A) ABSTRACT / HEADNOTE

The landmark judgment in Brij Bhushan and Another v. The State of Delhi, AIR 1950 SC 129; 1950 SCR 605 dealt with the scope and limits of the freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. The petition was filed under Article 32 of the Constitution by the editor and publisher of a weekly journal “The Organizer,” challenging a pre-censorship order issued by the Chief Commissioner of Delhi under Section 7(1)(c) of the East Punjab Public Safety Act, 1949, as extended to Delhi. The core constitutional question involved the validity of pre-censorship laws imposed on the press for public safety and maintenance of public order and whether such laws fall within the reasonable restrictions permissible under Article 19(2).

The majority of the Supreme Court, in a 5:1 decision, held that the pre-censorship order violated Article 19(1)(a) and was not protected by Article 19(2), which at that time did not mention “public order” as a ground for restricting speech. The Court found the impugned provision unconstitutional and void. The lone dissent by Justice Fazl Ali emphasized that public safety and order are intricately linked to state security, and thus the provision could fall within the scope of Article 19(2). This decision laid the foundation for the press freedom jurisprudence in India and was an important companion case to Romesh Thappar v. State of Madras, AIR 1950 SC 124; 1950 SCR 594, decided on the same day.

Keywords: Freedom of Press, Article 19(1)(a), Pre-censorship, Public Safety, Public Order, Constitutionality, Press Laws, Writ Jurisdiction, Section 7(1)(c), Supreme Court

B) CASE DETAILS

i) Judgement Cause Title:
Brij Bhushan and Another v. The State of Delhi

ii) Case Number:
Petition No. XXIX of 1950

iii) Judgement Date:
26 May 1950

iv) Court:
Supreme Court of India

v) Quorum:
Harilal Kania C.J., Saiyid Fazl Ali J., Patanjali Sastri J., Mehr Chand Mahajan J., B.K. Mukherjea J., S.R. Das J.

vi) Author:
Majority Opinion by Patanjali Sastri J.; Dissent by Fazl Ali J.

vii) Citation:
1950 SCR 605; AIR 1950 SC 129

viii) Legal Provisions Involved:
Article 19(1)(a) and 19(2) of the Constitution of India
Section 7(1)(c) of the East Punjab Public Safety Act, 1949

ix) Judgments overruled by the Case:
None

x) Case is Related to which Law Subjects:
Constitutional Law, Media Law, Human Rights Law, Administrative Law

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

This case marked one of the earliest constitutional interpretations by the Supreme Court of India concerning the limits of freedom of expression in a newly independent democracy. The Constituent Assembly had envisaged free speech and a free press as foundational elements of democratic society. However, the post-Partition era in India was politically sensitive, and the government increasingly invoked laws aimed at maintaining public order and safety to suppress dissent and control the press. In this context, Section 7(1)(c) of the East Punjab Public Safety Act, which enabled the imposition of pre-censorship, became the focal point of challenge.

The Organiser, a publication linked to right-wing nationalist ideology, had published articles critical of the government’s policies, especially concerning Pakistan. The Chief Commissioner of Delhi issued a censorship order requiring prior submission for scrutiny of all materials related to Pakistan or communal matters. The petitioners approached the Supreme Court under Article 32, claiming violation of their fundamental rights under Article 19(1)(a). The Court had to interpret the extent to which the State could restrict expression, particularly when the Constitution had only limited grounds for imposing such restrictions.

The judgment thus touched upon freedom of press, pre-censorship, public order, and the judiciary’s power to protect fundamental rights. It was also closely tied to the Romesh Thappar case, decided on the same day, further emphasizing the judiciary’s early commitment to civil liberties in the Republic of India.

D) FACTS OF THE CASE

The petitioners, Shri Brij Bhushan, printer and publisher, and K.R. Halkani, editor of the “Organiser”, challenged an order dated 2nd March 1950 issued by Shankar Prasad, Chief Commissioner of Delhi, under Section 7(1)(c) of the East Punjab Public Safety Act, 1949, as extended to Delhi. The order mandated that the petitioners must submit for pre-publication scrutiny all content related to communal matters, Pakistan, cartoons, and photographs except those obtained from official or authorized news agencies. The justification was public safety and maintenance of public order, as the Organiser was said to be publishing “highly objectionable matter” posing a threat to law and order.

The petitioners invoked Article 32 of the Constitution, asserting that this pre-censorship restriction infringed their right to freedom of speech and expression under Article 19(1)(a) and was not saved by the exceptions under Article 19(2).

The respondents, represented by the Attorney General M.C. Setalvad, defended the order as a lawful preventive action necessary in view of inflammatory writings that could incite communal disharmony in a fragile national environment.

E) LEGAL ISSUES RAISED

i) Whether Section 7(1)(c) of the East Punjab Public Safety Act, 1949, enabling pre-censorship, was consistent with Article 19(2) of the Constitution?

ii) Whether pre-censorship of a newspaper amounted to an unconstitutional restriction on the freedom of the press under Article 19(1)(a)?

iii) Whether concerns of public safety and order fall within the permissible grounds of restrictions under Article 19(2) in its then-existing form?

F) PETITIONER/ APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that:

The impugned provision violated Article 19(1)(a) as it imposed prior restraint on the publication of news, opinions, and cartoons, infringing the core of freedom of speech and expression. They emphasized that freedom of the press is an essential part of the democratic process and should not be curtailed without clear constitutional sanction.

They contended that Article 19(2) at the time permitted restrictions only on grounds of libel, slander, defamation, contempt of court, decency, morality, and security of or tendency to overthrow the State. It did not mention “public order” or “public safety”, hence the restriction was ultra vires.

They argued that the pre-censorship order was a form of executive overreach and arbitrary since it conferred unguided discretion upon the Chief Commissioner, violating principles of natural justice and rule of law. They relied heavily on Blackstone’s Commentaries, which stated that freedom of the press means absence of prior restraint, and any such restraint destroys liberty.

They also invoked Romesh Thappar v. State of Madras, AIR 1950 SC 124, where the Court had struck down a similar provision imposing restrictions on press freedom for public order, holding that Article 19(2) did not include public order as a ground for restriction.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that:

The restriction was imposed under a validly enacted law, the East Punjab Public Safety Act, extended to Delhi in response to the tense communal and political environment prevailing post-Partition. The respondents maintained that the Organiser was publishing provocative content, affecting public law and order, and thus, pre-censorship was a preventive measure, not a punitive one.

It was argued that “public safety” and “maintenance of public order” were conceptually included within the expression “security of the State”, and therefore the restriction was justifiable under Article 19(2). They pointed to the Preamble and context of the Act, which focused on emergency situations and special measures.

The dissenting judge, Justice Fazl Ali, echoed this argument, emphasizing that public safety and public order were intertwined with state security, and the Constitution did not require the State to wait for disorder to erupt before acting.

The respondents further argued that fear of misuse of law was not a valid ground for striking it down as unconstitutional.

H) RELATED LEGAL PROVISIONS

i) Article 19(1)(a) of the Constitution of India –
Guarantees to all citizens the right to freedom of speech and expression.

ii) Article 19(2) of the Constitution of India (as it stood in 1950) –
Permits the State to make laws imposing “reasonable restrictions” on the exercise of the right under Article 19(1)(a) in the interests of the security of the State, public morality, defamation, etc., but not yet including ‘public order’, which was added later by the First Constitutional Amendment in 1951.

iii) Article 32 of the Constitution of India –
Empowers individuals to approach the Supreme Court directly for enforcement of fundamental rights.

iv) Section 7(1)(c) of the East Punjab Public Safety Act, 1949 –
Empowered the Provincial Government to impose pre-censorship on publications deemed prejudicial to public safety or public order.

H) JUDGEMENT

a. RATIO DECIDENDI

i) The majority held that freedom of speech and expression under Article 19(1)(a) included freedom of the press, and that pre-censorship amounted to a direct restriction on this freedom. The impugned Section 7(1)(c) was therefore unconstitutional.

The Court clarified that Article 19(2) at the time only allowed restrictions in the interests of security of the State, and not for public order or safety. Since the impugned provision sought to curb expression for the sake of public order, it was not protected under Article 19(2).

The Court reaffirmed its decision in Romesh Thappar v. State of Madras, 1950 SCR 594, observing that “public order” is not synonymous with “security of the State”, and hence laws based solely on maintaining public order cannot override fundamental rights unless they strictly fall within the language of Article 19(2).

The Court quoted Blackstone’s Commentaries, asserting that any previous restraint on publication (such as pre-censorship) is an affront to press freedom. The power to prosecute after publication was distinguished from the power to restrain before publication, with the latter deemed incompatible with constitutional liberty.

Thus, the impugned order and Section 7(1)(c) were struck down as unconstitutional.

b. OBITER DICTA (IF ANY)

i) The judges emphasized that while public safety is important, the Constitution’s textual guarantees must prevail over vague administrative fears. Concerns about potential misuse of the press cannot justify proactive censorship, especially in absence of any imminent threat to national security.

They remarked that the Court is not concerned with the wisdom or necessity of the law, only its constitutional validity. The fact that the law may serve a useful purpose does not validate it if it contravenes fundamental rights.

c. GUIDELINES (IF ANY – WRITE IN DETAIL AND IN POINTERS AS THE CASE MAY BE)

While no formal guidelines were issued, the ruling established foundational principles on press freedom:

• Freedom of press is an essential facet of Article 19(1)(a).

• Pre-censorship is presumptively unconstitutional unless explicitly justified under Article 19(2).

• The grounds mentioned in Article 19(2) must be strictly interpreted.

• Laws restricting speech must be narrowly tailored to serve a compelling constitutional interest.

• “Public order” and “public safety” do not automatically amount to “security of the State”.

• Misuse or abuse of press freedom is to be addressed post-publication, not pre-emptively.

I) CONCLUSION & COMMENTS

This case marked a crucial turning point in the evolution of civil liberties jurisprudence in India. The majority’s interpretation of Article 19(1)(a) reflected a liberty-first approach, prioritizing free expression over executive anxiety. In the fragile aftermath of Partition, the government sought to suppress certain kinds of speech. However, the Court underscored that even during politically volatile times, freedom of the press must be jealously protected.

The Court’s bold stance anticipated global free speech standards and aligned Indian constitutional law with liberal democratic traditions, akin to New York Times Co. v. United States, 403 U.S. 713 (1971) in the U.S., where prior restraint was also held invalid.

Importantly, this decision prompted the First Constitutional Amendment in 1951, which expanded Article 19(2) to include public order, friendly relations with foreign States, and incitement to an offence—thus responding directly to this judgment and Romesh Thappar’s.

Justice Fazl Ali’s dissent deserves recognition for its nuanced analysis. He provided a broader interpretation of “security of the State”, arguing that public safety and public order could fall within its ambit, reflecting a more realist approach to governance. However, the majority’s insistence on strict textual reading of constitutional guarantees won the day.

This case, together with Romesh Thappar, laid the constitutional bedrock for freedom of speech and the press in India. It continues to be cited widely in contemporary debates on media regulation, sedition laws, and the scope of Article 19(2). It also serves as a reminder of the fragility of liberty in the face of state power, and the Supreme Court’s role as guardian of fundamental rights.

J) REFERENCES

a. Important Cases Referred:

i) Romesh Thappar v. State of Madras, AIR 1950 SC 124; 1950 SCR 594
ii) Rex v. Governor of Wormwood Scrubbs Prison, [1918] 2 K.B. 305
iii) Niharendu Dutt Majumdar v. Emperor, [1942] F.C.R. 38
iv) King Emperor v. S. N. Bhalerao, 74 I.A. 89
v) R v. Sullivan, (1868) 11 Cox C.C. 44
vi) R v. Burns, (1886) 16 Cox C.C. 355
vii) Blackstone’s Commentaries, Vol. IV, pp. 151–152
viii) Stephen’s Digest of Criminal Law, Vol. II, pp. 242–243

b. Important Statutes Referred:

i) Constitution of India – Article 19(1)(a) and Article 19(2)
ii) Constitution of India – Article 32
iii) East Punjab Public Safety Act, 1949 – Section 7(1)(c)
iv) Government of India Act, 1935 – Entry 1 of List II, Seventh Schedule
v) Indian Penal Code – Section 124A (Sedition)