- (1.) This is a petition filed under Art. 32 of the Constitution of India praying for a declaration that S. 295A of the Indian Penal Code is ultra vires and unconstitutional and for a writ in the nature of certiorari quashing the petitioner's conviction under that section and for ancillary reliefs.
(2.) The material facts lie within a narrow compass. The petitioner is the editor, printer and publisher of a monthly magazine called Gaurakshak. The magazine is devoted to cow protection. In July or August, 1954, a Hindi Daily newspaper, named 'Amrit Patrika' of Allahabad printed and published an article or a cartoon about a donkey on which an agitation was started by the muslims of Uttar Pradesh. The editor and printer and publisher of 'Amrit Patrika' were prosecuted by the State, but they have been eventually acquitted by the High Court of Allahabad. In the meantime, in its issue for the month of kartik Samvat 2009 corresponding to November 1952, an article was published in the petitioner magazine 'Gaurakshak.' On 12th December 1952 the State Government ordered the prosecution of the petitioner on the basis of the said article. Accordingly on 8th June 1953 a complaint was filed in the Court of the District Magistrate, Kanpur by the Senior Superintendent of Police, Kanpur against the petitioner for offences under Ss. 153A and 295A of the Indian Penal Code. The Magistrate by his order dated 5th August 1953 charged the petitioner under Ss. 153A and 295A and committed the petitioner to the Sessions Court of Kanpur for trial. The petitioner pleaded not guilty. The learned Sessions Judge, by his judgment dated 16th November 1953, acquitted the petitioner of the charge under S. 153A but convicted him under S. 295A and sentenced him to 18 months rigorous imprisonment and a fine of Rs. 2000 and, in default of payment of the fine, to further rigorous imprisonment of 4 months. The petitioner filed an appeal to the High Court at Allahabad. The learned Single Judge, by his judgment dated 25th October 1956, held that the article was published with the deliberate and malicious intention of outraging the religious feelings of muslims and that the petitioner was guilty under S. 295A of the Indian Penal Code. The learned Judge, however, reduced the sentence of imprisonment to 12 months and the fine from Rs. 2,000 to Rs. 250 only. An application for certificate to appeal to this Court under Arts. 132 and 134 having been rejected by the High Court on 30th October 1956, the petitioner moved this Court for special leave to appeal from the judgment of the Allahabad High Court dated 25th October 1956. The petitioner also on 5th December 1956 presented the present petition under Art. 32 for the reliefs mentioned above. The petitioner also made an application in this Court along with the writ petition for stay of the sentence passed on him. On 18th December 1956 both the stay application and the petition for special leave, were, dismissed by this Court. The petition under Art. 32 has now come up for hearing. Presumably the petitioner has surrendered and is undergoing the sentence of imprisonment.
(3.) Learned counsel appearing in support of this petition urges that S. 295A of the Indian Penal Code is ultra vires and void inasmuch as it interferes with the petitioner's right to freedom of speech and expression guaranteed to him as a citizen of India by Art. 19 (1) (a) of our Constitution. The contention is that this section cannot be supported as a law imposing reasonable restrictions on the exercise of the right conferred by Art. 19 (1) (a) as provided in cl. (2) of the said Article. Learned counsel says that the interest of public order is the only thing in cl. (2) which may possibly be relied upon by the State as affording a justification for its claim for the validity of the impugned section. A law interfering with the freedom of speech and expression and imposing a punishment for its breach may, says counsel, be "in the interest of public order" only if the likelihood of public disorder is made an ingredient of the offence and the prevention of public disorder is a matter of proximate and not remote consideration. Learned counsel, points out that insulting the religion or the religious beliefs of a class of citizens of India may not Read to public disorder in all cases although it may do so in some case. Therefore, where a law purports, as the impugned section does, to authorise the imposition of restriction on the exercise of the fundamental right to freedom of speech and expression in language wide enough to cover restrictions both within and without the limitation of constitutionally permissible legislative action affecting such right, the Court should not uphold it even in so far as it may be applied within the constitutionally permissible 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, according to learned counsel, be hold to be wholly unconstitutional and void. Reference has been made to the cases of Romesh Thappar v. State of Madras, 1950 S C R 594: (A I R 1950 S C 124) (A) and Brij Bushan v. State of Delhi, 1950 S C R 605: (A I R 1950 SC 129) (B).;