P L D 1964 (W (PLP)

Attaullah Sajjad, Addl. A.-G. with Altaf Sikendar for Res pondents. Date of hearing: 6th July 1964. S. A. MAHMOOD, J.-Khwaja Muhammad Safdar, Member of the Provincial Assembly and General Secretary of the Punjab Zonal Muslim League (Council) made an application to the Deputy Commissioner, Lahore, under section 2 of the West Pakistan Use of Loud-speakers (Prohibition) Ordinance (XXXI of 1963) (hereinafter called the Ordinance) on the 5th of March 1964 for the grant of permission to use loud-speakers in a public meeting to be held on 23rd March 1964, outside the Mochi Gate, Lahore, to celebrate the Pakistan Day. The Deputy Commissioner, Lahore, by his order dated 19th March 1964, refused him permission to use loud-speakers. Mentioning in his order that the police had opposed their use and had sent objections by some people of the holding of such a meeting and the use of loud-speakers, and had also reported that there was grave danger of breach of peace, he held that section 144, Cr. P. C. having been imposed for a period of one month, commencing from 19th March 1964, an assembly of more than five persons was unlawful, and the use of loud-speakers in the face of the order under section 144, Cr. P. C. was out of the question. Khwaja Muhammad Safdar appealed to the Commis sioner, Lahore Division, under section 3 of the Ordinance, who rejected the appeal on the 21st of March 1964 on the ground that a perusal of the police report and order of the Deputy Commissioner showed that the local residents had objection to the use of loud-speakers by the Council Muslim League Party, that there were various factions opposed to the holding of the meeting and the use of loud-speakers and that if the required permission was granted, it might lead to a breach of the peace. Khwaja Muhammad Safdar thereupon brought this writ petition under Article 98 of the Constitution of the Islamic Republic of Pakistan praying that the Ordinance may be declared as void, being opposed to the fundamental right of freedom of speech and expression guaranteed by the Constitution and that the respondents be restrained from interfering with the use of loud-speakers by the petitioner, his Organisation and the people throughout the Province. This petition has been referred to a Full Bench in view of the importance of the question raised in the writ petition.

2. Section 2 of the Ordinance enacts- "No person shall use or cause to be used a loud-speaker in a public place for any purpose except with the permission of the Deputy Commissioner, and subject to such terms and con ditions as the Deputy Commissioner may impose: Provided that the prohibition shall not apply to the use of a loud-speaker for the purpose of `Azan'. Explanation.-For the purposes of this section public place means any place to which the members of the public have access with or without invitation." Section 5 lays down that whoever contravenes the provisions of section 2, shall be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees or with both. The offence is cognizable. Section 7 empowers the Government, by a general or special order, to exempt any person or class of persons, ox in respect of any occasion or class of occasions, or any place or class of places, from the operation of the Ordinance. Section 8 confers powers on the Government to make rules to give effect to the provisions of the Ordinance, but no rules have yet been promulgated.

3. The Ordinance cam, into force on the 22nd of October 1963. The Fundamental Rights introduced into the Constitution by the First Amendment Act (No. 1 of 1964) were pro mulgated on the 10th of January 1964. The ninth right guarantees freedom of speech, namely, that every citizen shall have the right to freedom of speech and expression, subject to any reason able 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 LC an offence. The learned counsel for the petitioner contends that section 2 of the Ordinance being inconsistent with this right, is void to the extent of such incon sistency, as provided in Article 6 of the Constitution, as amended. It is argued that the use of loud-speakers has, in modern times, become a necessary adjunct of freedom of speech and expression and to be heard, and that any law which places a prior restraint on the use of loud-speakers auditory devices is an obstruction in the exercise of the right, and as the Ordinance can be made the instrument of arbitrary suppression of free expression of views on national affairs, it must be struck down as violative of the Constitution, and is, therefore, void. Mr. Ataullah Sajjad, the learned Additional Advocate-General, on behalf of the State, argued that the use of loud-speakers was not a necessary part of the freedom of speech, that it had not been guaranteed by the ninth fundamental right, and that the Ordinance amounts to no more than regulation of the means of producing loud, raucous and unwelcome noises enacted in the interest of the law and order, peace and tranquillity for the common good.

4. The learned Additional Advocate-General raised a preliminary objection that the petition had become infructuous, because the date of the holding of the meeting, namely, the 23rd of March 1964, had expired. This contention is miscon ceived, because the petitioner is not impugning the particular order refusing to grant permission to the use of loud-speakers on that day, but is challenging the vires of section 2 of the Ordinance itself, as having been struck down by the ninth fundamental right in the Constitution. The refusal to grant the licence is only mentioned as one instance of the exercise of the power which gave a cause of action to the petitioner, who was A aggrieved thereby? and it is argued on his behalf that the Ordinance is a permanent menace to the freedom of speech and. expression, and is a dangerous weapon in the hands of the executive, for it may, in the garb of regulating the use of loud speakers, be used to stifle the right of freedom of speech and expression, amounting, in fact, to a denial of that right. The relief which the petitioner claims is not that the particular order of the Deputy Commissioner be set aside, but that section 2 of the Ordinance be declared to be void. There is, therefore, no force in the preliminary objection.

5. It is not pertinent for our purposes to examine the reasons which led the Deputy Commissioner or the learned Commissioner to refuse permission for the use of loud-speakers in the meeting to be held by the petitioner on the 23rd of March 1964, because their orders are not being challenged in this writ petition. We may, however, mention that the objection of the police to the holding of the meeting was with regard to the substance of the speeches to be delivered-as the police were not aware of what would be said at the meeting-and that some persons had an objection to the holding of the meeting therein. In substance, therefore, the objection was to the holding of the meeting and not so much to the use of loud-speakers. The police had, along with their report, also forwarded statements of certain persons stating that the holding of the meeting by the Council Muslim League might lead to a breach of the peace. Though this fact finds mention in the order of the Deputy Commissioner, it is not the real basis of his decision, but the Commissioner used it as the ground for dismissing the appeal.

6. The real reason for the Deputy Commissioner's refusing the licence was that an order under section 144, Cr. P. C. had been passed for a period of one month, commencing from 19th of March 1964, banning the assembly of more than five persons and, therefore, the use of a loud-speaker could not be allowed. This can be a valid reason for rejecting the application, and the particular order of the Deputy Commissioner had bee challenged, it may have been enough to dispose of the petition o that ground, unless it was proved that the very making of the order under section 144, Cr. P. C. was without jurisdiction, o was made mala fide.

7. The learned Commissioner rejected the appeal for the reason that the holding of the meeting might lead to a breach of the peace. As stated by Hughes, C. J. in Cox v. New Hampshire (312 U S 569, 574, 85 Law Ed.), Civil Liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining "public order" without which liberty itself would be lost in the excesses of unrestrained abuses. The exercise of the ninth fundamental right is in itself subject to reasonable restrictions in the interest o public order.

8. As would appear from the decision of the Supreme Court of the United States of America in Frank Hague v. Committee for Industrial Organisation (307 U S 496, 83 Law Ed.) wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating, thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. Therefore, the right to use parks for discussion or communication of views on public matters, especially those relating to national affairs, cannot be denied by the State to the citizens, though these rights are subject to the exigencies of lave and order and the maintenance of peace and tranquility.

9. For the objection that the use of loud-speakers and auditory devices is not a part of or included in the ninth right, the learned Additional Advocate-General relied on two Single Bench cases: Rejni Kant Vernia v State (A I R 1958 All. 360.) and Masud Alam and others v. Commissioner of Police and another (A I R 1956 Cal. 9). In the former case, the facts were that the Municipal Board, Allahabad, had framed certain bye-laws requiring a person to get the permission of the Executive Officer for use of a loud-speaker. The petitioner, as General Secretary of the Socialist Party, wanted to organise a public meeting and needed for the purpose the use of a loud speaker, He, therefore, moved a writ petition in the High Court praying for quashing the bye-law as being violative of the nineteenth Article of the Indian Constitution, guaranteeing freedom of speech and expression. V. G. Oak, J. held that the use of mechanical instruments like loud-speakers and amplifiers was not covered by the guarantee of freedom of speech and expression as contained in Article 19 (1) (a). In the latter case, the petitioners introduced a system of calling Azan in a mosque for purposes of prayers through an electrical loud-speaker five times a day. No previous permission was obtained from the Commissioner of Police for operating a loud-speaker. Some persons of the locality objected to the practice, and the Commis sioner, through the local thana officers, countermanded the use of the loud-speaker. Applications were then made to the Commissioner by the General Secretary of the West Bengal Pradesh Congress Committee and the mutwalli of the mosque for permission to allow the use of aloud-speaker in connection with the Azans, but the Commissioner refused to accord permis sion. A petition was moved in the High Court to prevent the respondent from giving effect to the order of the Commissioner. Sinha, J. while extolling the use of loud-speakers for magnifying sound for use in telephone and radio, etc., observed that it had helped to create not merely heaven but also a hell. The indiscriminate use of the electric loud-speaker in connection with religious festivals in the city was a standing grievance of every peace-loving citizen, the most offending instance being the uses to which it was put in connection with Hindu festivals, when the city was racked with raucous cacophony of a thousand loud-speakers, doling out cheap jazz or cinema music, which was not only singularly inappropriate to such occasion, but destructive of public health and morals. The precise objection raised before the learned Judge was that religious liberty had been curtailed by the suppression of use of loud-speakers to practice the Azan, but this contention was repelled by the learned Judge on the ground that a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protected was the religious faith and belief. If religious practices run counter to the public order or morality and health, then religious practices must give way before the good of the people and the State as a whole. The case is clearly distinguishable. The learned Judge upheld the objection of the Commissioner that the "continuous" use of loud-speakers would cause great inconvenience to the people residing in the locality, especially to invalids, and that if the practice was taken up in the city, it would cause great inconvenience and annoyance to citizens, losing sight of the fact that in the case of Azan, no continuous use of loud-speakers was involved, that an Azan lasts oily a few moments, and that it could not be treated as a nuisance. Besides, the twenty-fifth Article of the Indian Constitution guarantees the right to freely profess practise and propagate religion; and it is questionable whether it was not interference with this right to deny the right of amplifying an Azan.

10. With regard to the use of loud-speakers and auditory devices, the majority view of the Supreme Court of the United States of America in Samuel Said v. People of The State of New York (334 U S 558, 92 Law Ed. 1574) is that "loud-speakers are indispensable instruments of effective public speech. The sound truck has become an accepted method of political campaigning. It is the way people are reached. Must a candidate for Governor or the Congress depend on the whim or caprice of the Chief of Police in order to use his sound truck for campaigning? Must he prove to the satisfaction of that official that his noise will not be annoying to people? It cannot be gainsaid that the use of loud-speakers is a necessary accompaniment of a public meeting to he held in a public park in order to communicate the spoken words to the persons assembled there voluntarily". No argument is needed to prove that in modern times, with the vast growth of population, it is not possible, without the aid of loud-speakers, to make the native voice heard in public meeting by the persons who assemble to hear it. For the purpose of expression of views on public, religious or social matters and the development and improvement of society, or matters calculated to reform its systems, both governmental and sociological, the holding of public meetings the birthright of the people in free democratic State like ours. As observed by Shastri, J. in Romesh Thappar v. State of Madras (1950 S C R 602) freedom of speech and of the press lie at the foundation of all de mocratic organisations, for without political discussion, no public education, so essential for the proper functioning of the processes of popular government, is possible. One mode of propagation of one's views is through the press, and freedom of the press would be no freedom if there were no freedom of circulation of the printed matter. The learned Judges of the Supreme Court of the United States of America observed in Ex Parte Jacksons (96 U S 727, 24 Law. Ed. 877) Liberty of circulating is as essential to the freedom of press as freedom of publication; indeed without circulation the publication would be of little value." The other mode of conveying of one's views before the public, particularly in public meeting, is by speech. The freedom of speech would be no freedom if the views and ideas cannot be communicated to others. The loud-speakers are indispensable instruments of effective public speech. They are the means by which the native words can be communicated to the persons who assemble to hear them, and by which the speaker can make himself heard. It is therefore, idle to contend that the use of loud-speakers is not indispensable for freedom of public speech and expression.

11. In the instant case, section 2 of the Ordinance is challenged on the ground that it places unreasonable restrictions on the freedom of speech and is violative of the ninth fundamental right. It is true that the use of loud-speakers finds no mention in the ninth right, but as observed already, the use of loud speakers is "a necessary accompaniment of public speaking and indispensable instrument of effective public speech". The denial of permission to use a loud-speaker, means a denial of the right to communicate one's views and thoughts even to those who want to hear them. Section 2 of the Ordinance places a previous restraint on the right to public speaking and to be heard. It not only places a previous restraint on the right, but also an arbitrary and uncontrolled discretion in an executive authority to refuse a licence or the permission for any reason or no reason at all. The section is also capable of being used discriminately, as the Deputy Commissioner may grant permission to one person or party and refuse it to another, there being no guiding principles laid down by the Legislature, no check and no objective standard or control on the exercise of the power. The case of Samuel Saia v. People of the State of New York already cited, contains much which is pertinent to the particular case in hand. It was a case in which, under section 2 of the Municipal Ordinance, it was made unlawful for any person to maintain and operate in any building or in any premises or in any automobile, motor truck or other motor vehicle, any radio device, mechanical device or loud speaker or any device of any kind whereby the sound there from was cast directly upon the streets and public places, and where such device was maintained for advertising purposes or for the purpose of attracting the attention of the passing public, or which was so placed and operated that the sounds coming there from could be heard to the annoyance or inconvenience of the travelers upon any street or public places or of persons in neighboring premises. Section 3 provided for an exemption from violation of section 2 in the case of public dissemination, through radio loud-speakers, of items of news and matters of public concern and athletic activities, provided the same was done under permission obtained from the Chief of Police. Samuel Saia, who was a Minister of the religious sect known as Jahovah's Witnesses, obtained permission from the Chief of Police to use sound equipment, mounted atop his car, to amplify lectures on religious subjects. These lectures were given on Sundays at a fixed place in a public park. When the permit expired, he applied for another one, but was refused on the ground that complaints had been made. He nevertheless used his equipment on four occasions without a permit. He was tried for violation of the Ordinance and was convicted. On appeal to the Supreme Court of United States of America, section 3 of the Ordinance was held to be unconstitutional on its face on the ground that it established a previous restraint on the right of free speech in violation of the First Amendment, which was protected by the Fourteenth Amendment against State action. The reasons were that to use a loud-speaker or amplifier one had to get a permit from the Chief of Police, and no standards had been prescribed for the exercise of his discretion. The statute was not narrowly drawn to regulate the hours or places of use of loud-speakers, or the volume of sound to which they must be adjusted. It was, therefore, held that the Ordinance had all the voices of the ones which the Supreme Court struck down in Cantwell v. Connecticut (310 U S 296, 84 Law Ed. 1213); Lovell v. Criffan (303 U S 444, 82 Law Ed. 949) and Hague v. Committee for Industrial Organization (307 U S 496, 83 Law Ed. 1423). In Cantwell v. State of Connecticut, a licence had to be obtained in order to distribute religious literature. Discretion was left with a public officer, to determine whether to approve the cause and whether it was religious. The Supreme Court held that even the availability of a judicial remedy for abuses in the system of licensing did not obviate the constitutional objections to a statute that authorized a previous restraint upon the freedom of speech and of religion. Again, in Lovell v. Criffan the Supreme Court of the United States of America held as void on its face an Ordinance requiring a licence for the distribution of literature, though the Ordinance was dressed in the garb of control of a nuisance, on the ground that it infringed the constitutional freedom of the press, In Hague v. Committee for Industrial Organization it was held that though the official concerned was empowered by the law to refuse the permit, if in his opinion the refusal would prevent "riots, disturbances or disorderly assemblage", the Ordinance was void on its face, because it could be made the "instrument of arbitrary suppression of free expression of views on national affairs." This is the precise objection which is raised in the instant case also. With regard to section 3 of the Ordinance under consideration in Saia's case, it was observed that it had the same defects, as the right to be heard was placed in the uncontrolled discretion of the Chief of Police, who stood athwart the channels of communication as an obstruction which could by removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint was difficult to imagine. Unless they were to retreat from the firm positions they had taken in the past, they must give freedom of speech in the case the same preferred treatment that they gave freedom of religion in the Cantwell's case, freedom of the press in the Griffin case, and freedom of speech and assembly in the Hague's case. The learned Judges held that the Ordinance was a dangerous weapon if it were allowed to get a hold on the public life. The same observations apply with full force to section 2 of the present Ordinance. The Deputy Commissioner stands athwart the channels of communication as an obstruction to effective public speaking. He has the power of a previous restraint, and a more drastic power is difficult to think of. Thus the right to t be heard and to communicate one's views on religious, political and other subjects is placed in the uncontrolled discretion of the Deputy Commissioner, which renders the power conferred under section 2 of the Ordinance violative of the guarantee provided in the ninth fundamental right.

12. It may be mentioned that in Said's case, Mr. Justice Frankfurter, Mr. Justice Reed and Mr. Justice Burton differed with the other Judges. Mr. Justice Frankfurter observed that while the native power of human speech could interfere little with the self-protection of those who did not wish to listen, the use of loud-speakers and auditory devices may be outrageously misused and be a nuisance. There was no constitutional right to force people to listen and they could not deny the right of a State to control the broadcasting devices so as to safeguard the rights of others not to be assailed by intrusive noise, but to be free to put their freedom of mind and attention to uses of their own choice. This argument cannot legitimately be used in the case of public speeches on political platforms. Mr. Justice Jackson was of the view that the Constitution could not prohibit a municipality from policing, controlling or forbidding erection of such equipment by a private party in a public park. Certainly, precautions against annoyance or injury from operation of such devices were not only appropriate but a duty of the city in supervising such public premises, and a very appropriate means to supervision was a permit. (Cases of public speaking on political 1 questions cannot normally and usually be treated as a nuisance). In his view, this was not a case relating to free speech at all for the petitioner had not been denied the right of free speech or facilities therefore. It was further held that the society had the right, to control, as to place, tune and volume, the use of loud-speaking devices for any purpose, provided its regulations were not unduly arbitrary, capricious or discriminatory. The majority Judges also expressed the view that a statute could regulate the hours, the places for the use of loud-speaker, and the volume of sound Regulation of these matters is undoubtedly not unconstitutional. There can be no manner of doubt that the State can prohibit or restrict the use of loud-speakers during certain hours; for example, at night, and even at other hours in some localities where their use at those hours may cause a nuisance, as regards places, for example near mosques, temples, churches, schools, colleges, hospitals and in purely residential localities; and the volume of sound which they may produce. Section 2 of the Ordinance is not directed to these ends, and is not narrowly drawn.

13. It remains to mention the case of Charles Kovacs v. Albert Cooner (336 U S 77, 93 Law Ed. 513). In this case, a city ordinance prohibited the operation upon the streets of sound amplifiers or other instru ments which omit "loud and raucous noises" and were attached to vehicles operated or standing upon such streets. Kovacs was convicted and the conviction was maintained by the Supreme Court. The argument that the Ordinance infringed upon the constitutional right of free speech was repelled. Referring to the Saia's case, the learned Judges of the Supreme Court observed that the Ordinance was unconstitutional on its face as it established a previous restraint on free speech with no standards prescribed for the exercise of discretion by the Chief of Police, for the Ordinance undertook precensorship of speech or religious practices before permitting their exercise, and the Constitution forbade its enforcement. The Ordinance under consideration in Kovacs case was held not to be a case of that character, but a case of exercise of authority granted to the city of New Jersey to prevent disturbing noises and nuisances which were well within the municipality's power to control, for the police power of a State extended beyond health, morals and safety and compre hended the duty, within constitutional limitations, to protect the well-being and tranquility of a community. Thus, a State or city may prohibit acts which are likely to bring evil or harm to its people.

14. Saia's case and the Kovacs' case bring out the difference in a case of legislation where freedom of speech and expression, its communication to the people and of being heard is restrained and abridged or is placed under arbitrary control and previous restraint without there being any standards laid down for the exercise of discretion by an executive authority, and a case where for the good and well-being of the people, health, morality, safety and tranquility of the community, a legislation is brought to control loud and raucous noises, which amount to a nuisance.

15. As section 2 of the Ordinance is, in our view, violative of the ninth fundamental right, we hold that it is void. We are told that instructions have been issued by the Government on a decision taken in a Governor's Conference that the use of loud-E speaker may be freely allowed by the Deputy Commissioners, but these instructions are liable to change, and are not relevant for validating the Ordinance, which has been found to violate a right conferred on the citizens by the Constitution. We, therefore, accept this writ petition with costs and direct that the respondents and its officers shall refrain from exercising any powers under and making use of or giving effect to section 2 of the Ordinance. A. H. Petition accepted.