Report No. 43

2.3. Legislative competence.-

The second possible ground of objection is that some of the provisions relate to 'public order' which is exclusively in the State legislative field (Entry 1 of List 2) and consequently outside the legislative competence of Parliament.

The expression 'public order' mentioned in Entry 1 and List 2 and referred to in clauses (2), (3) and (4) of Article 19 is capable of a wide, or of a narrow, construction according to the context. If a wide construction is given, provisions dealing with the security of the state may be held to fall within 'public order'. But, as observed by the Supreme Court in Romesh Thapar1-

"The Constitution thus requires a line to be drawn in the field of public order or tranquility marking of, may be roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of state and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differences in kind."

These observations of Patanjali Sastri J. (as he then was) were cited with approval in Dr. Lohia's case2 in the following terms:

"'Public order' is synonymous with public safety and tranquility: it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war affecting the security of the State.

In a later case,4 Gajendragadkar J. (as he then was), observed: "So far as clause (2) [of Article 19] is concerned, security of the state having been expressly and specifically provided for, public order cannot "include the security of state, though in its widest sense it may be capable of including the said concept."

1. Romesh Thapar v. State of Madras, 1950 SCR 594: AIR 1950 SC 124 (128, 129).

2. O.K. Ghosh v. Ex. Joseph, 1963 Supp 1 SCR 789: AIR 1963 SC 812 (814).

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