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Judgment
Veeraswami, J.—The question raised in this petition is as to the constitutional validity of the Prevention of Insults to National Honour Act,
Madras Act XIV of 1957. The Petitioners who are accused 6 and 7, stand charged before the Court of the District Magistrate, Madurai, with
having committed offences u/s 5 of that Act read with Sections 120B and 109 of the Indian Penal Code. The sixth accused is said to be the
organizing secretary of the Dravida Munnetra Kazhagam and a member of Anti-Hindi Agitation Committee and the seventh accused is the
treasurer of the Kazhagam and Chairman of that Committee, besides being the Deputy Leader of the Opposition in the Madras Legislative
Assembly. The Parliament passed the Official Languages Act (Act XIX of 1963), which received the assent of the President on May 10, 1963.
The object of the Act is to provide, with reference to Article 343(3) in Part XVII of the Constitution of India, for the languages which may be used
for the official purposes of the Union of India, for transaction of business in Parliament, for Central and State Acts and for certain purposes in High
Courts. Section 3 of this Act enacts that notwithstanding the expiration of the period of fifteen years from the commencement of the Constitution,
the English language may, as from the appointed day, continue to be used, in addition to Hindi for all the official purposes of the Union as before
and for transaction of business in Parliament. This section is to come into force on January 26, 1963. The rest of the provisions, which are to come
into force on and from the dates appointed by the Central Government by notification in the Official Gazette, provide for the setting up of a
Committee on Official Language, publication of a translation in Hindi of Central Acts, Ordinances, Orders, Rules, regulations or bye-laws under
the Constitution or any Central Act as also Bills in English introduced in the Parliament, authorized Hindi translation of State Acts in certain cases,
optional use of'' Hindi or other official language in judgments of the High Courts and power, to make rules.
The Petitioners before us state that the policy of their party is to protest against the imposition of Hindi as an official language and Hindi neo-
imperialism and, in furtherance of such policy, to burn openly and publicly Part XVII of the Constitution of India and to announce in public, the
names of persons, places, date and hour for doing it. The prosecution has attributed to the sixth accused the act of burning Part XVII of the
Constitution of India on December 6, 1963 and the seventh accused a similar act on July 19, 1963 at Thanjavur both acts as having been done
openly and publicly. Actually the charges framed against them at the trial before the District Magistrate are that they with others conspired to
willfully burn Part XVII of the Constitution and also abetted by delivering public speeches and instigating certain other accused to willfully burn that
Part of the Constitution punishable respectively u/s 5 of the Prevention of Insults to National Honour Act read with Section 120B of the Indian
Penal Code and under the same section of that Act read with Section 109 of the Code. While their trial is pending before the District Magistrate,
they have moved this Court to quash the charges against them.
The ground on which they seek the relief from this Court is that Section 5 of the Prevention of Insults to National Honour Act is ultra vires the
powers of the State Legislature and is, in any case, violative of their fundamental rights guaranteed by Article 19(1)(f) of the Constitution. Mr. K.
Narayanaswamy Mudaliar, who appears for the Petitioners contends that the subject-matter of the Act is national honour and its purpose is to
protect it from insults and that the only head of legislative power under which the subject can be brought, is the residuary entry 97 of the Union List
of the Seventh Schedule to, the Constitution. He refers to the use of the words nation or national in the preamble. Article 249(1), national highways
in entry 23, national waterways in entry 24, and national importance in entries 63 and 64 in the Union List and argues that the Constitution has
intended that anything of a national character or importance can be the subject matter of legislation by the Parliament only under the Union List and
not by the State Legislature under the State or Concurrent List. He invites attention to the heading of the Act. An Act to prevent insults to National
Honour and says that as the pith and substance of the Act is the concern of the entire country and as none of the enumerated entries in any of the
Lists specifically covers it, it necessarily belongs to the residuary power of the Union Legislature. Learned Counsel is right in invoking the aid of
pith and substance doctrine in testing the virus of the impugned section. But beyond that, we are unable to appreciate his contention. In our view,
his approach to the problem of virus is incorrect as it has, as its basis, a wrong assumption that a subject, which is of a national character and of
country-wide importance, is not for that reason within the province of the State legislative power and that only Parliament can legislate on the
subject of national honour.
The validity of an Act of the State Legislature should, in our, view, be tested having regard to the provisions of the Constitution relating to the
distribution of the legislative power and constitutional limitations upon it, and not on the basis which learned Counsel for the Petitioners has
suggested. Our Constitution is of a federal type with distribution of legislative power between the Union and the States under enumerated heads
assigned exclusively to each, except the Concurrent field common to both and regulated by the repugnancy provisions, and leaving the residuary
powers to the Parliament. The competency or vires of a State legislation, as of Parliament, depends, therefore, on the answer to the question
whether it is within the ambit of any of the State or Concurrent legislative heads of power. This test is applied by reference to the true character,
nature, purpose and legal effect of the legislation, or to put it in a different phraseology, the pith and substance doctrine ""and allied rules of
construction. We cannot, therefore, accede to the proposition that, if the subject of legislation is of a national character in the sense that it concerns
not merely the State but the country in general, it is decisive that the power with respect to it belongs to the Parliament and not to the State
Legislatures.
We shall, therefore, first examine the provisions of the impugned Act to ascertain its pith and substance so as to fix the legislative head of power
under which it can be justified. As we have already mentioned, the Act begins with the caption that it is an Act to Prevent Insults to National
Honour and its preamble recites that it is expedient and necessary to prevent certain offences against the Indian National Flag, pictures, effigies and
statues of the Father of the Nation, or the Constitution. Section 1 relates to the title of the Act. Each of the following four sections creates a
separate offence punishable with imprisonment extending to three years or with fine or with both. Section 2 provides for punishment of whoever
willfully burns or desecrates or insults any effigy, picture or portrait of Mahatma Gandhi, Section 3, of whoever willfully causes damage to, or
destruction of, any statue or bust of Mahatma Gandhi or any such change in such statue or bust or in the situation thereof, as destroy or diminish,
its value of appearance or otherwise affects it injuriously Section 4, of whoever willfully burns or desecrates or insults the Indian National Flag
including any pictorial representation thereof and Section 5, of whoever willfully burns or desecrates or insults any copy or a copy of a part of the
Constitution of India. u/s 6, whoever attempts to commit any of these offences shall be deemed to have committed that offence. The essence of the
Act is the legislative recognition of the fact that Mahatma Gandhi as the Father of the Nation, the Indian National Flag which symbolizes the
sovereignty of this Country and the Constitution of India, which is the supreme document and which enshrines the set up of the Democratic
Republic, the rights and aspirations of the nation and the machineries of the Government, are amongst those constituting our national honour and
that any of the said acts done willfully is an insult to the Indian Nation and its honour and is a penal offence. While the subject of legislation is the
national honour and its purpose is to preserve and protect it from any willful acts of insult, it is obvious that what is basic to the Act is public
propriety and orderliness.
In our view, therefore, Section 5 of the Act may Tall within the ambit of Public Order in Entry 1 of the State Legislative List. Apart from the fact
that legislative heads of power should be read and understood in their widest amplitude and sense, the phrase Public Order is in itself of a very
wide import and will, in our opinion, include an impropriety, affront or insult to the orderliness, such as willful burning, desecrating or insulting a
copy or a Part of the Constitution of India. The vice of the impropriety lies in the willfulness of the act of burning or desecrating or insulting. There
can be no doubt, whatever that the Constitution of India concerns the public and any insult willfully offered to it is in a sense a negation of the
values comprised in Public Order.
In Lakhi Narayan Das v. Province of Bihar 1949 F.C.R. 605, the Federal Court observed that the expression Public Order with which the first
item in the Stale List begins, was a most comprehensive term and it clearly indicated the scope and ambit of the subject in respect of which powers
of legislation had been given to the State. That, no doubt, was a case relating to preventive detention but even so, the force of the observation as to
the comprehensive amplitude of the expression remains. Learned Counsel for the Petitioners attempted a narrower interpretation of the phrase
Public Order on the basis of The Superintendent, Central Prison, Fatehgarh Vs. Dr. Ram Manohar Lohia, . But there the Supreme Court was
concerned with the concept of Public Order as it occurs in Article 19(2) as amended by the Constitution (First Amendment) Act, 1951. It was
held that the content and meaning of the Public Order in that provision should be understood as limited by the context and in the light of the words
preceding and following that phrase and that so understood, the phrase was synonymous with public peace, safety and tranquility. In our opinion,
considerations, which govern the interpretation of the phrase in Article 19(2) of the Constitution, cannot be imported into construction of Public
Order as a legislative head of power. The Supreme Court itself in that case noticed that de hors the context of Article 19(2), the phrase Public
Order was one of wide significance which might include maintenance of public tranquility and offences against Public Order falling under two
categories: (1) major offences affecting the security of the State and (2) minor offences involving breach of purely local significance. We think,
therefore, that the limited meaning given to the phrase in the context of Article 19(2) does not help the Petitioners. As we said, in our view an insult
to national honor of the kind mentioned in Section 5 of Madras Act XIV of 1957 falls under Public Order and Section 5 is competent for the State
Legislature to enact under entry 1 read with entry 64 of the State List.
We are also clearly of the opinion that the impugned Section 5 is in any case competent for the State Legislature to enact under the head of
Criminal Law in the Concurrent List. This head includes all matters included in the Penal Code at the commencement of the Constitution but from
its ambit are, no doubt, excluded offences against law with respect to any of the matters specified in List I or List II. The other exclusion from it of
the use of naval, military or air forces or any other armed forces of the Union in aid of civil power is not relevant to our present purpose. Prima
facie, Criminal Law is comprehensive, and subject only to the express exclusions, it will comprehend all criminal law. We are unable to accept the
contention for the Petitioners that because National Honor falls under the residuary entry in the Union list, it is excluded from the purview of
Criminal Law in the Concurrent List. This argument appears to us to proceed on a wrong assumption as to the scope and effect of the words of
exclusion in entry I of the Concurrent List. Our understanding of the effect of the exclusion by the words excluding offences against laws with
respect to any of the matters specified in List I or List II is that, till a law is made with respect to any of the matters in List I or List II, no limit is
placed upon and the exclusion does not operate to limit the ambit of the power under the head of Criminal Law in List III. We are inclined to
accept the argument of learned Advocate-General that the exclusion contemplated by entry I in the Concurrent List takes effect on account of and
springs from the fact of there being a law made with respect to any of the matters specified in List I or List II and that, if there is no such law made,
there is no limitation upon the concurrent power under the head Criminal Law. Only if a law is made, does the occasion arise to create offences
against the law. Section 5 of Madras Act XIV of 1957 is not a case of an offence against a law made by the State Legislature. But it directly
creates an offence punishable as specified. The Emblems and Names (Prevention of Improper Use) Act (XII of 1950) which is a Central
enactment illustrates the difference. In that Act, Section 3 prohibits improper use of certain emblems and names and Section 5 provides that any
person who contravenes the provisions of Section 3 shall be punishable with fine which may extend to Rs. 500. So far as Section 5 of Madras Act
XIV of 1957 is concerned, in creating an offence under that section, the State Legislature has assumed that the common law of the land does not
permit willful burning, desecration or insult to a copy or a copy of a part of the Constitution of India. In support of such an assumption, learned
Advocate General has referred us to Shaw v. Director of Public Prosecutions [1962] A.C. 220, in which Viscount Simonds observed:
I am concerned only to assert what was vigorously denied by counsel for the Appellant, that such an offence is known to the common law.... But I
am at a loss to understand how it can be said either that the law does not recognize a conspiracy to corrupt public morale or that, though there may
not be an exact precedent for such a conspiracy as this case reveals, it does not fall fairly within the general words by which is described.... On the
one hand it is said that it is not possible in the twentieth century for the Court to create a new head of public policy, on the other it is said that this is
but a new example of a well-established head. In the sphere of criminal law I entertain no doubt that there remains in the Courts of law a residual
power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the
State and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.... The law
must be related to the changing standards of life, not yielding to every shifting impulse of the popular will but have regard to fundamental
assessments of human value and the purposes of the society....
These observations were made in a different context but the principle the Noble Lord had in mind is understandable. Can it be said that the
common law of this land will be so blind and insipid as to allow willful burning of a copy of the Constitution of India which is so vital and supreme
for the governance and welfare of this Country? The answer is plain and in the words of the Noble Lord at page 268:
I say, my Lords, that if the common law is powerless in such an event, then we should no longer do her reverence. But I say that her hand is still
powerful....
Here in the case of Section 5 of Madras Act XIV of 1957 the State Legislature itself assumes, we think rightly, that the willful acts which are
made offences under that section, are prohibited by the common law of the land.
We have already noticed that the head of power under the Criminal Law in List HI includes all matters included in the Indian Penal Code at the
commencement of the Constitution some of which are offences against public tranquility and offences affecting public safety. It is not inconceivable
that when a copy of the Constitution is willfully burnt, desecrated or insulted, it is likely to disturb public tranquility. It is not also inconceivable that
in a broad sense such an act may affect public safety and that it may further foe regarded as opposed to decency and good morals. On this view
also, we think that the impugned Section 5 was competent for the State Legislature to make under entry I of the Concurrent List.
The Petitioners next contend that Section 5 of Madras Act XIV of 1957 violates their fundamental right under Article 19(1)(f) the right to
acquire, hold and dispose of property. It is said that a copy of the Constitution of India is of commercial value and is property which the owner is
entitled to dispose of in any manner he likes including by burning or desecrating it. We may concede that a copy of the Constitution is property, but
we are enable to accept the proposition that the right under Article 19(1)(f) includes the right to willfully burn, desecrate or insult a copy of the
Constitution or a copy or any part of it. That certainly cannot be the intention of the frames of the Constitution. In fact, an act, so sacrilegious as
that, would not be within the contemplation of the framers. Can it be said that because a bottle of whisky is property it is the fundamental right of
the owner to dispose it of in any way by himself consuming it? To our minds, the answer is clearly and should be in the negative. In The State of
Bombay Vs. R.M.D. Chamarbaugwala, the Supreme Court had to consider whether gambling was included in the fundamental rights. While
holding that it was not the Supreme Court observed:
We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or
chance...could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be
made the subject-matter of a fundamental right guaranteed by Article 19(1)(g) ...We are, however, clearly of opinion that whatever else may or
may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and
satisfied that the real purpose or Article 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling.
Following the same line of reasoning we hold that willful burning of a copy of the Constitution is not included in the fundamental right to acquire,
hold and dispose of property. Section 5 of Madras Act XIV of 1957 does not violate Article 19(1)(f) of the Constitution.
The result is, we uphold the validity of Section 5 of Madras Act XIV of 1957 and dismiss the petition.