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Case Number

C.M P Nos. 1941, 2593 & 2777 of 1950,April 6, 1951

Attorney(S)

A. Ramachandran, for Row & Reddy for Petr.
Advocate General (V.K Tiruvenkatachari), for State Counsel for State.

Judges

Rajamannar C.J & Somasundaram, J.

Acts

S. 3 (1) of the Indian Press Emergency Powers Act, XXIII of 1931
s. 4 of the Press and Registration of Books Act, XXV of 1867,
SECTION 4 PRESS AND REGISTRATION OF BOOKS ACT 1867
S. 3(1) of the Press (Emegency Powers) Act XXIII of 1931
section 3(1) of the Indian Press (E.P) Act 23 of 1931
S. 3 (1) of the Indian Press (Emergency Powers) Act
s. 7 (1) (a) of the East Punjab Public Safety Act
s. 3 (1) of the Press (Emergency Powers) Act
Registration of Books Act, (XXV of 1867).
s. 3(1) of Act. XXIII of 1931

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Smart Summary

Opinion Summary — C.M.P. No. 1941 of 1950 (Rajamannar, C.J.)

Factual and Procedural Background

The petitioner, Mrs. Pattammal Arumugam, owner of the "Nehru Press" in Perambur, filed an application before the Chief Presidency Magistrate, Madras City, on 13 January 1950 to declare herself the keeper of the press as required by the Press and Registration of Books Act, 1867. On or about 13 February 1950 the Chief Presidency Magistrate (Sri K. Ramaswami Gounder) purported to exercise powers under section 3(1) of the Indian Press (Emergency Powers) Act, 1931 and ordered the petitioner to deposit security of Rs. 1,000 within ten days, either in cash or Government of India securities. The order was issued without prior notice to the petitioner and without a chance to show cause, according to the petition.

The petitioner challenged the Magistrate's order by way of a writ of certiorari, primarily arguing that section 3(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931) is void under Article 13 of the Constitution as inconsistent with Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (right to carry on any occupation, trade or business). She also deposed that she was too poor to furnish the security within the time required, and that the order deprived her of her livelihood. The petition noted that statutory remedies under the 1867 Act did not permit her to approach this Court against an order made under sub-section (1) of section 3.

Legal Issues Presented

Whether section 3(1) of the Indian Press (Emergency Powers) Act, 1931 is void under Article 13 of the Constitution insofar as it is inconsistent with Article 19(1)(a) (freedom of speech and expression).
Whether section 3(1) of the Indian Press (Emergency Powers) Act, 1931 is inconsistent with Article 19(1)(g) (right to carry on any occupation, trade or business) and thus an unreasonable restriction under Article 19(6).
Whether the Magistrate's order requiring security, issued without prior notice or opportunity to show cause, was procedurally invalid in the circumstances alleged by the petitioner.

Arguments of the Parties

Petitioner's Arguments

The impugned order under section 3(1) was issued without prior notice and without affording the petitioner an opportunity to show cause.
Section 3(1) is void under Article 13 of the Constitution because it is inconsistent with Article 19(1)(a) — freedom of speech and expression — and Article 19(1)(g) — the right to carry on any occupation.
She was too poor to deposit the required security, and the ten-day period made compliance impossible; the order therefore deprived her of her sole source of livelihood and caused hardship.

Respondent's (State / Advocate General) Arguments

The Advocate General argued that section 3(1) need not be declared wholly void because, in particular cases, the reasons recorded by a magistrate for requiring security might fall within the scope of Article 19(2) and thus be constitutionally permissible.
Implicit in that submission was a severability argument: the provision could be valid as applied in some instances even if invalid in others.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Romesh Thappar v. The State of Madras [1950] M.W.N. 435	The principle that a law which authorises by broad language restrictions on a fundamental right — capable of being applied both within and beyond constitutionally permissible limits — is not severable and must be held wholly unconstitutional when the possibility of unconstitutional application cannot be ruled out.	The court applied this principle to hold that s. 3(1), being capable of application for purposes not sanctioned by the Constitution (i.e., beyond Article 19(2) limits), could not be upheld even in part and must be treated as unconstitutional.
Brij Bhushan v. State of Delhi [1950] M.W.N. 429	The ruling that prior restraint (pre-censorship) on publications is a restriction on the liberty of the press and is incompatible with Article 19(1)(a); the liberty of the press consists in no previous restraint, not in freedom from subsequent censure.	The court relied on this precedent to characterise the requirement of security before publication as an unreasonable prior restraint akin to pre-censorship and therefore constitutionally impermissible.

Court's Reasoning and Analysis

The court's analysis proceeded by examining the statutory text and its interaction with constitutional protections for speech and occupation, and by applying controlling Supreme Court authority.

Nature and effect of section 3(1): The provision empowers the magistrate, for reasons "to be recorded in writing," to require a press-keeper (making a declaration under section 4 of the 1867 Act) to deposit security within ten days up to Rs. 1,000. Failure to deposit attracts penal consequences (section 11) and restriction on use of the press and potential forfeiture (section 12).
Article 19(1)(a) analysis: The petitioner’s challenge was that s.3(1) infringed freedom of speech and expression. The court noted Article 19(2) saves only laws relating to specified matters (e.g., security of the State). The court held that s.3(1) is not itself a law directed at matters undermining security; at the stage the magistrate acts (before any publication has occurred) there is no existing publication to which a saved restriction could attach. Thus s.3(1) operates preventively and Article 19(2) does not justify preventive legislation grounded in mere contingency of future publications.
Preventive restriction and the requirement of "matter": The court emphasised that Article 19(2) contemplates restrictions in relation to existing or identifiable matter; it cannot be stretched to cover a mere contingency (the possibility of harmful publication in the future). Consequently, s.3(1)'s preventive requirement of security prior to any publication could not be sustained under Article 19(2).
Non-severability and the Romesh Thappar principle: The Advocate General’s severability argument (that s.3(1) could be validly applied in some cases) was rejected on authority of Romesh Thappar. Because the statute is drafted in language wide enough to permit applications beyond constitutionally permissible ends, and because the possibility of unconstitutional application cannot be ruled out, the statute is not severable and must be declared void.
Article 19(1)(g) analysis: The court further found s.3(1) inconsistent with the right to carry on an occupation (Article 19(1)(g)). Article 19(6) permits reasonable restrictions in the interest of the general public; the court found that requiring security before the business of keeping a printing press is an unreasonable restriction, and the provision was not shown to be in the interests of the general public.
Illustration of potential for abuse: The court pointed to the facts of the case — a confidential police report describing the petitioner as a "communist sympathiser" and likelihood of printing prejudicial literature, while the Magistrate's reasons included the possibility of inciting cognisable offences — to show how the provision can be abused and applied without the necessary nexus to actual danger to public security. The police report did not mention commission of cognisable offences involving violence, illustrating the gap between the recorded reasons and any constitutionally permissible grounds.
Reliance on pre-censorship doctrine: The court likened the imposition of security before any publication to pre-censorship, relying on Brij Bhushan to underline that prior restraint is a severe interference with the liberty of the press and therefore constitutionally suspect.

On the combined basis that section 3(1) permits preventive action not validated by Article 19(2), that it is drafted in unbounded terms enabling unconstitutional application (Romesh Thappar), and that it imposes an unreasonable restriction on occupation (Article 19(1)(g)), the court concluded that the provision could not be allowed to remain operative after the Constitution came into force.

Holding and Implications

Holding: The court made the writ nisi absolute and quashed the Magistrate's order dated 13-2-1950 requiring the petitioner to deposit security. The court held that section 3(1) of the Indian Press (Emergency Powers) Act is inconsistent with Article 19(1)(a) and Article 19(1)(g) of the Constitution and cannot be upheld; accordingly, a provision of that character "cannot be allowed to remain on the statute book after the coming into force of the Constitution."

Direct consequences for the parties: The specific order against Mrs. Pattammal Arumugam dated 13-2-1950 was quashed; the writ issued was made absolute. Following the same reasoning, the court also quashed two other similar orders in C.M.P. Nos. 2503 and 2777 of 1950.

Broader implications: The court applied and followed recent Supreme Court authorities (Romesh Thappar and Brij Bhushan) to strike down a statutory preventive measure that enabled prior restraint and unreasonable occupational restriction. The opinion does not assert the creation of a new principle beyond applying those precedents; its holding rests on the application of existing Supreme Court doctrine to section 3(1).

Source: Extracted and summarized from the provided opinion of Rajamannar, C.J., C.M.P. No. 1941 of 1950 (with references to related C.M.P. Nos. 2503 and 2777 of 1950).

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Mrs. Pattammal Arumugam v. The Chief Presidency Magistrate, Egmore Madras.

[Rajamannar, C.J]

C.M.P No. 1941 of 1950. The question for decision in this case falls within a narrow compass. The petitioner is the owner of a printing press. She filed an application before the Chief Presidency Magistrate, Madras City for declaring herself as the keeper of the press on 13-1-1950 as required under the Press and Registration of Books Act, (XXV of 1867). On or about 13th February 1950 the Chief Presidency Magistrate passed an order purporting to be under S. 3 (1) of the Indian Press Emergency Powers Act, XXIII of 1931 calling upon the petitioner to deposit with him within ten days from that day a security of Rs 1000 either in cash or in Government of India securities. The reasons for this order were contained in the preamble which ran thus:

“Whereas Mrs. Pattammal Arumugam has this day declared herself before me as the keeper of the ‘Nehru Press’ at No. 120 Paper Mills Road, Perambur and whereas the said Mrs. Pattammal Arumugam is reported to be a communist sympathiser and is likely to incite or encourage the commission of cognisable offences involving violence or interference with the maintenance of law by printing objectionable communist literature in her press which was previously used for that purpose by her husband, who is a communist detenu.

I, Sri K. Ramaswami Gounder, Chief Presidency Magistrate, consider it expedient to call upon her under section 3(1) of the Indian Press (E.P) Act 23 of 1931 to deposit with me within ten days from this day, a security of Rs. 1000 either in cash or in Government of India securities”.

It is alleged that this order was passed without previous notice to the petitioner and without giving an opportunity to her to show cause why such an order should not be made. The petitioner seeks to have this order quashed by a writ of certiorari mainly on the ground that s. 3(1) of Act. XXIII of 1931 is void under art. 13 of the Constitution of India inasmuch as it is inconsistent with the provisions of art. 19(1)(a) and (g) of the Constitution. In the affidavit filed by her in support of the application she states that she is too poor to deposit the security and in any event that it was impossible for her to deposit the amount demanded within ten days, that therefore her sole source of livelihood has been taken away and she has been put to great loss and hardship.

Under s. 4 of the Press and Registration of Books Act, XXV of 1867, no person, shall keep in his possession any press for the printing of books or papers who shall not have made and subscribed a declaration before the Magistrate within whose local jurisdiction such press may be, that he has a press for printing at a particular place, a true and precise description of which is given in the declaration. S. 3(1) of the Press (Emegency Powers) Act XXIII of 1931 runs as follows:—

“Any person keeping a printing press who is required to make a declaration under section 4 of the Press and Registration of Books Act, 1867, may be required by the Magistrate before whom the declaration is made, for reasons to be recorded in writing, to deposit with the magistrate within ten days from the day on which the declaration is made, security to such an amount, not being more than one thousand rupees, as the Magistrate may in each case think fit to require in money or the equivalent thereof in securities of the Central

Government as the person making the deposit may choose.”

The consequences of a failure to deposit the security so required are contained in Ss. 11 and 12 of the Act. Under s. 11 the keeper of the press is liable to be punished criminally. S. 12 (1) provides that such press shall not be used for the printing or publishing of any newspaper, book or other document after the expiry of the time allowed to make the deposit unless the deposit has been made and under sub-sec. (2) of that section, where any printing press is used in contravention of sub-sec. (1), the Provincial Government may, by notice in writing to the keeper thereof, declare the press to be forfeited to the Government.

S. 3 (2) provides that where security has been deposited as required and for a period of three months from the date of the declaration, no order is made by the Government under s. 4 forfeiting such security, the security shall, on application by the keeper of the press, be refunded. S. 23 (1) of the Act confers on the keeper of a press a right to apply to the High Court to set aside certain orders passed under the Act including an order to deposit security passed under sub-sec. (3) of s. 3, but it was not disputed that there is no provision in the Act which confers on the keeper of the press the right to apply to this Court to set aside an order made under sub-sec. (1) of s. 3. S. 23 (2) of the Act no doubt entitles the keeper of the press to challenge an order of forefeiture made under sub-sec. (2) of s. 12, but only on the ground that the press was not used in contravention of sub-sec. (1). It is obvious therefore that the petitioner has no other remedy to get rid of the order passed against her.

The main contention which was pressed on us by learned counsel for the petitioner was based on art. 19 (1) (a) of the Constitution which declares that all citizens shall have the right to freedom of speech and expression, no doubt art. 19, (2) saves any existing law in so far as it relates to any matter which offends against decency or morality or undermines the security of or tends to overthrow the state. But counsel submitted that s. 3 (1) of the Press (Emergency Powers) Act cannot be deemed to be such a law. It appears to us without need for much discussion that s. 3 (1) itself cannot obviously be an enactment relating to any matter which undermines the security of and tends to overthrow the State. Having regard to the person from whom the security is required and the stage at which the order is made, it appears to us that there is nothing which can be said to have the effect of undermining the security or tending to overthrow the State. Nothing has been published so far because without a declaration the press cannot function. The only way of trying to bring this provision within art 19 (2) is by saying that it is intended to apply to the prospective publication of matter which may undermine the security of or tend to overthrow the State. We are of opinion that S. 3 (1) of the Act cannot be upheld as a preventive provision because art, 19 (2) would not justify preventive legislation. There must be matter to which the law could relate. The contingency of matter coming into existence cannot be covered by art. 19 (2). There is another formidable objection to the enforcement of a provision like S. 3 (1) of the Act. According to it the magistrate may require any keeper of a press to deposit security for any reason. He has only to record the reasons in writing. There is no indication in S. 3 (1) itself for what reasons the magistrate could require security to be furnished. It was contended by the learned Advocate General that in a particular case, the reasons given by the magistrate may fall within art. 19 (2) of the Constitution and the order in such a case would be valid though an order passed for reasons other than those mentioned in art. 19 (2) may be bad; and that it was not necessary to declare S. 3(1) to be wholly void. This argument must be overruled on the authority of the recent decision of the Supreme Court in Romesh Thappar v. The State of Madaras [1950] M.W.N 435, His Lordship Patanjali Sastri J. who delivered the judgment of the majority observed:

“Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, cl. 2 of art. 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to public security is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.”

We are also of opinion that the principle underlying the decision of another recent decision of the Supreme Court applies here. In Brij Bhushan v. State of Delhi [1950] M.W.N 429 the Supreme Court held that s. 7 (1) (a) of the East Punjab Public Safety Act which authorised the imposition of pre-censorship on a journal was void as unconstitutional. The ratio decidendi of that decision was that the imposition of pre-censorship on a journal was a restriction on the liberty of the press which is an essential part of the right of freedom of speech and expression declared by art. 19 (1) (a). The liberty of the press consists in laying no previous restraint upon publications and not in freedom from censure for criminal matters when published.” (Blackstone). The imposition of a security before the publication of any matter would certainly be an extremely unreasonable restriction.

We are also of opinion that s. 3 (1) is inconsistent with art. 19 (1) (g) of the Constitution which confers on all citizens the right to practise any profession or to carry on any occupation, trade or business. Art. 19 (6) permits reasonable restrictions on the exercise of the right so conferred “in the interests of the general public.” It was not suggested that the condition of furnishing security before declaration provided for the interests of the general public. It appears to us to be an unreasonable restriction on the exercise of the right to carry on the business of keeping a printing press.

The manner in which a provision like s. 3 (1) can be abused is illustrated by what happened in this case. When the petitioner submitted her application for permission to make a declaration, apparently a confidential report was called for from the police. The report was that the petitioner was a communist sympathiser and it was likely that the press will be used for printing prejudicial literature in furtherance of the aims and policy of the communist party. Actually when the order came to be passed the reasons given were that the petitioner was likely to incite or encourage the commission of cognisable offences involving violence or interference with the maintenance of law by printing objectionable communist literature in her press which was previously used by her husband who was a communist detenu. It is worth notice that the report of the police did not make any mention about the commission of cognisable offences involving violence.

In our opinion a provision like S. 3 (1) of the Indian Press (Emergency Powers) Act cannot be allowed to remain on the statute book after the coming into force of the Constitution.

The writ nisi issued will be made absolute and the order of the Chief Presidency Magistrate dated 13-2-1950 is hereby quashed.

C.M.P Nos. 2503 and 2777 of 1950.—These two applications relate to two orders similar to the order which we have quashed in C.M.P No. 141 of 1950. Following our decision in that case we hereby quash the orders in these two applications also.

N.T.RPetitions allowed

Mrs. Pattammal Arumugam v. The Chief Presidency Magistrate, Egmore Madras.

Opinion Summary — C.M.P. No. 1941 of 1950 (Rajamannar, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's (State / Advocate General) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mrs. Pattammal Arumugam v. The Chief Presidency Magistrate, Egmore Madras.

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