JUDGMENT
Harries, C.J.
1. This is a petition filed by one Benoy Kumar Chattopadhyaya praying that an order of Provincial Government No. 235 Pr. dated 24th March 1949, forfeiting a sum of Rs. 1000 deposited by the petitioner under the provisions of the Indian Press (Emergency Powers) Act, 1931, (Act XXIII [23] of 1931) be set aside.
2. The petitioner was the publisher and printer of a bi-weekly Bengali newspaper called the “Saptaha”. On 23rd December 1948, the petitioner deposited Rs. 1,000 as security as required by Section 3 of the Act. On 27th January 1949 the petitioner ceased to be the publisher and printer of the newspaper which apparently became defunct. He thereupon applied to the Presidency Magistrate for refund of the deposit which he had made. The Presidency Magistrate ordered an enquiry under Section 13 of the Act. On 24th March 1949, apparently before the result of the enquiry of the Presidency Magistrate had been communicated to the petitioner, the Provincial Government made an order under Section 8 forfeiting the security
and served it on the petitioner. The petitioner thereupon filed this petition praying that the sum so deposited should be refunded to him and in accordance with the provisions of the Press Act this petition has been heard by a Bench of three Judges.
3. In the order dated 24th March 1949 forfeiting this security the Provincial Government alleged that the petitioner bad in the issue of the paper dated 6th January 1949, published matter containing words which in the opinion of the Provincial Government were of the nature described in Section 4 (1) (d), Press Act, that is, words which tended to bring into haired and contempt the Government established by law in the different provinces of India and to excite disaffection towards the said Government.
4. In the notice is set out the matter said to be objectionable. It will be convenient at this stage to set out the portions of the publications to Which the Government took objection :
“It is reports that R. S. S. prisoners are treated as first class prisoners. While there is this indulgent treatment on the part of the Congress Government towards the R. S. S. workers there is well-planned and ruthless oppression perpetrated by the same Government on the political prisoners . . . Under the regime of the Congress Government as many as 11 political prisoners have died in the course of the last eight months in the jail in Madras, Bombay, the U. P. and Assam . . . Among these martyrs who have died as a result of the oppressions of the Congress Government the names of Bharadwaj, Kulakarni, Mayarath and Shankaran may be mentioned. It is reported that as a result of long detention in a solitary cell in the Haziribagh jail Jalo Chowdhury former President of the Bihar Provincial Trade Union Congress and Federation of the workers of the Giridi State Railway went off his head. The plan of oppressions committed on the political prisoners within the jail is almost the same in all the provinces. It is like this classification of political prisoners as Class 3 convicts, keeping them together with ordinary convicts, refusal to give them facilities of reading and writing, pushing prisoners who are ill towards death without treatment, making no arrangement for giving allowance to their families etc. Besides these, lathi charges were also made. The benign Government are careful to see that the wives and sons of the prisoners may not get any employment for earning their livelihood …. On 8th December a lathi charge was made on the political prisoners in Vizagapattam Jail. No arrangement was made for the medical treatment of the prisoners who were wounded. In this Jail 140 communist prisoners are detained in a place which can accommodate only 50 prisoners. One can therefore easily understand what the situation is there …. 400 political prisoners are suffering great hardships. They have not been given blankets in winter. They do not get articles which they are entitled to get under the Jail Code. If they want these articles, it is reported that they are threatened and even assaulted ….. It has been decided by the Congress Ministry in Madras that no arrangement for the treatment of men detained without trial would be made when they are ill except at their own expense.
From the time of the historic fast of Jatin Das in 1929 anti-imperialist agitation has demanded the abolition of classification of political prisoners. Now after capturing power the Congress Government are rejecting this demand …. strong protests are being made in the jails against these oppressions. In different jails political prisoners are on hunger-strike and are carrying on their resistance to the oppressions of the Government when Moni Mohan Burman, a tramway worker who was arrested at night on 23rd December informed the men at Tollygunge Thana that his wife was lying seriously ill in Calcutta Homeopathic Hospital. The thana officers rang up the hospital authorities and came to know that Moni Mohan’s wife had died. But they told Moni Mohan that his wife was slightly better. In Patna Jail Ramavatar Sastri and Jwala Prasad resorted to hunger strike as a protest against mismanagement and persecution. Both of them were suffering from tuberculosis from a long time. It is report than they were severely assaulted in their present state of health. This desperate attack has been made by the Government which is run in the interest of the bourgeoisie in the face of a crisis. As the crisis will thicken intensity of the attack will increase. It will not be wrong to think that this intense attack is only a manifestation of the increasing power of the masses against the bourgeoisie Government and against reactionary forces.”
5. It will be seen that in this article the writer criticises the Congress Government of the various Provinces in India for their treatment of political prisoners. The writer first points out that R. S. S. prisoners were being treated as first class prisoners and in an indulgent manner but what the writer describes as political prisoners were dealt with in a very different manner. It is then pointed out that in course of the last eight months 11 political prisoners had actually died in jails in Madras, Bombay, U. P. and Assam and four of these prisoners alleged to have died are mentioned by name. It is also pointed out that a prisoner in the Hazaribagh Jail was driven mad as a result of long detention in a solitary cell. The writer then states what ha describes as the plan of oppressions is the same in all the provinces. Political prisoners are treated as Class III convicts and are not separated from ordinary convicts. They are given no facilities for reading and writing. Prisoners who are ill are left without treatment and their deaths are thereby hastened. Complaint was made that no arrangements are made for giving allowances to the families of these political prisoners who are subjected to lathi charges. The writer then adds that the Government deliberately takes steps to make it impossible for the wives and sons of such prisoners to obtain employment and thus to maintain themselves.
6. It is said that on 8th December, a lathi charge was made on the prisoners in Vizagapattam Jail which resulted in a number being wounded. Nevertheless it is said that no arrangement whatsoever was made for the medical treatment of the prisoners so wounded. It is then complained that a large number of communist prisoners are herded together in accommodation fit for only a third of them and in the cold whether they ace given no blankets. If the prisoners complain it is said that they are threatened and even assaulted. It is the a alleged that the Congress Government in Madras had actually decided that medical treatment should not be given to political prisoners who were ill except at their own expense.
7. The writer then complains that from 1929 there had been an agitation for the abolition of the classification of political prisoners, bat now that the Congress Government were in power they had rejected this demand for differentiating between political and other prisoners. Examples are then given of what is alleged to be callous treatment of political prisoners, namely, the treatment of Moni Mohan Barman at the Tollygunge Thana, and the treatment of two political prisoners said to be suffering from tuberculosis at the Patna Jail.
8. The contention of the Provincial Government was that this article was objectionable as it tended directly or indirectly to bring into hatred or contempt the Government established by law in India or to excite disaffection towards the said Government.
9. Power is given by Section 4, Press Act, to declare a security forfeited in certain cases. That section in so far as it is material is in these terms:
“(1) Whenever it appears to the provincial Government that any printing press in respect of which any security has been ordered to be deposited under Section 3 is used for the purpose of printing or publishing any newspaper, book or other document containing any words, signs or visible representations which …. tend, directly or indirectly,. ….
(d) to bring into hatred or contempt His Majesty or the Government established by law in British India or the administration of justice in British India or any class or section of his Majesty’s subjects in British India or to excite disaffection towards His Majesty or the said Government. ….
the Provincial Government may, by notice in writing to the keeper of such printing press, stating or d ascribing the words, signs or visible representations which in its opinion are of the nature described above:
(i) where security has been deposited, declare such security or any portion thereof, to be forfeited to His Majesty …… and may also declare all copies of such
newspaper, book or other document wherever found in British India to be forfeited to His Majesty …..
Explanation 2.– Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection shall not be deemed to be of the nature described in Clause (d) of this sub-section. ….
(2) After the expiry of ten days from the date of the issue of a notice under Sub-section (1) declaring a security, or any portion thereof, to be forfeited, the declaration made in respect of such press under Section 4, Press and Registration of Books Act, 1867, shall be deemed to be annulled.”
10. On behalf of the petitioner it has been contended that there was nothing in the article complained of which tended directly or indirectly to bring into hatred or contempt the Government established by law in India or to excite disaffection towards such Government. Counsel on behalf of the petitioner urged that the article complained of was really a criticism of the Congress Party and not of the Government established by law in British India. Counsel contended that since India attained Independence the phrase “Government established by law in British India” was not appropriate to describe the Party Governments in power. He urged that criticism of a Party Government was nothing more than criticism of the Party namely, the Congress Party and we were asked to hold that the Government established by law in India was something different from the Congress Government now in power in the various provinces in India and in the Centre.
11. There can be no doubt that when the Press Act was passed in 1931, the Government established by law in British India was not a Party Government. The form of Government was bureaucratic and the executive were not in any manner responsible to the legislature. A proposal of Government could be defeated in the legislature never the less it could be enforced. An election which might result in the defeat of the party supporting Government in the Legislature had no real effect on the Government as the executive, as I have said, were not responsible to the Legislature.
12. Since Independence, conditions have changed and the form of the Government at the Centre and in all the provinces is now the democratic form of Government. The party commanding the majority in the Legislature is the party in power and forms the Ministry. A Government is a Government of the majority party, but that does not make it any the less a Government by law established in British India. Whilst that party maintains a majority it remains in power and whilst it is in power it is the lawful Government of the Centre on of the Provinces.
13. Though the Government is a Government by members of the majority party, the Government as such has its existence quite apart from the party. In my view a criticism of the Government in power in any province is a criticism of the Government by law established in that province, though incidentally it may be a criticism of the policy of the majority party, It appears to me that the fact that the form of Government at the Centre and in the provinces has changed does not make this statute inapplicable. That being so, there is in my view no force in the contention of the petitioner that Section 4, Press Act, can have no application to Government as constituted in the present day.
14. It was then contended that in considering whether the matter complained of offended
against Section 4, Press Act, the article should be considered as a whole and that it should not be held to offend against that section merely because a sentence or sentences taken by themselves might offend against the provisions of that section.
15. It appears to me that this contention is well-founded. A sentence taken out of its context might well be offensive, but when read in its context its meaning may be very different.
l6. This contention of the petitioner was considered by a Special Bench of the Lahore High Court in Harkishan Singh v. Emperor, A.I.R (33) 1946 Lah. 22 : (47 Cr. L. J. 345 S.B.). At Page 24 Mahajan J. dealing with this contention observed :
“In my view if the leaflet is considered as a whole, the effect of the language used in it does not tend, directly or indirectly, to excite disaffection towards the Government established by law in British India. It is a well-recognised principle that the Court should in every case consider the writing as a whole
and in a fair, free and liberal spirit, not dwelling too much upon isolated passages or upon a strong word here and there, which may be qualified by the context but endeavouring to gather the general effect which the whole composition would have on the minds of the public.”
17. With respect I entirely agree with that view and I shall examine the writing said to
offend against Section 4 of the Act in the light of those observations.
18. There can be no doubt that the writer of this article intended severely to criticise the
Congress Government in the various provinces
and the article does charge these Governments with callous and indeed inhuman conduct. To say of the Government that it deliberately by its acts hastened the death of prisoners by refusing to give them medical treatment when they were ill is charging the Government with conduct almost inhuman. Suggestions of this nature are made on a number of occasions in the article. It is said, for example, that no arrangements were made for the medical treatment of prisoners wounded as the result of a lathi charge in Vizagapatam Jail and further that it was the deliberate policy of the Congress Government in Madras that no arrangements were to be made for the treatment of political prisoners detained without trial who were ill, except at their own expense. These two allegations are made in addition to the general allegation made against all Congress Governments that political prisoners were herded with ordinary convicts and
refused all facilities for reading and writing and “pushed towards death” without treatment if they were ill.
19. It is also suggested in this article that the Provincial Governments are guilty of another form of most callous and inhuman conduct, namely, taking steps to see that the relatives of prisoners are not given employment and thus allowed to starve. It was suggested that in the original Bengali this sentence really meant that the Provincial Governments saw to it that the relatives of political prisoners could obtain no Government employment. But it is clear that the words in the original meant that the Government took steps to see that the relatives of political prisoners should not get employment anywhere. It is difficult to ascribe a more callous conduct on the part of any Government.
20. Mr. Sadhan Gupta on behalf of the petitioner however contended that if the article was taken as a whole it amounted to nothing more than a criticism of the policy of Government and that it did not tend directly or indirectly to bring into hatred and contempt Provincial Governments or to excite disaffection towards them. He urged that the case was governed by Expln. 2 to Section 4, Press Act. This article, he said, merely amounted to comment expressing disapprobation of the measures of Government with a view to obtain their alteration by lawful means. Such comments do not bring the matter within Clause (d) of Sub-section (1) of Section 4 provided that the comments do not excite or attempt to excite hatred, contempt or disaffection towards the Government. It is clear therefore that though the object of the critic may be merely to obtain the alteration of the measures criticised by lawful means, nevertheless the matter may come within the mischief of the section if the criticism excites or attempts to excite hatred, contempt or disaffection towards the Government.
21. It was a matter of considerable difficulty to apply this section to criticism of measures of Government before India obtained Independence. Bat it appears to me that since Independence and the adoption of a democratic form of Government it is practically impossible to place a construction on Section 4, Press Act, which will not stifle a good deal of legitimate criticism of Government. The right to criticise is inherent in a democracy. The opposition are entitled, and indeed it is their duty in proper cases, to expose the misdeeds or acts or omission of the Government in power and this they are entitled to do with a view to winning over the electorate so that the Government in power will be thrown out and the opposition placed in power after securing a majority in an election. However, if
she words in Section 4, Press Act, are strictly applied then newspapers supporting the opposition to the Government in power are muzzled and can indulge in nothing bat very mild criticism. Further, opposition newspapers might find it difficult to publish facts concerning the Government which were true because the publication of such facts might well tend to bring the Government into hatred or contempt or to excite disaffection against such Government.
22. In England the writing of defamatory words may amount to a criminal offence if the words written are not only defamatory but might lead to a breach of the peace. Of criminal libel it has been said that “the greater the truth the greater the libel” and there is much force in this old observation. Uttering the truth may very often tend to a breach of the peace. The truer a statement is the more likely it is to excite and annoy the persons affected by such statement. Hence the old phrase “the greater the truth the greater the libel.” Similarly the truer the criticism of the acts of Government, the greater is the likelihood frequently of exciting hatred and contempt of Government or disaffection towards such Government, Assume a Provincial Government is guilty of some bungling or some act showing gross inefficiency in administration. Inefficiency tends to excite the contempt of efficient citizens and a criticism published in an opposition newspaper of this inefficiency of Government might well tend to excite the contempt of a very large number of citizens of that province.
23. Assume a Provincial Government to be guilty of something worse than inefficiency, namely, nepotism or dishonesty or corruption. Such a Government would lay itself open to criticism and indeed very severe criticism would be justifiable. Nevertheless, such criticism might bring the writer within the mischief of Section 4, Press Act, because exposing Government and showing to his readers that the Government was guilty of a serious act of nepotism or an act amounting to corruption would inevitably excite the readers to hold the Government in contempt and would excite hatred and disaffection towards the Government. The truer the charge made against a Government the surer it would be to excite hatred and contempt and disaffection. If there was any doubt about the truth of a charge made against Government cautious readers might withhold their judgment, but if there was no dispute and no doubt as to the truth of the allegation made then it would inevitably excite hatred and contempt in the minds of all decent-minded and honest people.
24. That truth is wholly immaterial in considering what effect an article may have upon the minds of its readers was considered by a Special Bench of the Bombay High Court in the case of In re Pothan Joseph, 56 Bom. 472 : (A.I.R. (19) 1932 Bom. 468: 33 Cr.L.J. 749 (S.B.)). In that case the Bench had to consider not only Section 4, Press Act, but certain Ordinances. At p. 486 Beaumont C. J. who delivered the judgment of the Bench observed :
“The question which we have to ask ourselves is,
whether articles of that nature tend to bring Government into hatred and contempt. We have no evidence as to whether the facts asserted in the articles, on which
the charges, or some of the charges, are based, are
true or false, and the Advocate-General has argued the
case on the basis that truth is immaterial. We think in
that contention he is right. There is no exception in Section 4,
Press Act as amended by the Ordinance, making truth
and public good an answer to a charge under the section,
as in the case of exception (1) to Section 499, Penal Code,
dealing with defamation. This Court is not concerned
to consider the wisdom, or lack of wisdom, of a policy of
suppressing criticism upon unlawful or injudicious acts
of Government. We have merely to apply the law as we
find it. The effect of the Ordinance seems to us to bring
within Section 4, Press Act, every charge of misconduct
by Government, whether such charge is well-founded
or not.”
25. These observations it appears to me apply with equal force to Section 4, Press Act, and that being so, it appears to be quite immaterial whether what is stated in an article is true or not provided that the tendency of the article is to excite hatred and contempt of Government or disaffection towards Government.
26. Further, the purpose of writing the article is also immaterial. The article may have been written to expose an inefficient, dishonest or corrupt Government with a view to the electorate throwing out such Government at the next election. But Expl. 2 to Sub-section (1) of Section 4 of the Act makes it clear that such words may well be within the mischief of the Act, though written with a perfectly innocent and lawful intention, if they have the effect of exciting the readers to hate the Government or to hold it in contempt. That being so it is in my judgment very difficult to place any construction upon these words in Section 4, Press Act, which will permit the opposition party and the newspapers supporting the opposition party to function as they are expected to function in a democracy.
27. Attempts have been made in the past to place a construction upon these words contained in Section 4 (1) (d), Press Act. The matter was considered at length by a Special Bench of the Madras High Court in the case of Mrs. Annie Besant v. Emperor, 39 Mad. 1085; (A.I.R. (5) 1918 Mad. 1210:18 Cr. L. J. 157 S. B.), in which the Bench held that “hatred” and “contempt” towards “the Government” occurring in Section 4, Press Act, may be created by articles “imputing to the Government base, dishonourable, corrupt or malicious motives in the discharge of its duties,”
or by articles “unjustly accusing the Government of hostility or indifference to the welfare of the people.” The Bench however held that the operative or enacting portion of Section 4 (1) (d) did make the intention or motive of the writer of the articles complained of material in considering whether the words were not of the nature described in Section 4 (1). Explanation 2 thereto required that the writer must intend to excite hatred, contempt or disaffection if his writings are to be brought within Clause (d), the intention being deducible mainly from the words used.
28. Personally, I am doubtful that the necessity of an intention to excite hatred or contempt can be inferred from Expln. 2. It seems to me that Expln. 2 makes the object of the article immaterial if the article does tend to bring the Government into hatred, contempt or disaffection. Ayling J. in his judgment in the Madras case which I have mentioned accepted the view of Strachey J. in the case of Queen-Empress v. Bal Gangadhar Tilak, 22 Bom. 112 as to the meaning of the phrases “to bring into hatred or contempt” and “to excite disaffection.” In that case Strachey J. was considering Section 124A, Penal Code, which was susceptible of an interpretation much more favourable to an accused person than Expln. 2 to Section 4 (1), Press Act. Dealing with the matter Strachey J. observed:
“A man may criticise or comment upon any measure or act of the Government, whether legislative or executive, and freely express his opinion upon it. He may discuss the Income-tax Act, the Epidemic Diseases Act, or any military expedition, or the suppression of plague or famine, or the administration of justice. He may express the strongest condemnation of such measures, and he may do so severely, and even unreasonably, perversely and unfairly. So long as he confines himself to that, he will be protected by the explanation. But if he goes beyond that, and, whether in the course of comments upon measures or not, holds up the Government itself to the hatred or contempt of his readers, as for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people, then he is guilty under the section, and the explanation will not save him.”
29. From this observation it will appear that it was the view of Strachey J. that whilst the measures of Government may be severely criticised, nothing can be said which holds up the Government to hatred and contempt. However, in many cases, it is quite impossible to criticise the measures of Government without criticising the Government itself. As I have already stated, the Government may be guilty of acts of nepotism, dishonesty or corruption. How can such acts be criticised without criticising the Government itself and the inevitable result of the criticism would be to excite hatred or contempt towards the Government concerned.
30. The Federal Court in the case of Neharendu Dutt v. Emperor A. I. R. (29) 1942 F. C. 22 : (43 Cr. L. J. 504), considered Section 124A, Penal Code where words somewhat similar to Section 4 (1) (d), Press Act appear. Sir Maurice Gwyer in his judgment observed :
“Sedition is not made an offence in order to minister to the wounded vanity of Governments, but because where Government and the law ceased to be obeyed because no respect is felt any longer for them only anarchy can follow. Public disorder, or the reasonable anticipation, or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of trust either incite to disorder, or must be such as to satisfy reasonable men that that is their intention or tendency.”
31. In the case of Harkishan Singh v. Emperor, A. I. R. (33) 1946 Lah. 22 : (47 Cr. L. J. 345 S. B.), the Special Bench came to the conclusion that Section 4 (1) (d), Press (Emergency Powers) Act, was substantially in the same terms as Section 124A, Penal Code, and dealt with the offence of sedition as described in Section 124A, Penal Code. That being so, public disorder or the reasonable anticipation or likelihood of public disorder was the gist of the offence and the acts or words complained of, to come within Section 4 (1) (d), must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency. This would be a workable rule now that India 1s a democracy. Unfortunately, however, the view expressed by Sir Maurice Gwyer as to the meaning of “sedition” in the case of Niharendu Dutt v. Emperor, A. I. R. (29) 1942 F. C. 22 : (43 Cr. L. J. 504) has been expressly dissented from by their Lordships of the Privy Council in. Emperor v. Sadashiv Narayan, 49 Bom. L. R. 526 : 74 I. A. 89 : (A. I. R. (34) 1947 P. C. 82 : 48 Cr. L. J. 791). That being so, the case of Harkishan Singh v. Emperor: A. I. R. (33) 1946 Lah. 22 : (47 Cr. L. J. 345 S. B.) can no longer be regarded as good law and affords no workable rule of construing this section.
32. In the present case, however, I do not find any great difficulty in applying Section 4 (1) (d), Press Act. Though the article complained of was intended as a criticism of the Provincial Governments it does in my view exceed the bounds of fair and legitimate criticism and does tend to excite hatred and contempt and disaffection towards Government and I have little doubt that it was written with that intention. To say of a Provincial Government that it did not afford to detained political prisoners sufficient amenities would I think be quite legitimate criticism. But far more is alleged against the Governments of the Provinces in this article. As I have pointed out previously, the writer charges them with conduct which I can only describe as wicked, callous and inhuman.
According to the writer they deliberately allow detained political prisoners, who are ill, to remain without treatment and thus hasten their death and deliberately withhold medical treatment from such political prisoners if they are injured by any aggressive action on the part of the prison or police authorities. If these allegations are true, they would disclose a most scandalous state of affairs and if they are not true then they amount to a wicked and malicious libel on the Provincial Governments. As I have said previously, it matters not whether the allegations are true or not and it appears to me that, whether true or not, they do tend to excite hatred and contempt towards the lawfully established Governments in the provinces. What can a decent-minded honest citizen think of a Government that would mete out such treatment to prisoners of any kind and particularly to prisoners who have been detained without trial and without being found guilty of any criminal offence ? The effect of such an article would inevitably be contempt and hatred towards the Government.
33. The Provincial Governments are also charged with not only ill-treating and allowing political prisoners to die, but also with causing hardship and even starvation to the relatives of such prisoners. If this allegation is true then no article would be sufficiently strong to condemn the action of such a Government. But if the allegation is untrue then it is a wicked and damnable libel. Whether the allegation be true or false I cannot imagine that it can have any other effect than to excite in the minds of decent-minded citizens contempt and hatred for the Government concerned.
34. That being so I am of opinion that the words complained of do fall within the provisions of Section 4 (1) (d), Press Act and therefore the order forfeiting the deposit could rightly be made.
35. Mr. Gupta then argued that this article constituted an attack not on the Government as by law established in Bengal but upon other Provincial Governments in particular, Madras, Bihar. U. P., and Assam. He contended that the article should be considered in the light of the surrounding circumstances and that we should hold that in the particular circumstances the article was not likely to excite the Government of Bengal to the hatred and contempt of Bengalees. He relied on the case of S.N.S. Mudaliar v. Secy. of State, 10 Rang. 165: (A. I. R. (19) 1932 Rang. 69 S. B.). In that case a Tamil newspaper of small circulation contained an exhortation to its Tamil readers in Rangoon to free India from an alien Raj with
the “Sword of Ahimsa” and by a campaign of passive resistance. A special Bench held that in deciding whether the words complained of fall within Section 4 (1), Press (Emergency Powers) Act the Court must have regard to the surrounding circumstances: the context in which the words appear: the persons to whom the words were addressed: the political atmosphere in which the words were delivered: and the place where they were published. The Bench further held that in the circumstances obtaining in the case, although the words complained of were clearly seditious, they did not fall within Section 4 (1), Press Act. Page C. J. who delivered the leading judgment laid great stress on the fact that these words were contained in a Tamil newspaper with a very small circulation amongst Tamil readers in Rangoon. In his view the words, though seditious, were not likely in those circumstances to excite hatred and contempt towards the Government of India in the minds of the citizens of Rangoon and Burma.
36. In the present case, however, it is clear that the article applies not only to Provincial Governments of other provinces but to Provincial Governments generally and one example of callous treatment of a detained person is said to have taken place in the Tollygunge Thana, in Calcutta. It seems to me that this article was addressed to persons opposed not only to the Congress Government in Bengal but to Congress Governments generally, and the facts differ very materially from those in the Rangoon Case. This article would, to my mind, inevitably bring the Congress Governments generally into contempt in the minds of its Bengalee readers.
37. Mr. Gupta then argued that no forfeiture could be made in this case as there had been no forfeiture within three months of the date of the declaration mentioned in Sub-section (1) of Section 7 this being a declaration under Section 5, Press and Registration of Books Act, 1867. Mr. Gupta contended that the declaration was made on 23rd December 1948 and the order forfeiting deposit was not made until 24th March 1949, that is, one day beyond the three months. The original declaration was however produced before us which shows that this declaration was not made until 4th or 6th January 1949. It was actually signed on 4th January but the petitioner was not identified until 6th January and the declaration bears the signature of the Presidency Magistrate dated 6th January 1949. It is immaterial whether the declaration was made on 4th or 6th January because the order for forfeiture was made
within three months of that date and therefore the provisions of Section 7 Sub-section (2) of the Act do not apply and the publisher was not entitled to a
refund.
38. Lastly Mr. Gupta argued that no order for forfeiture could be made because at the time the order was actually made the petitioner had ceased to be the publisher and printer of the paper. He has relied upon the words of Section 8 (i) which gives the) Provincial Government power to declare a security forfeited. The Provincial Government must give notice in writing of such intention to forfeit to the publisher of the newspaper. Mr. Gupta’s argument was that at the date when the notice was served his client had ceased to be the publisher. In my view Section 8 (1) requires the Provincial Government to serve notice of that intention to forfeit the deposit not on the publisher of the paper at the time when the notice is served, but on the person who was the publisher at the time the offending article was written. If this were not so, it would be possible for a publisher to avoid forfeiture of a deposit by ceasing to publish immediately after writing a most scathing, unjust and seditious article. It seems to me that the publisher cannot avoid the forfeiture of his deposit by ceasing to publish after the offending article was written and before notice of the intention to forfeit the deposit was served on him. That being so, there is no force in Mr. Gupta’s last contention.
39. For these reasons I hold that the deposit in this case was rightly forfeited and the petition must therefore be dismissed. In the circumstances I would make no order as to costs.
40. Chatterjee J.–It is difficult to reconcile Section 4, Indian Press (Emergency Powers) Act, with the working of responsible Government in free and democratic India. That section authorises a Provincial Government to forfeit the security of a Press when “it appears to that Government that it is used for the purpose of printing or publishing any newspaper containing any words which tend to bring into hatred or contempt the Government established by law in India or to excite dissatisfaction towards the said Government.”
41. If we adopt the judgment of Strachey J. in Queen Empress v. Bal Gangadhar Tilak, 22 Bom. 112 at P. 135, as a guide on the interpretation of this Press Act, we have got to hold that any article or writing which excites or attempts to excite in others certain bad feelings towards the Government, comes within the mischief of the Press Act. The intention of the writer is immaterial, as also the truth of the allegations. Strachey J. said :
“The offence consists in exciting or attempting to excite in others certain bad feelings towards the
Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial. If the accused intended by the article to excite rebellion or disturbance, his act would doubtless fall within Section 124A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to mike him guilty under the section.”
42. The learned Judge was there dismissing the law of sedition as codified in Section 124A, Penal Code, which then stood as follows :
“Whoever by words either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites or attempts to excite feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.”
43. Therefore, the charge of Strachey J. was confined to disaffection under the old Section 124A..
44. In 1898 as the result of the great Tilak case the present Section 124A was substituted for the old section which was in the above terms. In the present section the words “hatred or contempt” were introduced, and the word “sedition” was inserted in the marginal note. In Niharendu Dutt Majumdar’s case, 1942 F.C.R. 38 : (A I.R. (29) 1912 F. C. 22 : 43 Cr. L. J. 504), the Federal Court held that the gist of the offence of sedition is the promotion of public disorder or the reasonable anticipation or likelihood that public disorder will be promoted. The acts or words complained of must either incite to disorder or must be such as to satisfy a reasonable man that that is their intention or tendency. But the Judicial Committee in King Emperor v. Sadashiv Narayan Bhalerao, 74 I. A. 89 : (A. I. R. (34) 194T P.C. 82 : 48 Cr. L. J. 791) held that the decision in Niharendu Dutt Majumdar’s case : (A. I. R. (29) 1942 F. C. 22 : 43 Cr. L. J. 504) by the Federal Court proceeded on a wrong construction of Section 124A, Penal Code, and of Rule 34 (6) (e), Defence of India Rules and was inconsistent with the ratio decidendi of the Tilak case, and pointed out that there was no material distinction between Rule 34 (6) (e), Defence of India Rules and Section 124A, Penal Code. The Judicial Committee has settled the law and it is not an essential ingredient of the offence that the words or acts complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their tendency or intention.
45. If we have to put the same interpretation on Section 4 (1) (d), Press Act, then the freedom of the Press in India will be gravely imperilled, if not rendered illusory. It is not very easy to draw the line between permissible criticism and publication which travels beyond the limits set by the law. The publication in any newspaper of any words which tend directly or indirectly to bring into hatred or contempt any of the Provincial or State Governments or to excite disaffection towards the said Government is punishable under that section.
46. It the words of the Press Act are to be taken literally, opposition newspapers would come within the mischief of that section almost every day. The attention of the Legislature should be drawn to the incompatibility of the Press Act with the present democratic constitution in India. The Press has the right to discuss any grievances and it is the right and duty of the Opposition Press to do its best to overthrow the party in power by all constitutional means. Commenting on the doctrine that it is a crime” if a publication be calculated to alienate the affections of the people by bringing the Government into disesteem”, Dr. Odgers said:
“If this is to be taken literally, all opposition newspapers commit such crime every day. Such a doctrine, if strictly enforced, would destroy all liberty of the press, and is moreover in conflict with more recent dicta : “The people have a right to discuss any grievance that they may have to complain of.” It is clearly legitimate and constitutional to endeavour, by means of arguments addressed to the people to replace one set of ministers by another. And the precise object of such arguments is to bring the ministers now in office into disesteem, and to alienate from them the affection of the people.” (“Libel and Slander”, 6th Edn. p. 420).
47. It is true that a particular political party commands the majority in every Legislature in the provinces as well as at the Centre and thus it formed the ministries functioning in the country. But another party may get into power and office in a particular province in the future. Supposing that Ministry formed by that party is extremely inefficient or connives at corruption, and the Press which reflects the opposition states that the Ministry is inefficient or abets corruption and wants its immediate removal, it would be publishing matters which would tend to bring into hatred or contempt the Government established by law and would excite disaffection towards that Government. To have an Act on the Statute book which penalises such publication would make the working of responsible Government or any democratic constitution in India fraught with the gravest peril. It is no use referring to Explan. 2 to Section 4, Press Act, which runs as follows:
“Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection shall not be deemed to be of the nature described in Clause (d) of this sub-section.”
48. That means the Press can criticise or comment but there must be no attempt to excite hatred or contempt or disaffection.
49. The Indian Press Act might be made compatible with a bureaucratic or alien Government which was in existence in the old regime when the Government was not removable and was not responsible to the Legislature. But when a democratic form of Government in introduced, “Government” cannot be rigid and immutable. Responsible Government means party Government and the Government by one party may be replaced by a Government manned by another party:
“Government by free political parties is merely another name for democratic Government. Nowhere has there ever been a free Government without political parties.” (“The Government of the United States,” by Munro, 5th Edn. p. 113).
It is not merely the right but the duty of the opposition party to try to dislodge the party in power or the party Government in office from the affection or esteem of the people. To authorise the forfeiture of the security of a Press because its writings would excite or tend to excite hatred or contempt or disaffection towards a particular party which happens to be the dominant party in the State for the time being may tend to paralyse the Press in a democratic country and may lead to the abolition of open and public dissent and the setting up of a totalitarian regime which is inconsistent with the firmly declared objectives of India’s Constitution-makers. In public opinion formed by the combined impact of universal suffrage and a free press, said Jeremy Bentham, lies the safety or representative democracy and there is good deal of practical wisdom in Bentham’s weighty utterance.
50. The liberty of the Press connotes in England complete freedom and right of publication without censorship or restriction, unless such writing or publication tends to impair or destroy the foundations of the society. Odgers in his treatise on Libel and Slander, Edition, 6 at pages 417-18, observes as follows:
“It is sedition to speak or publish words defamatory of the Government collectively, or of their general administration, with intent to subvert the law, to produce public disorder, or to foment or promote- rebellion.
“There is no sedition in censuring the servants of the Crown, or in just criticism on the administration of the law or in seeking redress of grievances, or in the fair discussion of all party questions” (per Fitz Gerald J. in R. v. Sullivan, (1868) 11 Cox C C at p. 50).
“Where corrupt or malignant motives are attributed to the Ministry as a whole, and no particular person is libelled, the jury must be satisfied that the author or publisher maliciously or designedly intended to subvert our laws and constitution, and to excite rebellion or disorder. There must be a criminal intent But such an intent will be presumed, if the natural and necessary consequence of the words employed be “to excite a contempt of her Majesty’s Government to bring the administration of its laws into disrepute, and thus impair their operation, to create disaffection or to disturb the public peace and tranquillity of the realm,” (R. v. Collins, (1839) 9 C. & P. 456; R. v. Lovett, (1839) 9 C. & P. 462)”.
51. In England freedom of the press has broadened down from precedent to precedent. “The liberty of the press” said Dicey, “is in England simply one result of the universal predominance of the law of the land” (“Law of the Constitution”, Edition. 7 p. 247). In the great case of Dean of St. Asaph, 21 St. Tr. 1043 Lord Mansfield observed that “the liberty of the press consists in printing without any previous license, subject to the consequences of the law.” “The law of England” said Lord Ellenborough, “is the law of liberty”. (R v. Cobbett, 29 St. Tr. 49).
52. It is for the Legislature or the Parliament to determine whether the law in democratic India should be brought into line with the law of seditious libel in England so as to mate punishable writings maliciously and designedly intended to subvert the constitution and to excite rebellion or disorder. No writing should be penalised or brought within the mischief of any Press Act, if it seeks to overthrow by constitutional means the party in power. But words similar to those in Section 4 have received judicial interpretation of the Privy Council and that interpretation is binding upon us. We cannot follow those cases which are really based upon the observations of Gwyer C. J. in Niharendu Dutt Majumdar’s case : (A. I. R.-(29) 1942 F. C. 22 : 43 Cr. L. J. 504), as that case has been expressly overruled by the Judicial Committee. So long as Section 4 is retained by the Legislature on the Statute book, it is impossible for the Courts to ignore it, although they attempt to whittle it down when a Government attempts to take action because its vanity is wounded or it becomes intolerant of strong or bitter criticism. In view of the statute as it stands, I am constrained to hold that the impugned article falls within the scope of Section 4, Press Act, It has criticised the policy of the Congress Governments in the different provinces and has attributed breaches of faith or solemn pledges given by the Congress party while out of office. It has gone further and has charged the Congress Governments with deliberately abusing or misusing their powers in order to maltreat the political prisoner and detenus. That may be true or untrue, we have nothing to do with the truth or falsity of the charges. In re Pothan Joseph, 56 Bom 472 : (A. I. R. (19) 1932 Bom. 468 : 33 Cr. L. J. 749 S. B.). In a sense the greater the truth, the
greater is the offence. If the charges are true, then the publication, although it excites hatred or contempt, may be the duty of the press. But that is again a question with which the Courts are not concerned. The only question is: Does the article in question tend to bring the Government established by law in India into hatred or contempt? It attributes calculated and deliberate ill-treatment of the political prisoners as well as the members of their families. The motive or intention of the writer is immaterial. Therefore, I have got to hold that inasmuch as we are not concerned with the truth of these charges or the justification for these serious accusations, the writing tends to excite hatred or contempt and to excite disaffection towards the Congress Governments, that is, the Governments established by law in the provinces in India and the Provincial Government of West Bengal was legally competent to take action under Section 4, Press Act, as it did.
53. Banerjee J.–This application must be dismissed. On behalf of the petitioner, Mr. Sadbau Gupta raised Several points. They are unsound.
54. His first point was that the article was a comment on the policy of the Congress organisation, and not of the Government. I cannot agree. There is no reference to the Congress organisation in the article. From first to last, the Government is the subject-matter of criticism.
55. His second point was that the petitioner was not the publisher on the date the security was declared to be forfeited; therefore, the forfeiture was invalid. This contention again is wrong. Section 8, Press Act, 1931, makes it abundantly clear that if the petitioner was the publisher, as undoubtedly he was on the date when the article in question was published, the security may be forfeited, if the article offends the Press Act.
56. His third point was baaed on Section 7, Sub-section (2) of the Act. He said that since three months had already elapsed from the date of the declaration mentioned in Sub-section (1), no order of forfeiture could be made. This argument was based an a misconception of facts. The declaration by the publisher was made or about 6th January 1949. Assuming for a moment that Sub-section (2) of Section 7 applies to this case, the security was declared to be forfeited on 24th March, that is to say, within three months.
57. He next referred to Section 49, Government of India Act, 1935, and said that the Government meant the Governor and his executive, and added that the article did not offend the Act as it did not criticise the policy of the Governor or his executive. This argument I was unable to follow. Section 49 only defines the executive authority of a Province and not the Government.
58. He next argued that this paper was in circulation only in Bengal and the article was not written against the Bengal Government and, therefore, it did not offend the Act. This contention again is fallacious. The article refers to the Congress Government as a whole. The Bengal Government is as much a part of that Government as the Government of any other Province.
59. His main contention was that this article was a comment expressing disapprobation of the jail administration of the Government or of its measures, with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection towards the Government.
60. It was further suggested that today there should be a strong opposition press. If articles in question are not permitted to be published, the Government which today is the Government of the people would be deprived of one of its essential and cherished rights–namely, the right to criticise. There is no doubt that this right to freedom of discussion and “liberty of the press” are fundamental doctrines of Democracy. It is only an aspect of what is known as the “Rule of
law.” Yet, I do not think this is a consideration which should weigh with the Court in construing the Act.
61. The Court is bound to give effect to the language of the Act so long as it is in existence, even though it thinks that the Act is capricious or unjust. The capriciousness or injustice of a particular result is a matter to which the Court can pay attention in deciding what is the true construction of the words used in the Act, but too much weight must not be given to those matters. It is the right of the Legislature, if it so wishes, to be capricious or unjust.
62. Again, an argument on the hypothesis that the Act is not in existence is an argument which the Court cannot entertain. The Act is there in the Statute Book. It is incumbent on the Court to give effect to it, regardless of the consequences.
63. But, in applying the Act, to any article appearing in a newspaper, the Court will take into consideration the public sentiment and the surrounding circumstances to find out whether the words used in the article tend, directly or indirectly, to bring into hatred or contempt the Government established by law in the land or to excite disaffection towards it.
64. It is beyond doubt that the Congress Government today is the Government established by the law in the Dominion of India. Our duty is to consider whether the article in question has
the tendency I have described above towards that Government. If it has, it is within the mischief of the Act. If it has not, the order of forfeiture must be set aside. We are not at all concerned with the truth or otherwise of the allegations in the article. We are not concerned with the purpose of writing the article. All that concerns us is to see whether the words used in the article tend to bring into hatred or contempt that Government or to excite disaffection towards it.
65. It must be noted, however, that there is great difference between 1931 and 1949. What can be said today with impunity could not be so said in 1931. What may be comments within the meaning of the explanations of Section 4 today might not have been such comments in 1931.
66. But, albeit, the principle of construction of the Act must be the same. Though every one has a right to publish fair and candid criticism of the policy of the Government, a critic must confine himself to criticism and not make it the veil for imputing to the Government base, corrupt or malicious motives in the discharge of its duties.
67. The Government today is a Government of the people, by the people and for the people. The Government, if it is really to be a Government of the people, must be carried on by the people according to the wishes of the people. If any particular policy or measure of the Government does not meet the approval or the wishes of the people, the Government must change the policy or the measures.
68. The Press today must enjoy greater liberty than it enjoyed in 1931. The liberty enjoyed by the Press differs at different times and seasons. It may vary from unrestricted license to very severe restraint, according to the condition of popular sentiment. (See Dicey, Law of the Constitution, Edn. 8, p. 242).
69. I can think of a Government which is so efficient and so popular so firmly fixed in the affection and confidence of the people that no amount of scurrilous literature can excite or tend to excite hatred or contempt towards it. Again, I can think of a Government equally efficient and equally good but functioning at a time when public sentiment is so high and so sensitive, that slightest provocation suffices to bring or tend to bring the Government into hatred or contempt.
70. Take a familiar illustration. An article which tends to bring into hatred or contempt any class or section of the subject of the Dominion of India falls, within the mischief of the Press Act. But, what can be said today without any offence to a particular community could not be said with the same result in 1946,
when the carnage in Calcutta was going on. It follows that the psychology for the time being of the people is the context in which comments which appear in the newspapers must be read.
71. If I am correct in saying what I have said, I can fit the 1931 Act into 1949 texture. It was not possible for the Legislature in 1931 to foresee the events of 1949. It is not within human powers to do so. Therefore, so long as the Act remains in force, it is the duty of the Judge to set to work on the constructive task of finding the effect of the article, and he must do so, not only from the language of the article but also from a consideration of the prevailing public sentiment, which is the context in which the article has to be read, and then he must supplement the written words of the Act so as to give “force and life” to the intention of the Legislature. That is the principle underlying the resolutions of the Judges and the other Barons of the Exchequer, in Heydon’s case, 3 Co. Rep. 76. This principle seems to be the safest guide today. Otherwise, there is bound to be a conflict between the words of the Act and the rights of the people.
72. There can be no difference in the principle of construction of the words of the Act, whether construed in 1931 or in 1949. The difference must be in the manner in which the Act is to be applied. The Act undoubtedly permits the publication of statements meant only to show that the Government has committed errors, or to point out defects in the Government or the constitution with a view to their legal remedy or with a view to recommend alterations in the policy or measures of the government by legal means. The Act sanctions criticism on public affairs which is bona fide intended to recommend the reform of existing institutions by legal methods. Criticism is allowed that far and no further.
73. It is impossible to lay down any hard and fast rule as to how an article should be read, but there is no doubt that it must be read by the Court carefully, liberally and not with a view to find fault with it. The Court must read the article as a whole, giving due weight to every part. The Court must make due allowance for all kinds of ornamental phrases or fine words or figure of speech which sometimes are permitted and which nobody seriously takes into consideration. And after making all due allowances, the Court must find out the true sense of the article. The first thing the Court has to do is not to take the words in vacuo, so to speak, and attribute to them what is called their natural or ordinary meaning. The method of construing the words is to read them as a whole and ask
oneself the question: “In this context, relating to this subject-matter, what is the true meaning of the words?” If reading the article in that way, the Court thinks that it was intended to be a criticism of the policy or the administration of the Government, with a view to obtain its change or reform the article is safe. But if, on the other hand, the Court comes to the conclusion that the article was really meant to be an attack on the Government beyond the permitted limits of criticism, the article comes within the mischief of the Act, and then no argument can be heard on the basis that the Act does not exist or what the Act should have been.
74. In the light of these principles, I have read the article. Reading the article as a whole, I ask myself the question, what is the true meaning of the article?
75. I have no doubt in my own mind that the article was never intended to obtain by lawful means any change in the policy or measure of the Government or its jail administration. In my view, the words used, have the tendency to impute base, corrupt and malicious motives to the Government in discharge of its duties.
76. We repeatedly asked Mr. Gupta to tell us how any or what reform was expected by the words, (Portion in Begali omitted). I have translated the words myself. The translation is as literal as I could make it, consistent with the spirit of the article:
“The pattern of oppression of the political prisoners within the jail is almost the same in all the provinces: that is that the political prisoners are regarded as Class III convicts, e.g., forcing them to live with ordinary convicts, refusing to give them any facility for reading, driving the ailing prisoners to death without treatment, making no arrangement for giving allowance to their wives, children and family; besides, there is of course the lathi charge etc. Added to this, the generous hearted Government has an eye in the direction (to see) that their wives and children etc., do not get any work or job in any way even to earn their daily bread.”
77. We asked Mr. Gupta to tell us what reform or change of policy or administration was intended by the words that the Government sees that the wives and children of the political prisoners do not get any opportunity to earn their livelihood. He was unable to give any answer. I have not been able to see by what manner or means it was possible to obtain any alteration of any measure or policy of the Government or its jail administration by these remarks.
78. The meaning of the words I have quoted above in their setting is clear. That the Government not only ill-treats the political prisoners lodged by them in jail, not only it does not provide for their treatment but it is so vindictive that it does its level best to see that the wives and children of the political prisoners
do not even get the chance of earning their livelihood. Nothing can be more inhuman, more corrupt and more malicious for a Government than to adopt a policy like this towards its political prisoners.
79. The charge is very serious against the present Government. Yet, no particulars have been given in the petition. There is not a shred of evidence to support the statement. Mr. Gupta, to our repeated questions, could not furnish any particulars. He said generally, that this statement in the newspaper had been made on information received from reliable sources. But he was unable to disclose what the reliable sources were. He further said that a newspaper is entitled to make such a statement on information. I decline to assent to such a proposition so broadly stated. Be it an individual or a corporation or a newspaper, whosoever publishes a malicious statement which is not true, does so at his risk, and must take the consequences.
80. On the law as it is today, I am bound to hold that this statement is not a comment expressing disapprobation of the measures or policy of jail administration of the Government with a view to obtain their alteration by lawful means, but it is an imputation which excites or tends to excite hatred or contempt towards the Government established by law in the dominion of India.
81. Then again, there is the last sentence of the article which, from its translation as given in the paper book is this:
“This desperate attack has been made by the Government which is run in the interest of the bourgeoisie in the face of a crisis. As the crisis will thicken, intensity of the attack will increase. It will not be wrong to think that this intense attack is only a manifestation of the increasing power of the masses against the bourgeoisie Government and against reactionary forces.”
These words seem to me to tend indirectly to excite disaffection towards the Government.
82. The word ‘disaffection’ has been construed in Queen-Empress v. Ramchandra Narayan, 22 Bom. 152 (F.B.). It signifies political alienation or discontent, that is to say, a feeling of disloyalty to the existing Government, which tends to a disposition not to obey, but to resist and subvert the Government. The words “as the crisis will thicken, intensity of the attack will increase” suggest, (1) that there is a crisis, (2) that it will thicken, and (3) therefore the attack on the Government will also increase.
83. Perhaps these words taken out of the article by themselves may not have that significance. But, the article has to be read as a whole as I have said before and reading in that way, I think the words have the meaning I have attributed to them.
84. For these reasons, I hold that the Government was right in declaring the security to be forfeited.