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Writ Petition No. 779 of 1957, decided on 2nd May 1958, under Article 170 of the Constitution.
(a) Press (Emergency Powers) Act (XXIII of 1931), S. 7 (1)‑Reason that newspaper was likely to be used for "objectionable purposes"‑No compliance with S. 7 (1).
It is not enough that the District Magistrate considers it possible that the press might be used for one of the purposes forbidden by section 4 (1). The very fact that the order makes a general reference to all the purposes of section 4 (1) shows that it was not made for any particular reason and that it was made as though such an order could be made in the ordinary course.
Held, that such an order was no compliance with section 7 (1) of the Press (Emergency Powers) Act (XXIII of 1931).
(b) Press (Emergency Powers) Act (XXIII of 1931), S. 7 (1) Repugnant to Art, 8, Constitution of Pakistan.
Article 8 of the Constitution guarantees to every citizen "the right to freedom of speech and expression, subject to any reasonable restrictions imposed .by law in the interest of the security of Pakistan, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement of an offence." In other words, the restrictions to which the right of freedom of expression is subject must be relatable to the objects mentioned in Article 8. Subsection (1) of section 7 of the Press Act, however, empowers the District Magistrate to order deposit of security for a reason which may not be one of the reasons stated in Article 8. To that extent, therefore, it is in excess of the constitu tional requirement.
Restraint upon free expression of views imposed by the pro vision for a demand of security such as in section 7 (1) of the Act, is of a preventive nature and is not contemplated by Art. 8.
Section 7 (1) will operate harshly, even if it were honestly intended to cover cases where, from the past history of a publisher, the District Magistrate has good reason to think that his printing activities will be nefarious. There is a remedy for such cases, however, both in subsection (3) of section 7 and under the general law, and the restriction which it imposes on the honest publisher is more unreasonable than the safeguard which it provides against the dishonest publisher.
"The liberty of press consist in laying no previous restraint upon publications and not in freedom from censure for criminal matter when published."
Therefore, subsection (1) of section 7, Press (Emergency Powers) Act, is no longer good law and demand of security under it is illegal.
Mrs. Pattammal v. Chief Presidency Magistrate, Egmore A I R 1951 Mad. 950 ; Dr. Bhanushanker v. State A I R 1952 Saurashtra 57 and Blackstone's Commentaries rel.
Petitioner in person.
M. A. Zaidi for respondents.
Date of hearing : 30th April 1958.
‑The petitioner, Mahmud Zaman, who is printer and publisher of a newspaper called "The Patriot," prays for the cancellation of an order made by the District Magistrate, Lahore, under section 7 (1) of the Press (Emergency Powers) Act, calling upon him to deposit security in Rs. 1,000.
2. Under section 7 (1), "any publisher of a newspaper, who is required to make a declaration under section 5 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."
3. The order of the District Magistrate requires security to be deposited "in view of the likelihood of the venture being used for objectionable purposes enumerated in subsection (I) of section 4 of the Indian Press (Emergency Powers) Act (XXIII of 1931) read with section 16 of the Criminal Law Amendment Act (XXIII of 1932)." The reasons enumerated in section 4, subsection (1) of the Press (Emergency Powers) Act are ten and include such things as the seduction of an officer, soldier, 1 sailor, or airman: from his allegiance; the condemnation of the creation of Pakistan by virtue of the Partition of India, and the bringing into hatred or contempt the government established by law.
4. The order is attacked on four grounds, firstly, that the reasons recorded by the District Magistrate are so general and sweeping that they amount to recording no reason at all ; secondly, that section 7 (1) gives the District Magistrate an unbridled power to require the deposit of the security for any reason not connected either with section 4 (1) or with Article 8 of the Constitution ; thirdly, that inasmuch as the deposit of security before publication envisages previous restraint, Article 8 of the Constitution was violated ; and, fourthly, that the pro cedure prescribed by section 7 (1) does not contain any judicial safeguards against the exercise of arbitrary power and makes no provision for an opportunity to be given to the publisher to show cause against any of the reasons which the District Magistrate might use in support of his order.
5. As regards the first point, the written statement which has been signed by the District Magistrate merely says that "provisions of section 7 (1) of the Act require that reasons are to be given for demanding the security, which has been done in the present case." It is obvious that a reason must exist in the mind of the District Magistrate if he requires the deposit of security and it is not enough that he considers it possible that the press might be used for one of the purposes forbidden by section 4 (1). The very fact that the order makes a general reference to all the purposes of section 4 (1) shows abundantly that it was not made for any particular reason and that it was A made as though such an order could be made in the ordinary course. There is, consequently, no compliance with the provisions of section 7, subsection (1).
6. Secondly, Article 8 of the Constitution guarantees to every citizen "the right to freedom of speech and expression, subject to any reasonable restrictions imposed by law in the interest of the security of Pakistan, friendly relations with foreign States, public order, decency or morality, or in relation to con tempt of Court, defamation or incitement of an offence." In other words, the restrictions to which the right of freedom of B expression is subject must be relatable to the objects mentioned in Article 8. Subsection (1) of section 7 of the Press Act, however, empowers the District Magistrate to deposit security for a reason which may not be one of the reasons stated in Article 8. To that extent, therefore, it is In excess of the constitutional requirement.
7. Thirdly, when Article 8 requires that every citizen shall have the right to express himself freely, it does not mean that he can be restrained before he has actually expressed himself. Whatever restraint is to be placed on him, will naturally relate to the manner of his expression. If he is required to fulfil a condition before actually expressing himself, the restraint will be of a preventive nature, and that kind of restraint, in our opinion, is not contemplated by Article 8. C Where preventive action was to be taken, an express pro vision was made for it as in Article 7, clause (3) which leaves room for a law providing for preventive detention, notwith standing the principal safeguards of Article 7 against arrest and detention.
8. It is possible to contemplate cases where a perfectly harmless publisher may be prevented from expressing himself freely because he is not able to deposit a security of Rs. 1,000 although he possesses enough money and merit to take out a hundred prints or so and establish an honest reputation for himself. Section 7 (1) will, therefore, operate harshly, I even if it were honestly intended to cover cases where, from the past history of a publisher, the District Magistrate has good reason to think that his printing activities will be nefarious. There is a remedy for such cases, however, both into subsection (3) of section 7 and under the general law, and the restriction which it imposes on the honest publisher is more unreasonable than the safeguard which it provides against the dishonest publisher.
9. Views expressing disapproval of previous restraint have been recorded by Indian Judges in at least two cases which have been brought to our notice : Mrs. Pattammal v. Chief Presidency Magistrate, Egmare (A I R 1951 Mad. 950) and Dr. Bhanushanker v. State (A I R 1952 Saurashtra 57). See also Blackstone's Commentaries according to which "the liberty of press consists in laying ho previous restraint upon publications and not in freedom from censure for criminal matter when published."
10. We do not find it necessary to go into the fourth contention which relates to procedural inconsistencies with the Constitution.
11. In the view that we take, .subsection (1) of section 7, F Press (Emergency Powers) Act, is no longer good law. We accept the petition with costs and direct the District Magistrate to cancel his order requiring the petitioner to furnish security under section 7, subsection (1) of the Press (Emergency Powers) Act.
A. H. Petition accepted.
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