Brij Bhushan v. The State of Delhi

                                             In the Supreme Court of India
Name of the CaseBrij Bhushan and Another v. The State of Delhi
Citation    1950 AIR 129,1950 SCR 605
Year of the Case1950
PetitionerBrij Bhushan and Another
RespondentThe State of Delhi
Bench/ JudgesFazal Ali, Saiyid; Kania, Hiralal J. (CJ); Sastri, M. Patanjali; Mahajan, Mehr Chand; Das, Sudhi Ranjan; Mukherjea, B.K.  
Acts InvolvedConstitution of India, East Punjab Public Safety Act, 1949.
Relevant Articles/ SectionsArticle 19 (1) (a), Article 19 (2), Section 7 (1) (c).  

Abstract

Media is the fourth pillar of governance. A Free press is mandatory for political freedom and democratic success. According to Lord Mansfield, “Free press means publication of views without government permission.” In this case, Supreme Court states the opinion regarding the right of the freedom of speech and expression which is guaranteed under Article 19 (1) (a) of the Indian Constitution with respect to the free press.

Introduction

Media is a medium for getting information. The Freedom of the press or freedom of the media is the freedom of communication and expression through mediums including various electronic media and publishing materials, while such freedom mostly implies the absence of interference from the overreaching state. There is no specific right regarding freedom of press mention in our constitution. It is implied that the editor and manager of a press have the same freedom of speech and expression as provided under Article 19(1)(a) of the fundamental right to a citizen of India, that is why there is no specific right provided to press in our constitution.

Any government may distinguish which materials are public or protected from disclosing to the public based on classification of information as sensitive with respect to the national interest, by the right reserve under Article 19(2) of the Indian Constitution.

Background of the case

This case is related with the freedom of the press, in which the petitioner claims the infringement of the fundamental right to the freedom of speech and expression as conferred under Article 19 clause (1) sub-clause (a) of the Constitution by the Chief Commissioner of Delhi, in the exercise of the power conferred by section 7 (1) (c) of the East Punjab Public Safety Act, 1949, in which ordered the editor of the paper (petitioner) to submit for scrutiny, in duplicate, before publication, till further order, all the communal matter and news and views about Pakistan.

Facts of the Case

In the first instance, the case is related to the right of freedom of speech and expression as guaranteed under Article 19 (1) (a) of the Constitution.

In this case the respondent, the chief commissioner of Delhi in the exercise of the powers conferred by section 7 (1) (a) of the East Punjab Safety Act,1949, as extended to the Delhi Province, satisfied that ORGANIZER, an English weekly of Delhi, has been publishing highly objectionable matter constituting a threat to public law and order, and direct the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further order, all communal matters and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by news agencies,

 in respect of which, the first applicant the printer and publisher, and the second applicant the editor of the English weekly of Delhi called ORGANIZER filed an application under Article 32 of the Constitution praying for the issue of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with the view to examine the legality of and quash the order made by the chief commissioner, in the exercise of the power conferred on him by section 7(1) (c) of the East Punjab Safety Act,1949.

Issue Raised

The main issue before the Court was whether section 7 (1) (c) which authorizes the imposition of such restriction regarding the publication of views about Pakistan falls within the reservation of clause (2) of Article 19.

Argument advanced

The Petitioner argued that the provision under section 7 (1) (c) infringes the fundamental right of the freedom of speech and expression which is guaranteed under Article 19 (1) (a) of the Constitution as it authorizes the imposition of a restriction on the publication of the journal which is not justified under clause (2) of Article 19 of the Constitution.

Related Provisions

Article 19 (1) (a) of the Indian Constitution.[1]

  • to freedom of speech and expression;

Article 19 (2) of the Indian Constitution.[2]

       (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offense.

Section 7 (1) (c) of the East Punjab Public Safety Act, 1949.[3]

“ The Provincial Government or any authority authorized by it in this behalf of satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the public Safety or the maintenance of public order may, by order in writing addressed to a printer, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny.”

Judgement

The honorable Justice Patanjali Sastri delivered the decision, where it was held that there can be little doubt that the pre-censorship on a journal is a restriction on the liberty of the press which is confirmed under Article 19 (1) (a) to freedom of speech and expression of the Constitution.

Court highlighted the Blackstone commentaries,[4] that, “the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to say what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.”

The main issue before the Court was, whether section 7 (1) (c) authorized the right to impose restriction upon publication falls within the reservation of clause (2) of Article 19. The Court delivered the judgement based on the decision given in Romesh Thappar v. The State of Madras. [5]

The State of Madras banned the entry and circulation of the journal of the petitioner in the State, in the exercise of the power conferred under the impugned Act. The Court stated that freedom of speech and expression includes freedom of propagation of ideas and that freedom insured by circulation, without circulation the publication would be of little value.

Regarding public Safety or public order under the impugned Act, the Court held that public Safety means the security of the Province i.e. “security of the State.” “The State” has been defined under Article 12 of the Constitution which includes, among other things, the government and the legislature of each of the erstwhile Provinces. In other terms clause (2) of Article 19 of the Constitution allowed the imposition on the freedom of speech and expression only in cases where offenses against public order are involved or which aim is to undermine the security of the state or overthrowing it, then it is justified for such imposing restriction of freedom of speech and expression, nothing less than endangering the state or threatening to overthrow it could justify the restriction of the freedom of speech and expression. Lastly, the Court allowed the application and prohibition on the circulation of the journal were quashed.

Accordingly, the reasons indicated in the above said judgement, the Court allowed the petitioner application and quash the impugned order of the Chief Commissioner of Delhi regarding imposition upon publication.

Concept Highlighted

In this case, Supreme Court highlighted that restriction on the liberty of the press unless it creates a danger to the State is the restriction on the freedom of speech and expression as provided under Article 19 (1) (a) of the Indian Constitution. This decision also confirms the United Nations Declaration of Human Rights, 1948 standards of freedom of opinion and expression.


[1] https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2019

[2] https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2019

[3] https://indiankanoon.org/doc/237273/

[4]https://indiankanoon.org/doc/237273/

[5]1950 AIR 124, 1950 SCR 594: https://www.lawyerservices.in/Romesh-Thappar-Versus-State-of-Madras-1950-05-26

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