Clear and Present Danger

A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive configuration. It was the judgment of Holmes J. in Schenck v. United States, 249 US 47 at 52 (1910) that gave rise to the test of “clear and present danger” for determining whether restrictions on liberty would be held constitutional. Some thirty years after Holmes delivered his judgment, Jackson J. observed that “all agree that it means something very important, but no two seem to agree on what it is.” In one case Holmes J. took the view that “Left Wing Manifesto” gave rise to no clear and present danger.

The argument that the test of determining criminality in advance is unreasonable, is apparently founded upon the doctrine adumbrated in Schneck that previous restraints on the exercise of fundamental rights are permissible only if there be a clear and present danger. It seems to us, however, that the American doctrine cannot be imported under our Constitution. The framework of our Constitution is different from that of the Constitution of the United States. The test laid down in Section 144 is not merely “likelihood” or “tendency”. The section says that the Magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.

Hon’ble Justice A.K. SikriMazdoor Kisan Shakti Sangathan v. Union of India, [Writ Petition (Civil) No. 1153 of 2017].

J