Jagdish Sahai, J. - (1.) Sheikh Wahaj Uddin (hereinafter referred to as the accused) is being prosecuted for an offence punishable under Section 153-A, I.P.C. in the court of the Judicial (Officer (III) at Kanpur. He made an application to this Court under Article 228 of, the Constitution of India which was allowed by Desai, C. J. who directed the transfer of the case to this Court for decision of the question of vires of Section 153-A, I.P.C., but expressly said in his order that only this question shall be decided here.
(2.) We have heard Mr. Kunzru for the accused and the (earned Government Advocate for the State. Mr. Kunzru has made only the following two submissions before us: 1. That this Court had under Article 228 of the constitution of India no jurisdiction to direct that only the question of vires shall be decided by this Court and the case itself will not be disposed of here. He has therefore requested us to ignore the direction of Desai, C. J. dated the 9th of May, 1961, directing that only the question of vires shall be decided by this Court. 2. That the provisions of Section 153-A are void under Article 13 of the Constitution of India. No other submission has been made before us. We will take the submissions seriatim: Article 228 of the Constitution reads as follows:- "If the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may- (a) either dispose of the case itself, or (b) determine the said question of law and return the case to the Court, from which the case has been so withdrawn together with a copy of its judgment on such question, and the said Court shall on receipt thereof proceed to dispose of the case in conformity with such Judgment." The first part of this Article deals with the power to withdraw the case, It is only after the case has been withdrawn that the Court would decide either to act under Clause (a) and dispose of the case itself or to act under Clause (b) and after determining the question of law alone return the case to the Court from which it has been so withdrawn together with a copy of its judgment on such question, on the receipt of which the Court snail proceed to dispose of the case in conformity with such judgment. It appears to us that there is substance in Mr. Kunzru's contention that Desai, C. J. who was acting under Part I of Article 228 of the Constitution and was merely concerned with the question as to whether or not the case should be withdrawn, could not have passed an order restricting the discretion of the Bench before whom the case intimately came up for hearing by directing that only the question of law and not the whole case would be decided by, it. In our judgment this Bench is completely free to either act under Clause (a) or Clause (b) of Article 228 of the constitution and thus either dispose of the whole case itself of determine the question of law alone. It is obvious that it is only after the case has been heard on merits that the Court will be in a position to decide whether to dispose of the case itself or to decide the question of law alone. That being so, we ignore the direction of Desai, C. J. and would ourselves decide whether we would under the circumstances of the present case like to act under Clause (a) or Clause (b) of Article 228, of the Constitution.
(3.) Coming to the second submission of the learned counsel it would be profitable to reproduce tne provisions of Section 153-A I.P.C. The said section reads as follows:- "Whoever by words, either spoken or written, or by signs, or by visible representations or otherwise promotes or attempts to promote feelings of enmity or hatred between different classes of the citizens of India shall be punished with imprisonment which may extend to two years, or with fine or with both. Explanation; It does not amount to an offence within the meaning of this section to point out, without malicious intention and with an honest view to their removal, matters which are producing or have the tendency to produce feelings of enmity or hatred between different classes of the citizens of India." Mr. Kunzru has not been able to point out any good reason for holding the provisions of Section 153-A, I.P.C. to be ultra vires. All that he could contend was that the section is so widely worded as to infringe Article 19 of the constitution. That section only makes an act punishable if it promotes or attempts to promote feelings of enmity or hatred between different classes of the citizens of India. The language of the section is exact. There is neither any ambiguity nor vagueness about it. What has been made punishable has been stated in unambiguous, precise and clear words. The provision cannot be used to punish any one except those who either attempt to promote or promote class harted or class enmity. The language used in the section is not of an all pervading nature and does not suffer from being ail embracing with the result that because of language no one who does not either promote or attempt to promote class hatred or enmity can be convicted. We are therefore unable to hold that the section is either too widely worded or is indefinite, it has also been half heartedly suggested that the condition imposed by the section on the fundamental right of freedom of speech and expression guaranteed by Article 19 (1) (a) of the constitution are not reasonable. We are also unable to agree with this submission. Our country is inhabited by persons belonging to different religions, castes and classes. Our Constitution is based upon the principle that we must all sink or swim together and that in the long run prosperity and salvation are in union and not in division. The preamble of the Constitution solemnly declares the resolve to secure to its citizens fraternity and unity of the nation, its enacting Clauses also enshrine the same principle.;