John Beaumont, Kt., C.J.
1. This is an application under Section 23 of the Indian Press Act, 1931, asking us to set aside two orders passed by the Government of Bombay on March 11, 1932, made under Section 3, Sub-section (3) and Section 7, Sub-section (3) of that Act. Under Section 3, Sub-section (3), whenever it appears to the Local Government that any printing press is used for printing or publishing any newspaper containing any words, signs or visible representations of the nature described in Section 4, Sub-section (1), the Local Government may, by notice in writing to the keeper of the press stating or describing such words, signs or visible representations, order the keeper to deposit with the Magistrate, within whose jurisdiction the press is situated, security to such an amount not exceeding three thousand rupees as the Local Government may think fit to require. Section 7, Sub-section (3), confers similar powers on Government in respect of a publisher of a newspaper. The present applicant is both the keeper of the printing press and the publisher of the Indian Daily Mail, and he has been served with two notices requiring him to make deposits, within a period which expires today, on account of two articles published in the Indian Daily Matt on February 26 and27, 1932.
2. Section 4 which defines the words in respect of which notices may be served provides as follows :-
(1) Whenever it appears to the Local 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...containing any words, signs or visible representation which
do the things described in Sub-clauses (a) and (b), such things being the encouragement of offences of murder or offence involving violence. The articles in question do not offend against these provisions, but under an Ordinance promulgated by the Government of India on January 4, 1932, under Section 72 of the Government of India Act, as amended by a later Ordinance published on February 6, 1932, a Sub-clause (d), which is material for the purposes of this case, has been added to Section 4 of the Indian Press Act containing these terms:-
or which tend directly or indirectly 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 to excite disaffection towards the Majesty or the said Government...
3. In considering the terms of the articles in the Indian Daily Mail which are complained of, it is necessary to notice what the position was under the Ordinances with which the articles deal. The principal Ordinance is that promulgated on January 4, 1932. Under that Ordinance by Section 4, the Local Government has power to give directions as to the conduct of any person suspected of acting in a manner prejudicial to the public safety or peace, Under Section 21 a person disobeying any order under Section 4 is punishable with imprisonment which may extend to two years, or fine, the amount of fine not being limited. Section 29 constitutes Special Courts for dealing with offences under the Ordinances. Section 32 lays down the procedure for those Courts and directs that they are to follow the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases by Magistrates. Section 34 provides that there may be an appeal in the case of any sentence passed by a Special Judge of death, or of transportation or imprisonment for two years or more. Section 51 provides that save as provided for in the Ordinance, no appeal lies from any order or sentence passed by a Court constituted under the Ordinance and no Court has power to revise any such order or sentence. Section59 protects from liability in any civil or criminal proceedings persona acting under the Ordinance. So that it really comes to this that there is no check upon the Government as to the persons they may regard as suspect ; that orders may be passed affecting drastically the conduct of such persons; that heavy punishments may be imposed for the breach of any such orders, and that the right of appeal or application in revision, which would normally be enjoyed by any such persona, is very greatly curtailed. In considering these articles we have to remember that this state of affairs is part of the Government established by law in British India for the time being,
4. I would come now to the articles complained of. We have heard the articles read and re-read by counsel on both sides, and we have considered the explanation put forward by the applicant of the various expressions in the articles, and the charges brought against the applicant by the Advocate General. The language of the articles is not in itself intemperate, and we think the effect of the first article may be summarised as follows:-That Government have said that the Ordinances would be administered reasonably ; that they are in fact being applied ruthlessly and with complete indifference to the security of law-abiding people; that excessive sentences are being passed, and the way in which particular individuals are picked out for punishment, and the unanimity of the Magistrates in inflicting heavy sentences, show that the Magistrates are working in consultation and in cooperation with the executive, and that the Magistrates have lost their power of considering each case judicially on its merits; that the feeling as to the way in which the Ordinances are being operated is common to the whole community; see the letter quoted from the Times of India from a European correspondent to this effect; that not only the underlings of Government but also the higher officers abuse their powers which indicates that there is a settled policy of vindictiveness inspired by some higher authority. Instances of alleged abuse of powers are then given, and the article finishes with an appeal to the Governor to put an end to the abuse of powers, and to give effect to the assurances which the Government have given that powers will not be abused. The second article is very much on the same lines, but is rather more directed to the alleged interference with the liberty of the press. We do not think it is necessary toanalyze that article in any detail. It is not so much open to attack as the first article.
5. Apart from particular phrases in the articles, to which no undue importance should be attached, the general tendency of the articles seems to us to be not to criticise the policy of the Government of India in promulgating the Ordinances, or the legitimate operation of the Ordinances by the Local Government, but to assert that the Local Government are deliberately abusing and misusing the powers conferred upon them by the Ordinances, and to appeal to them to cease from so doing. 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 a 4 of the Indian 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 of the Indian 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 of the Indian Press Act every charge of misconduct by Government, whether such charge is well-founded or not.
6. It has been argued in effect by Mr. Taleyarkhan that it is better that misconduct, if any such there be, on the part of Government should be publicly exposed, so that it may be remedied; that in the long run such exposure will tend to reduce feelings of hostility towards Government, which feelings ultimately rest on the misconduct, rather than on the exposure of it; and that it is in the public interest that Government should know the criticism directed against it. But in our view matters of that sort; are outside the scope of our inquiry, They are really questions of policy. No doubt the legislature had such considerations in mind when they framed the explanations to Section 124-A of the Indian Penal Code dealing with sedition. The words of the Indian Press Act go beyond Section 124A of the Indian Penal Code and cover the tendency of an article, and not merely the creation of hatred or contempt or an attempt to create such feelings with which the Code deals, It seems to us that the assertion in these articles that Government is deliberately abusing the powers vested in it must tend to cause hatred or contempt against Government in the minds of those who read the articles.
7. We have so far dealt with the question of causing hatred or contempt towards Government; but there is the further question whether the articles tend to bring into hatred or contempt the administration of justice. Under the Ordinance, in our opinion, the Special Courts are acting in a judicial capacity. It has been suggested in the course of argument that they may be regarded merely as servants of the executive, bound to carry out the orders of the executive. If they were acting in that capacity, then the article in question in charging them with action in cooperation with the executive would not be bringing a charge of misconduct against them. But in our opinion they are not acting under the Ordinance as servants of the executive. They are acting in a judicial capacity, and we think that it would be a gross dereliction of their duty if they accepted from the executive orders as to the way in which they were to deal with persons charged before them, and as to the sentences which they should pass. The first article, we think, plainly charges the Special Courts with conduct of that character. It says in the plainest terms that they are acting in co-operation with the executive. Judges and Magistrates are not in a position to defend themselves, and we think that a charge of that sort must tend to bring into contempt the administration of justice under the Ordinances.
8. It has been contended by Mr. Taleyarkhan that the actions under the Ordinances of the Special Courts cannot be regarded as administration of justice within the meaning of the amended Press Act, We think that the argument is unsound. The method of dealing with persons charged under the Ordinances is, we think, part of the administration of justice in force at the present time in British India,
9. For these reasons, therefore, we think that the application must be dismissed.
10. We make no order as to costs on either side.