreme Court held that the imposition of pre-censorship on the journal was undoubtedly a restriction on the liberty of the Press which is an essential part of the right to freedom of speech and expression declared by Article 19(1)(a). They quoted the following words of Blackstone in his Commentaries -
The liberty of the Press consists in laying no previous restraint upon publication and not in freedom from censure for criminal matter when published.
In Express Newspapers Ltd. v. Union of India the
Supreme Court referred to and relied on the earlier decisions in Romesh Thapper v. State of Madras , and Brij Bushan v. State of Delhi . The Court observed, in passing that the
concept of freedom of speech and expression, as it obtained in the United States of America, was more or less the same as in India.
21. In Sakal Papers v. Union of India , the Supreme
Court was concerned with the Newspapers (Price and Page) Act, 1956 and the order passed by the Central Government under the Act called Daily Newspaper (Price and Page) Order, 1960. It was contended before the Court that the said order was violative of Article 19(1)(a) of the Constitution. It was argued that the restrictions imposed by the Act and the order interfered with the right of the newspaper to publish news and views and to utilise as many pages as it liked for the purpose, in so far as such a right was made to depend upon the price charged to the readers. Prior to the promulgations of the order every newspaper was free to charge whatever price it chose and thus had a right, unhampered by State regulation, to publish news and views. This liberty was interfered with by the order which provided for the maximum number of pages for the particular price charged. Dealing with the question whether the impugned order violated Article 19(1)(a) of the Constitution, the learned Judges held that freedom of the press was included within the guaranteed freedom of speech and expression under Article 19 (1)(a) of the Constitution. Referring to the earlier decisions in Romesh Thappar v. State of Madras , and Brij Bhushan v. State of Delhi , and Express
Newspapers v. Union of India 1958 S.C.J. 1113 : A.I.R. 1958 S.C, the learned Judges held that the impugned Act and the order were directed against the circulation of a newspaper, and, this being so, the result would be a direct interference with the right of freedom of speech and expression guaranteed under Article 19(1)(a). In that case it was argued for the State that the Act and the Order complained of were directed not on the rights of free press but, rather, on the business or trade of newspapers. Repelling this contention, the Supreme Court observed that the reference to the Press being a business and to the restriction imposed by the main Act as a restriction on the right to carry on the business of publishing a newspaper would all be wholly irrelevant for considering whether the impugned Act infringes or does not infringe the freedom guaranteed by Article 19(1)(a). Consequently, the learned Judges struck down the order as violative of Article 19(1) (a) of the Constitution.
22. If on the authorities cited above, the be-all and end-all of a newspaper is only the freedom of the press, then there is much to be said for the contention of the learned Advocate-General that with reference to the impugned pre-censorship Orders in the present cases, the petitioner's newspapers cannot shed their traditional character and value during the emergency for the nonce, just for the sake of jettisoning Article 19(1)(a) of the Constitution. The learned Advocate-General further contended that even assuming that the newspapers on whose behalf the writ petitions have been filed can be considered as carrying on a business, yet they could only trace the source of that right to Article 19 under Clause (1)(g). The result will be the same, because even as respects the right under Article 19(1)(g), the locus standi of the petitioners to move the Court under Article 226 has been rendered unavailable by the promulgation of the order by the President under Article 359(1). He further submitted that the newspapers can claim to be a business or trade, and the only right that they can invoke for any purpose of enforcement or redress must be traced to Article 19(1)(g). The contention of the writ petitioners that quite apart from Article 19(1)(g) the newspapers can claim an independent right under Part XIII of the Constitution is wholly untenable. Article 301 only declares that trade, commerce and intercourse throughout the territory of India shall before. According to the learned Advocate-General, there must first be a right to carry on trade before it could be claimed that that right should be exercised freely throughout the territory of India. When a business right is the subject of Article 19 and that right, by virtue of the President's Order under Article 359(1) stands suspended, there can be no question of the subject being left free to invoke Part XIII for the purpose of establishing that his right should be freely exercised throughout the territory of India. Be relied on an earlier decision of this Court in N.A. Chidambaram Chettiar Firm v. State of Tamil Nadu Since , in which a similar argument touching the right of moneylenders to question the legality of the Money Lenders Act under Part XIII of the Constitution was repelled by this Court. We must accept the contentions of the learned Advocate-General, more especially the last one, for, we are bound by the earlier decision. In that decision, after quoting A.D.M., Jabalpur v. S. Shukla , the judgment proceeded to observe as under
Realising that all rights embodied in Part III and other rights which are conferred by the Constitution or any other law which can be traced to Part III, are all suspended, the learned Counsel submitted that even though he cannot urge his right to trade, the right to commerce and intercourse is still available to the petitioners. This plea is totally unacceptable, for the right to enforce the fundamental right to practice any profession or to carry on any occupation or trade or business is suspended. It is not possible to rule out money-lending and pawn-broking from the purview of the words "profession or occupation or business."
It cannot be successfully contended that money-lending and pawn-broking is commerce and intercourse. The word 'intercourse' has been construed as commercial intercourse. The Legislative entries in all the three lists relate to trade and commerce and the word 'intercourse' is not used as such in any of the entries. Intercourse which is referred to in Part XIII is, therefore, commercial intercourse and would stand or fall with the word, 'commerce.' The plea that money-lending and pawn-broking is commerce and commercial intercourse, but not profession, occupation, trade or business is unacceptable. If money lending or pawn broking is a trade, then the petitioners will be out of Court because the fundamental right to trade is suspended. The learned Counsel has, therefore, necessarily to contend that money lending and pawn broking does not come under Article 19 (1) which would be attempting the impossible.
Mr. Venugopal urged that because of the nature and timing for pre-censorship by the Press Censor the papers have to be submitted to him at the page-proof stage of every issue before the strike order was given. Hence, there was delay in the printing of every issue of the daily and there was further delay in catching the trains by which the newspaper could be despatched to other stations. He complained that all these affected the circulation of the newspapers. In the counter-affidavit filed by the respondents it was denied that there was any delay on the part of the authorities in censoring the page proofs. In any case, there is nothing in the order or in the rules which actually prevented the newspapers from free circulation. All that the procedure of pre-censorship did was only to ensure that matters were not published or circulated by the mass media which were prejudicial to the Defence of India and civil defence, internal security, public safety and maintenance of public order, efficient conduct of military operations or the maintenance, of supplies and services essential to the life of the community.
23. Even Article 301, as urged by the Advocate-General, was subject to Article 302, which empowered Parliament to make any law imposing such restrictions on the freedom of trade, commerce and intercourse which are required in public interest. It was not, and it could not be suggested that the Defence and Internal Security of India Act, 1971, was not a piece of legislation enacted in public interest. Rule 48 of the Defence and Internal Security of India Rules made pursuant to Section 3(2) (7)(a) of the Act did not restrict the trade or business of newspaper production and circulation and its main or only concern was to censor the contents of the newspapers. It could not, therefore, be said that any of the petitioner's rights under Part XIII of the Constitution could be jeopardised by the orders of pre-censorship. The orders of pre-censorship, even assuming that they inevitably involve delay in the newspaper being despatched by train time, cannot be impugned as a curtailment of the freedom of movement guaranteed under Article 301 considering that even freedom of movement of goods in the course of trade, commerce and intercourse maybe reasonably restricted on the basis of the requirements of public interest under Article 302. The learned Advocate-General cited a decision of the Privy Council in Australian. Bank of N.S. Wales (1949) 2 All. E.R. 755, in a case arising under Section 92 of the Commonwealth of Australia Act 1900, to show that there was no such thing as free trade, strictly speaking, and that the expression 'free' even with the accompanying words 'absolutely' occurring in Section 92 must yet receive some qualification. It was observed by Lord Porter, delivering the judgment of the Board, that the conception of freedom of 'trade, commerce and intercourse' in a community regulated by law must pre-suppose some degree of restriction on the individual. Lord Porter quoted the decision in Duncan v. State of Queensland 22 C.L.R. 573, as under:
The word 'free' does not mean extra legem any more than freedom means analogy. We boast of being an absolutely free people, but that does not mean that we are not subject to law.
The learned Advocate-General urged that the position under Article 301 read with Articles 302 and 304(b) of our Constitution, must be a fortiori. Although under Article 301, trade, commerce and intercourse throughout the territory of India shall be free, under Article 302 Parliament and, under Article 304(b) the Legislature of a State, may by law impose such reasonable restrictions on the freedom of trade, commerce or intercourse without or within the State as may be required in the public interest.
24. Mr. Venugopal in the course of his arguments submitted that the recent decision of the Supreme Court in A.D.M., Jabalpur v. Skukla , cannot be applied to a case where a person seeks to invoke the provisions of Article 301 of the Constitution. He compared and constrasted the freedom guaranteed under Article 19(1)(g) with the freedom of trade, commerce and intercourse guaranteed under Article
301. He set out various heads of distinction between the two Articles. He submitted that Article 19 applied only to citizens of India. While Article 301 applied also to non-citizens, of whom incorporated companies could be cited as an example, Article 301 was restricted to the territory of India whereas, Article 19 was not so restricted. Article 19(1)(g) could be suspended by the President in exercise of the powers conferred on him under Article 359(1), whereas, according to Mr. Venugopal, Article 301 was not amenable to such restrictions. Article 19 conferred rights on individuals carrying on trade, whereas Article 301 referred only to the freedom of trade as such. On the basis of this comparison and contrast, learned Counsel urged that Part XIII of the Constitution must be regarded as conferring rights of a kind which were separate and independent of those guaranteed under Part III. According to him the two kinds of rights operated in quite different fields. He referred to a decision of the Supreme Court in Sagkir Ahmed v. State of Uttar Pradesh , wherein the Supreme Court referred to the insertion of an additional clause in Article 19(6) by which State monopoly in regard to any line of trade or business was taken out of the purview of Article 19(1)(g) of the Constitution, but no such addition was made in Article 301 or Article 304 of the Constitution by the Constitution (First) Amendment Act. He also referred to the observation of the Supreme Court in the same case to the effect that Article 301, as it stood, guaranteed freedom of trade, commerce and intercourse subject only to Part XIII of the Constitution and not to the other parts of the Constitution including that dealing with fundamental rights. On this basis, Mr. Venugopal argued that the decision of the Supreme Court in A.D.M., Jabalpur v. Shukla , cannot be held to have decided that a person
aggrieved would be disentitled from invoking Article 301 of the Constitution in any proceeding before the Court merely because Article 19(1)(g) had been suspended by the President under Article 359(1) of the Constitution.
25. Invoking the remedy of Article 226 of the Constitution was the subject matter for consideration in the Supreme Court case in A.D.M., Jabalpur v. Shukla . Before the High Court, the
jurisdiction was invoked, to protect the petitioner's right to personal liberty under the common law or natural law, and, on this basis it was contended that although the right to move a Court for infringement of the fundamental rights under Article 21 had been suspended, yet the party aggrieved can invoke before the Court his right of personal liberty under the common law. This argument was negatived by the Supreme Court. It was observed by Ray, CJ., as follows:
If any right existed before the commencement of the Constitution and the same right with its same content is conferred by Part III as a fundamental right, the source of the right is in Part III and not in any pre-existing right. Such pre-Constitution right has been elevated by Part III as a fundamental right. The pre-existing right and the fundamental right have to be grouped together as a fundamental right conferred by the Constitution.
Mr. Venugopal argued that by way of contrast to the case before the Supreme Court, the petitioners were not by any means invoking in the present case, any antecedent rule of law. According to him, when the President suspended the right to invoke the fundamental rights under Article 19 that order, in terms had to be confined only to such rights as may be traced to Article 19. The Presidential Order could not affect, and was not intended to affect any other right conferred or guaranteed under any other Part of the Constitution.
26. The learned Advocate -General countered these submissions of Mr. Venugopal by referring to the judgment of Chandrachud, J., at page 1337 of the judgment of the Supreme Court:
The words 'conferred by Part III' which occur in Article 359(1) are not intended to exclude or except from the purview of the Presidential Order, rights of the same variety or kind as are mentioned in Part III, but which were in existence prior to the Constitution or can be said to be inexistence in the post-Constitution era, apart from the Constitution. The emphasis of the Article is on the right to suspend the enforcement of the kind of rights mentioned in Part III and not on the fact that those rights are conferred by Part III. To put it differently, the words 'conferred by Part III' are used only in order to identify the particular rights of enforcement which can be suspended by the President and not in order to impose a limitation on the power of the President so as to put those rights which exist or which existed apart from the Constitution, beyond the reach of the Presidential Order'
27. The learned Advocate-General also relied on another passage from the judgment of Ray, CJ, at page 1235 (para. 93) which is as under:
The suspension of the right to enforce fundamental rights has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency. There cannot be any rule of law other than the constitutional rule of law. There cannot be any pre-Constitution or post Constitution rule of law which can run Counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency.
28. The above passages from the judgments of the majority as well as the order of the majority set out at the end of their judgments, which we had extracted in an earlier portion of this judgment, clearly show that the President's order suspending the right to move any Court during the operation of the emergency comprehends not merely the right to move the Courts for enforcing the fundamental rights under Part III of the Constitution, but also any rights of the same variety or kind as mentioned in Part III, whether they were in existence prior to the Constitution or afterwards, whether they are to be found in the Constitution or quite apart from it. The reason behind this conclusion might be explained by quoting another passage from the judgment of Ray, C J. (at page 1226):
The provisions in our Constitution relating to emergency are of wide amplitude. The executive is armed with special powers because individual interests are subordinate to State security. If law is invalid vis-a-vis fundamental rights, there cannot be any challenge during the operation of Articles 358 and 359, on the ground that the law violates fundamental rights. It is contradictory to say that there can yet be challenges to orders under that law as being not in accordance with law.
29. Reliance was placed on the language of Article 226 of the Constitution which confers on every High Court the power to issue to any person or authority, including in appropriate cases any Government, any directions, writs etc., in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose. Emphasis was laid on the mention behind the last few words of Article 226 to support the maintainability of these petitions.
30. In the case in A.D.M., Jabalpur v. Shukla too it was argued that the provisions of Article 226 were invoked not for enforcement of fundamental rights, and that the writ petitioners relied on the jurisdiction of the High Court falling under the category 'for any other purpose' referred to in Article 226. This argument was repelled in the Supreme Court by observing that the complaint in that case was one of loss of personal liberty which can only be traced to Article 21, the right to move the Court for enforcement of which had been suspended by the Presidential Order under Article 359(1) of the Constitution.
31. Mr. Venugopal proceeded to urge that Rule 48 of the Defence and Internal Security of India Rules, 1971, did not contemplate pre-censorship but only censorship under particular heads or subjects such as the determination of news and views relating to Defence of India and Civil Defence, public safety, maintenance of public order or the efficient conduct of military operations and internal security. In the light of this interpretation, it was urged that the Statutory Order passed by the Central Government on 23rd June, 1976 imposing a blanket pre-censorship order was in violation of Rule 48. This argument cannot be accepted since Rule 48(1)(a) provides that the Central Government has authority to pass an order to a printer, publisher and editor requiring that all matters 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 an authority specified in the order. The clear intention of this Rule is that the Central Government has power to order pre-censorship with reference to all matters to be published without reference to the nature of the subject-matter.
32. Mr. Venugopal then argued that to the extent that Rule 48(1)(a) empowers the Central Government to require the newspapers to submit for pre-censorship all matters, without reference to a particular subject or class of subjects, such a Rule must be held to be ultra vires the rulemaking power of the Central Government under Section 3(2) (7)(a) of the Defence and Internal Security of India Act, 1971. According to him, Rule 3(2) (7)(a) enables the Central Government to make a Rule prohibiting the printing or publishing of any newspaper only where it contains matters prejudicial to the defence of India and civil defence, public safety, internal security, maintenance of public order, efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community. The section, according to him, does not contemplate that a Rule may be passed by the Central Government authorising pre-censorship of all matters that might appear in the newspapers without reference to the Heads of subjects mentioned in Section 3(2) (7)(a). This argument in our view, misses the significance of the enumeration of the rule-making power under Section 3 of the Act. In our view, the comprehensive source of the rule-making power is not to be found in the various sub-sections and clauses and sub-clauses set out in Section 3(2) of the Act. The real fountain-head of rule-making is to be found in Sub-section (1) of Section 3, which reads as under:
The Central Government, may by notification in the official Gazette, make such Rules as appear to it necessary or expedient for securing the defence of India and civil defence, internal security, public safety, maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community.
Sub-section (2) of Section 3 starts by saying that the Rules which may be made by the Central Government under Sub-section (1) may provide for the following matters "without prejudice to the generality of the powers conferred by Sub-section (1)". This shows that what matters is the generality of the rule-making power.
33. The preamble to the Act says that the Act was intended to provide for special measures to ensure the public safety and interest, the defence of India and civil defence, and internal security and for the trial of certain offences and for matters connected therewith. The preamble further states that the President has declared by Proclamation that a grave emergency existed whereby security of India was threatened by external aggression and internal disturbance. The validity of a Rule passed by the Central Government would, therefore, have to be considered in the light of the ambit of the generality of the rule-making power conferred on the Central Government by Section 3(1) which in our view will have to be interpreted in the light of the pre amble in the Act, which we have extracted above. On this basis, we have no doubt whatever in our minds, that the Central Government had the requisite authority to make a rule relating to matters to be submitted for pre-censorship by an authority specified in the order. Besides, even under Section 3(2) (7)(a), the rule-making authority has power to prohibit the printing and publishing a newspaper containing matter prejudicial to the defence of India and civil defence, internal security, public safety, etc. One way of ensuring that matters prejudicial to the defence of India and internal security are effectively prohibited from being printed or published in any newspaper is to require the printer or publisher of the newspaper to submit before printing the entire news-sheet. It is only by such a process or procedure that the scrutinising authority concerned can be in a position to know and sift the prejudicial matter from the non-prejudicial matter. If matter s are left to the discretion of the editor, printer or publisher, to submit to the censor only those articles, news items or other matters on which the editor, printer or publisher feels a doubt as to the nature of the subject-matter, there would be no knowing as to what would be sent to the censoring authorities. Under this arrangement of self-censorship there is just the possibility that matters which are really prejudicial to the defence of India or internal security might get published either by accident or by design. It is not the path of wisdom for a system of censorship whose aim is to prohibit the publication of prejudicial matter to take measures after the prejudicial news is published. In this view, therefore, the requirement of Rule 48 that all matters should be submitted to the scrutiny of the censoring authorities is quite in accordance with the aim and purpose of Section 3(2) (7)(a) of the Act. We accordingly do not subscribe to the contention of Mr. Venugopal, that Rule 48 is ultra vires. In any case, assuming that such a contention is entertainable on the statutory provisions, the right to raise an objection of this kind is also within the ambit of the order of suspension of fundamental rights passed by the President of India under Article 359(1) of the Constitution.
34. Mr. Venugopal then urged that the statutory order of the Central Government dated 23rd June, 1976 and the follow-up order of the State Censor dated 24th June, 1976, were mala fide, intended to get over the objections raised in W.P. No. 1909 of 1976. He pointed out that these two orders were passed during the pendency of the writ petition. Although the learned Counsel did not actually use the expression 'mala fide', his argument went very near that allegation. We, however, feel that even a contention alleging mala fides against any particular action of the Government as a ground for canvassing the legality or validity of the orders of the executive are far from being entertainable in a Court of law so long as the order of suspension by the President under Article 359(1) is in force.
35. The order of the majority of the decision in A.D.M., Jabalpur v. Shukla , which we have extracted earlier clearly shows that no person has any locus standi to move any writ petition under Article 226 for the issue of any writ or order or direction to challenge the legality of an order even on the ground that the order is vitiated by mala fides, factual or legal or is based on extraneous considerations. Reference may be made to the observations of Ray, CJ., which are as follows:
The Court cannot strike down the order as vitiated by mala fide and grant relief since it is not possible for the Court without the examination of such grounds, materials and information to decide whether the order of the detention is the result of malice or ill-will. When the Court cannot give any relief on that basis, the contention of mala fide is not only in effective, but also untenable.
At page 1320 of the reports Beg, J., has observed as follows:
When once an order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot enquire into its validity or vires on the ground of either mala fides of any kind or of non-compliance with any provision of the Maintenance of Internal Security Act in habeas corpus proceedings,
At page 1343 of the reports, Chandrachud, J., observes thus:
So long as the statutory prescriptions can be seen on the face of the order to have been complied with no further inquiry is permissible at to whether the order is vitiated by legal mala fides. As regards mala fides in the sense of malice-in-fact the same position might hold good because the Presidential Order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order.
36. In the affidavit filed in support of the W.P. No. 1909 of 1976 it was alleged that the daily 'Murasoli' intended to disseminate news and views regarding the D.M.K. party which was the party in power in the State of Tamil Nadu till the President's Rule was introduced on 31st January, 1976, and that the orders of the Central Government and the State Censor were intent one liminating the D.M.K. party by ensuring that news about the party and its activities and policies were not published in the daily. It was alleged that the Central Government, knowing that "Murasoli" was the only paper which was the mouth-piece of the D.M.K., has decided to gag it. It was also alleged that other newspapers were not subject to pre-censorship even though they were publishing prejudicial and even scurrilous matters. It was further pleaded that 'Murasoli' had been scrupulously following the earlier guidelines for publication of news, views, etc., and had not given any room for any complaint by the censorship authorities in any way. In these circumstances, the order issued by the Central Government and the State Censor were described as not only mala fide, but also discriminatory.
37. The allegations aforesaid are denied in the various counter affidavits filed by the respondents. It is unnecessary to go into these allegations because with the suspension of Article 14, among other fundamental rights in the Constitution, the petitioner has not only no locus standi to approach this Court, but cannot complain that the orders are arbitrary or discriminatory.
38. The last contention which Mr. Venugopal raised before us was based on the introduction into the statute book of Central Act XXVII of 1976 called the Prevention of Publication of Objectionable Matter Act, 1976. This Act, although passed by the Parliament on nth February, 1976 was given retrospective operation from 8th December, 1976 which was the date on which the Prevention of Publication of Objectionable Matter Ordinance, 1975 was promulgated by the' President. Parliament enacted this latest measure to provide against printing and publication of incitements to crime any other objectionable matter. Section 5 of the Act empowered the Central Government or other competent authority appointed by the Central Government to issue an order in writing addressed to the keeper of any press or any publisher or editor prohibiting the printing or publication of any document or class of documents or any matter relating to a particular subject or class of subjects for a specified period, not exceeding two months from the date of the communication of the order in a particular issue or issues of a newspaper or periodical. This power to prohibit publication of specified matters in a periodical newspaper or document was exercisable if the Central Government or the Competent Authority was satisfied that such action was necessary for the purpose of preventing or combating (i) any activity prejudicial to the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality and (ii) activity involving, or likely to involve or culminate in incitement to offences. The Central Government, however, had power to set aside or modify previous orders, to the advantage of any person who may be subjected to any of these orders. Provision was also made for review of the order by the Central Government on an application made by the person aggrieved. In the event of contravention of the orders passed by the Central Government or by the Competent Authority under Section 5, it had power to order forfeiture of publication which contravened the orders. This was apart from penalty by way of imprisonment which may extend to one year or with fine which may extend to Rs. 1,000 or with both. Chapter III of the Act contains various powers vested with the Competent Authority to demand security from the presses in cases where the Competent Authority shall specify that the presses have been used for the purpose of printing or publishing any newspaper or book or other document containing objectionable matter. The Competent Authority was also empowered to forfeit the security or demand further security from the presses. The consequence of failure to deposit security was to make an order on the keeper of the press cancelling the declaration made by him under the Press Registration Act. Similar powers were conferred on the Competent Authority to demand security from publishers of newspapers and to take consequential proceedings for forfeiture of security or punitive action for contravention of orders demanding security. These orders are amenable to revision by the Central Government. Chapter IV of the Act contained provisions for forfeiture of newspaper or news-sheets containing objectionable matters and prohibition of transmission by post of documents declared to be forfeited, power to seize and destroy unauthorised newspapers and news-sheets etc. Chapter V conferred a right of appeal to any person aggrieved by an order passed by the Central Government in revision. Chapter VI provides for penalties for contravention of various orders. Chapter VII among other provisions confers powers on the Central Government to issue search warrants, conduct searches and seize documents, etc.
39. Mr. Venugopal referred to the definition of objectionable matter in Section 3 of the Act to show what subjects, according to Parliament were to be regarded as objectionable matter. He further submitted that while this Act was obviously intended to take its place in the statute book as a piece of permanent legislation on the subject of prevention of publication of objectionable matter, that this enactment was preceded by an Ordinance clearly showed that it was intended to operate fully and effectively even during the conditions subsisting during the proclamation of emergency. Learned Counsel referred to the fact of the Ordinance having been promulgated on 8th December, 1975 by the President in exercise of his powers under Article 123 of the Constitution. The Proclamation of Emergency was itself proof positive that circumstances existed which rend red it necessary for the President to take immediate action by promulgating the Ordinance. Mr. Venugopal, therefore, urged that while the Act was enacted as a permanent legislation, it indubitably came into being for emergent reasons. He further submitted that the Act was a Special Act intended to cover exhaustively the subject of prevention of publication of objectionable matter in newspapers. This description, prevention of objectionable matter, was only another name, according to learned Counsel for the procedure of pre-censorship. Mr. Venugopal proceeded to contend that whatever might have been the scope of the provisions of Section 3(2) (7)(a) of the Defence and Internal Security of India Act, 1971, or Rule 48 of the Defence and Internal Security of India Rules made thereunder in regard to pre-censorship of newspaper or other orders, with the promulgation of the Ordinance and the enactment of the Prevention of Publication of Objectionable Matter Act, 1976, it must be held that the powers of the authorities under the Defence and Internal Security of India Act and the Rules could no longer be exercised or invoked for the purpose of pre-censorship or for prevention of publication of any objectionable matter. Mr. Venugopal pointed out that the provisions of Section 3(2) (7)(a) of the Defence and Internal Security of India Act, 1971, and Rule 48 when compared with the provisions of sections of the Prevention of Publication of Objectionable Matter Act, 1976 in the context of the definition in the Act of 'objectionable matter' would show that there was substantial overlapping of the subject-matter in the two enactments. Learned Counsel proceeded to urge that the Defence and Internal Security of India Act and the Rules made thereunder were all comprehensive in scope and pre-censorship of the newspapers was only one of the aspects of the power given to the Central Government for taking measures to ensure the defence and internal security of India. Thus, according to Mr. Venugopal, the Defence and Internal Security of India Act was a general Act, whereas the Prevention of Publication of Objectionable Matter Act was a special Act, when both the enactments were considered from the point of view of the provisions relating to pre-censorship of objectionable matter in any newspaper or other publication. Mr. Venugopal went further and said that Rule 48, in terms did not refer to any newspaper or news-sheet but only referred to matter published in any 'document' or class of 'documents.' This phraseology in Rule 48, according to him also showed that the Defence and Internal Security of India Rules, 1971, in so far as they related to the imposition of censorship was a general provision as compared to the special provisions of the Prevention of Publication of Objectionable Matter Act, 1976, which referred, in terms to newspapers, especially in Chapter III and Chapter IV of that Act. With this comparison instituted between the Defence and Internal Security of India Act on the one hand and the Prevention of Publication of Objectionable Matter Act, on the other. Mr. Venugopal submitted that the Court should invoke the rule that the general provision must yield to the special provisions. Mr. Venugopal quoted from text books on Interpretation of Statutes, and submitted that the rule of interpretation 'generalia specialibus nan derogant' was a principle that can be properly applied to a consideration of two Acts covering the same subjects of legislation, but one dealing generally and the other specially with the subjects. He also invoked another doctrine of interpretation, that of implied repeal. According to him, the purpose, ambit and the scheme of the provisions of the Prevention of Publication of Objectionable Matter Act, 1976 were such that they must be held to have impliedly repealed the provisions of Rule 48 of the Defence and Internal Security of India Rules, 1971. In any case Rule 48 was a piece of subordinate legislation whereas the measures relating to Prevention of Publication of Objectionable Matter Act 1976 were contained in the legislative' provisions enacted by Parliament. In this sense, after the coming into force of the Prevention of Publication of Objectionable Matter Act, 1976. Rule 48 of the Defence and Internal Security of India Rules, 1971 must, in Mr. Venugopal's submission be given only a restricted scope to be applied only to censorship of publications, which were not newspapers.
40. These contentions were effectively countered by the learned Advocate General. He submitted that there was no room for holding that the Defence and Internal Security of India Act, 1071 was a 'general' Act and the Prevention of Publication of Objectionable Matter Act 1976 was a 'special' Act. While there was some overlapping of the subject-matter as between the two enactments they Were not identical in every respect, The learned Advocate-General pointed out that the Defence and Internal Security of India Act, 1971 was a complete Code in regard to the exercise of emergency powers for the purpose of defence and Internal Security of India. He invited our attention to the preamble to the Defence and Internal Security of India Act, 1971 in which it was declared that the Act was enacted to provide for special measures to ensure the public safety and interest, the defence of India, civil defence, and internal security and for the trial of certain offences and for matters connected there with. He further pointed out that the aim and direction of Section 3 of that Act which conferred powers on the Central Government to make Rules oriented towards defence and internal security during the emergency. It was in that context that Section 3(2) (7)(a) as well as Rule 48 had to be administered by the Central Government and the other competent authorities. The provisions were intended to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and internal security. In this view, the Defence and Internal Security of India Act, 1971. was to be regarded as a special Act during the subsistence of the emergency and 6 months thereafter, whereas the Prevention of Publication of Objectionable Matter Act, 1976 was only a general Act of permanent value and duration for preventing objectionable matter being published by newspapers.
41. For examining the rival contentions aforesaid we may refer to a recent decision of the Privy Council in Associated Minerals v. Wyong Council (1975) 2 W.L.R. 81, for deriving the correct principle of statutory selection. That case was an appeal arising from the Supreme Court of New South Wales. The appellants were Mining Comparies operating in shire of Wyong under special mining leases. These leases were granted by the Crown under Section 40 of the Mining Act, 1906. While so, Wyong Shire Council proposed to enforce against the appellants the provisions of the Shire of Wyong Planning Scheme Ordinance made in exercise of the powers granted to the Council under the Local, Government Act, 1919. The provisions of the Ordinance contemplated the framing of a scheme for building, zoning, etc., under the control of the Council. The appellants contended that the Local Government Act, 1919 cannot authorise a Planning Scheme Ordinance applicable to the appellants because the appellants held a mining licence under the Mining Act, 1906 and were subject to the provisions of that Act and the terms of the lease granted thereunder. Before the Privy Council the question arose as to which of the two Acts was a general Act and which was a special Act. Lord Will-before, giving the judgment of the Privy Council referred to the maxim 'generalia specialibus non derogant' and quoted the following passage from the decision of the Privy Council in Parker v. Edger (1891) A.C. 749.
The general maxim is 'generalia specialibus non derogant' - when the Legislature has given its attention to a separate subject, and made provisions for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.
42. The noble Lord proceeded to observe that while the principle stated in Parker v. Edger (1891) A.C. 748, was unexceptionable, cases are rarely so simple as that mentioned in that decision. Even where the earlier statute deals with a particular and limited subject which is included within the general subject-matter with which the later statute is concerned, it is still a matter of legislative intention which the Courts endeavour to extract from all available indications, whether the former is left intact or is superseded. The provisions of the two Acts, the Privy Council observed, applied with complete generality to land in the State of New South Wales. Posing the question 'Can they, in relation to a given piece of land-coexist?" the answer, in their Lordships opinion was 'they clearly can and do'.
43. This decision of the Privy Council is an illustration of the principle that two different enactments may exist and operate side by side even though they may deal with similar aspects or similar subjects of legislation. The submission before us is that subsequent to the enactment of the Prevention of Publication of Objectionable Matter Act, 1976, Rule 48 of the Defence and Internal Security of India Rules, 1971, must receive a restricted interpretation. We do not see on what principle or canon of statutory construction this conclusion can be reached. If on a fair reading of the language of Rule 48, it applies to pre-censorship of the newspapers, we do not see how their meaning could be truncated merely because of the subsequent enactment of the Prevention of Publication of Objectionable Matter Act, 1976. We do not also subscribe to the view that Rule 48 of the Defence and Internal Security of India Rules, 1971, since it only refers to documents, must necessarily be applied to non-newspapers after the commencement of the Prevention of Publication of Objectionable Matter Act, 1976. The argument of Mr. Venugopal overlooks that Section 3(2) (7)(a) of the Defence and Internal Security of India Act, 1971, which is the enabling provision for Rule 48, specifically refers to prevention of Publication of newspapers.
44. We are therefore, of the view that Rule 48 of the Defence and Internal Security of India Rules, 1971, has full force and effect enabling the appropriate censor authorities to apply pre-censorship of newspapers and other publications as effectively after the introduction of the Prevention of Publication of Objectionable Matter Act, 1976, as had been in vogue before that enactment. In this view, therefore, the order passed by the Central Government as well as by the State Censor must be upheld. We must also add that the challenge to the orders of the Central Government and the State Censor under Rule 48 of the Defence and Internal Security of India Rules, 1971, on the basis that they are inconsistent with the provisions of the Prevention of Publication of Objectionable Matter Act, 1976, would also fill within the rule laid by the Supreme Court in their judgment in A.D.M., Jabalpur v. Shukla .
45. Mr. Venugopal also raised a contention that for effectively ensuring that objectionable and prejudicial matters are not published, there were other provisions in the Defence and Internal Security of India Rules, 1971, which the authorities might very well pursue and, in that context, Rule 48 must be construed as limiting the power of the censor only to call for specified or classified matter (sic) for censorship scrutiny. He referred to the provisions of Rule 48(a) and (3) of the Defence and Internal Security of India Rules, 1971. He also referred, by analogy, to the provisions of Chapter III and Chapter IV of the Prevention of Publication of Objectionable Matter Act, 1976. According to him, these provisions contemplate the obtaining of security from any Press or publisher of a newspaper, the demand for further scrutiny, forfeiture and seizure of publications relating to prejudicial and objectionable matter, etc. According to learned Counsel, these powers are intended to be an effective weapon against publication of prejudicial and objectionable matter. This being so, there was no need for the Central Government or the State Censor to direct the editors and publishers of newspapers to submit to them for scrutiny the proof of the entire printed matter before publication for the purpose of ensuring that prejudicial and objectionable matters are not included therein. According to Mr. Venugopal, the existence of provisions such as those found in Rule 48(2) and (3) is an indication that the power to impose pre-censorship in Rule 48 must be exercised selectively and not in a general or omnibus manner. We, however, do not accept these contentions as valid. The powers regarding forfeiture of security, seizure of a document, etc., are punitive in character and they are additional powers granted to the Government under Rule 48(2) and (3) of the Defence and Internal Security of India Rules, 1971, or granted to the competent authority under the provisions of Chapter III and Chapter IV of the Prevention of Publication of Objectionable Matter Act, 1976. The provisions for forfeiture and security are intended to serve as a punishment for contraventions, whereas the provisions relating to precensorship are out-and-out preventive. The learned Counsel is in error in suggesting that merely because the Government or the appropriate authority has powers to forfeit objectionable publications or forfeit the security furnished by keepers of the press, the scope of their power to censor objectionable matter must be given a restricted or limited application.
46. In the result, we find that all the objections raised by the writ petitioners against the orders of the Central Government and State Censor are not only not maintainable, but untenable even on merits.
47. Mr. V. Venkataraman, learned Counsel for the Weekly 'Theekkadir' submitted that it was the Official Organ of the Communist Party of India (Marxist.) In the course of his submission, he sought to point out the selective character of the orders of censorship issued by the Censor Officer. Several instances were mentioned in the supporting affidavit of the writ petition. He pointed out the censoring of these passages was colourable and was with a view to silence the party organ The contention of Mr. Venkataraman would only amount to this, that the orders of the censor are mala fide. We have already held on the authority of the judgment of the Supreme Court in A.D.M., Jabalpur v. Shukla , that a contention of this kind cannot be
entertained during the operation of the order of the President under Article 359(1) of the Constitution. We do not, therefore, propose to enter into a consideration of the grievances of the editor of this Weekly "Theekkadir' on these subjects further.
48. In the result, all the writ petitions are dismissed with costs. Counsel's fee Rs. 500 one set in W.P.No. 1909 of 1976.