P L D 1958 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.--‑This , petition by Begum Zebunnissa Hamidullah for an appropriate order under Article 22 of the Constitution challenges the validity of an order of the Central Government, made under paragraph (c) of the clause (i) of subsection (1) of section 12 of the Security of Pakistan Act (XXXV of 1952) prohibiting for a period of six months the publication of "The Mirror", an illustrated `English Monthly, of which the petitioner is the editor and publisher. The order which was served on the petitioner on 9th November, 1957, was in the following terms :‑‑‑ "Whereas the Central Government considers it expedient to prohibit for a period of six months the publication of the monthly periodical the Mirror, of Karachi ; Now, therefore, in exercise of the powers conferred by paragraph (c) of clause (i) of subsection (1) of section 12 of the Security of Pakistan Act, 1952 (XXXV of 1952), the Central Government is pleased to prohibit for a period of six months from the date of this order the publication of the said periodical, the Mirror, of Karachi. (Sd.) HAMEEDUDDIN AHMAD, Deputy Secretary to the Government of Pakistan". The order was accompanied by an annexure in which the ground for the action taken was stated to be that the magazine, in its issue of November 1957, had printed under the caption MATTERS OF MOMENT an article which "is defamatory in the first place, and in the second trespasses beyond the limits of legitimate comments and is of a nature which tends to bring or attempts to bring the Government into hatred and contempt". Mr. Brohi, learned counsel for the petitioner, who has pre sented the petitioner's case before us, has attacked the order in question on the grounds; (1) that on the date the order was passed the Security of Pakistan Act was, in law, not on the Statutes Book ; and (2) that by reason of Article 8 of the Constitution section 12 of the Security of Pakistan Act under which the order was wade has ceased to be operative. The Security of Pakistan Act, XXXV of 1952, was passed on 5th May 1952, and by reason of subsection (3) of section 1 was to remain in force for 3 years. The life of the Act was extended once by an Act and thrice by Ordinances, the last Ordinance, XI of 1957, which was promulgated on 2nd October; 1957, amending section 3 so as to keep the Act in force until the 30th day of April 1958. This Ordinance, however, was substantially the same as the earlier Ordinance, No. III of 1957, which having been promulgated on 27th April 1957, had, under clause (2) of Article 69 of the Constitution, ceased to operate on 3rd October 1957. The point made by Mr. Brohi is that the Ordinance under which the order in question was made is unconstitutional because it had merely re‑enacted the expired Ordinance, III of 1957, which had not been converted into an Act by the National Assembly which met on 22nd and was prorogued on 31stA August 1957. A very vigorous argument has been addressed' to us on this part of the case, but we do not consider it necessary to determine the question because the order complained of is unsustainable on another ground which we proceed to state. Article 8 of the Constitution declares :‑-- "Every citizen shall have 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 to an offence." The Security of Pakistan Act, as stated in the Preamble, was intended to provide for special measures to deal with persons acting in a manner prejudicial to the defence, external affairs and security of Pakistan, or the maintenance of supplies and services essential for the community, or the maintenance of public order in the Federal Capital. These measures are stated in different sections of the Act, including section

12. Under section 3 a person may be detained or restrictions on his movement imposed by Central Govern ment "with a view to preventing him from acting in any manner prejudicial to the defence or the external affairs or the security of Pakistan, or any part thereof, or for the maintenance of public order". Under section 10 "(1) If the Central Government is satisfied with respect to any associa tion that there is danger that the association may act in a manner or be used for purposes prejudicial to the defence or external affairs or the security of Pakistan or any part thereof or to the maintenance of public order in the Federal Capital, it may, by written or notified order, direct the wind ing up of the association . . . . . " And under section 11 where in the opinion of the Central Government, any document made, printed or published contains any news, report or information likely to endanger the defence or external affairs or security of Pakistan or any part thereof or the maintenance of public order in the Federal Capital, it may take certain action against the editor, printer or publisher or person in possession of such document. It will be noticed that the condition precedent .for the taking of action against a person under these sections is that he should be likely to endanger the defence, or external affairs, or security of Pakistan or any part thereof, or the maintenance of public order in the Federal Capital. But when we come to section 12 we find it laying down; "The Central Government or any authority empowered by it in this behalf, may, if it considers necessary or expedient, (i) by order addressed to a printer, publisher or editor or printers, publishers and editors generally : (a) require that all matter or any matter relating to a particular subject or class of subjects, shall, before being published in any document or class of documents, be submitted for scrutiny to an authority specified in the order ; (b) prohibit or regulate the making or publishing of any document or class of documents, or of any matter relating to a particular subject or class of subjects or the use of any press as defined in the Press (Emergency Powers) Act, 1931, (c) prohibit for a specified period the publication of any newspaper, periodical, leaflet or other publication ; or (ii) refuse to permit any person to make a declaration under subsection (2) of section 5 of the Press and Registration of Books Act, 1867. (2) If any person contravenes any order made under subsection (1), then, without prejudice to any other proceedings which may be taken against such person, the Central Government may declare to be forfeited to Government every copy of any document published or made in contravention of such order and any press as defined in the Press (Emergency Powers) Act, 1931, used in the making of such document." Unlike the other provisions of the Act to which we have referred, section 12 does not require, to the making of any order under this section, the condition precedent that the person against whom action is to be taken should be likely to endanger the defence, or external affairs, or security of Pakistan or any part thereof, or the maintenance of public order in the Federal Capital. The powers of the Central Government, when it acts under section 12, are circumscribed by no qualifications, limitations or conditions except that it should "consider it 'necessary or expedient to make the order". On this construction, the section clearly comes in conflict with Article 8 of the Constitution which guarantees to every citizen the 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 Stales, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence". It is obvious that if the restriction imposed by law be that a person is not to use Words or any other form of expression which may be prejudicial td the defence, external affairs and security of Pakistan, the restriction imposed on the freedom of speech and expression will be a reasonable restriction falling within the meaning and terms of Article 8 of the Constitution, because a person who prejudices the defence, external affairs, or security of Pakistan, must be held to have acted against "the interest of the security of Pakistan". But section 12 of the Act, on its plain terms, permits the Central Government or any authority empowered by it to act under that section merely if it considers it necessary or expedient so to act, irrespective of any specific consideration. From a perusal of the order challenged in this case it seems to be perfectly clear that the authority or officer who made that order had not the faintest idea of Article 8 of the Constitution or of the objects stated in the Preamble of the Act. The order makes no reference to the defence, or external affairs, or security of Pakistan, or the maintenance of public order in the Federal Capital, and not the remtest allusion to any of the objects mentioned in the Preamble of the Act is to be found in the Annexure in which the grounds for the action taken are recited. The reasons given in that Annexure are defamation, trespassing beyond the limits of legitimate comments, and bringing or attempting to bring the Govern ment into hatred and contempt. None of these grounds, however, is to be found in the Preamble of the Act, and it seems to be perfectly clear to us that the authority taking the impugned action never thought that its powers were limited by the objects which are mentioned in the Preamble. He seems to have construed section 12 as giving an unqualified power to the Government to prohibit a publication if the Government or the authority empowered by it just considers it to be expedient or necessary to stop the publication. The Security of Pakistan Act is a pre‑Constitution Act, having been passed in May 1952 when no basic rights had been guaranteed by the Constitution and the Government had absolute authority to restrict the freedom of speech an expression by securing legislation to enable it to act in they manner it considered expedient. After the Constitution; however, these powers no longer exist and neither the legis lature nor the Government can impose any restriction on freedom of speech and expression except for the purposes mentioned in Article

8. In the present case, defamatory character of the publication is alleged, but neither that ground nor the ground "exceeding the limits of legitimate comment", nor the ground "bringing or attempting to bring the Government into hatred oar contempt is to be found in the Act under which action was taken. It is, therefore, obvious that the; action was taken by the Government in complete ignorance of the constitutional right to freedom of speech and expression and was therefore in excess of the authority possessed by the Government. By so holding we should not be taken to mean as laying down that the freedom of speech and expression guaranteed by the Constitution of Pakistan implies a freedom for her citizens to publish such attacks on the Head of the State, and that if he be so vilified the only course open to him to vindicate himself is to appear as an ordinary plaintiff or a prosecutor in a Court of law. The Constitution expressly provides that the freedom of speech and expression is subject to reasonable restrictions to be imposed by law and it can never be contended that the right to free speech includes the right to defame or the right of the Press to undermine the security of the State. All that we say in this case is that section 12 of the Security of Pakistan Act, in so far as it permits the Government to prohibit the publication of a news paper for any reason whatsoever, has, after the Constitution become unenforceable and that accordingly action under that section could not be taken in the present case: There may perhaps be some other law under which action might have been possible in respect of the publication in question, and the legislature can certainly make a law imposing restrictions against publications of this nature. We accept this petition and set aside the order of the Government as being illegal and unconstitutional. The petitioner will have her costs of the petition. A. H. Petition accepted.