Skip to content


Vishnu Gangadhar Ketkar Vs. Government of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Application No. 550 of 1943
Judge
Reported inAIR1945Bom207; (1945)47BOMLR57
AppellantVishnu Gangadhar Ketkar
RespondentGovernment of Bombay
DispositionAppeal allowed
Excerpt:
.....here or a strong word there. (1) to sub-section (1), the only question before us is whether the book has a tendency to incite to or encourage the commission of any offence involving murder or violence as stated in clause (a). 7. we have been taken by the learned counsel on both sides through the twenty-three objected passages as well as the other portions of the book which, according to the petitioner, are to be read in their context. 10. there is no doubt that in some of these passages the author has expressed his sym-pathy as well as admiration for the courage and calmness of persons like madanlal dhingra and kanhere who were convicted of murder. kelkar in a public meeting at poona condemned dhingra's act in the following words: it is well known that savarkar was released in 1925,..........as the 'book falls under expln. (1) to sub-section (1), the only question before us is whether the book has a tendency to incite to or encourage the commission of any offence involving murder or violence as stated in clause (a).7. we have been taken by the learned counsel on both sides through the twenty-three objected passages as well as the other portions of the book which, according to the petitioner, are to be read in their context. it must be stated at the outset that the purpose of the book is to give an exhaustive and faithful account of the various phases of savarkar's life from his earliest days to his release from the andamans in 1925. in his preface the author says that he is not a blind follower of savarkar and that he does not believe that everything that he did is worthy of.....
Judgment:

Divatia, J.

1. This is an application under Section 23(7) of the Indian Press (Emergency Powers) Act, 1931, by the keeper of the 'Lokasangraha Press' at Poona to set aside the order of the Provincial Government requiring the applicant to deposit Rs. 2,000 as security under Section 3(5) of the Act. The demand for security was made as it appeared to the Government that certain passages in a book written in Marathi language by Section L. Karandikar called 'Savarkar Charitra', i.e. the life of Mr. Savarkar, and printed in the petitioner's press fell under Clauses (a) and/or (b) of Section 4(1) of the Act, There are. in all twenty three such passages which are alleged to incite to or encourage or tend to incite to or encourage, the commission of any offence of murder or any cognizable offence involving violence under Clause (a) or directly or indirectly express approval or admiration of any such offence, or of any person, real or fictitious, who has committed or is alleged of represented to have committed any such offence under Clause (b). The petitioner, however, relies on expln. (1) to Section 4(1) which says that no expression of approval or admiration made in a historical or literary work shall be deemed to be of the nature described in that sub-section unless it has the tendency described in Clause (a). If the book falls under this Explanation, Clause (b) would not apply, and the only thing we have to see is whether it has the tendency described in Clause (a). It is, therefore, necessary to consider that question first. The book must be either historical or literary if it is to fall under the Explanation. Mr. Dharap for the petitioner has urged that it is both ; it is not merely a biography of Savarkar but it also purports to be a history of the revolutionary movement in which he took part from 1905 to 1909, and it is moreover a work of literary merit written in chaste language and attractive style. The author, Mr. Karandikar, is an M.A., LL.B., and a Member of the Bombay Legislative Assembly. The book is a bulky volume containing more than 600 pages and divided into sixteen chapters, with an introduction by Mr. N.C. Kelkar. It purports to be a narration of the life of Savarkar, and the author says in his preface that later on he will write about what he calls the exposition of his views.

2. The learned Advocate General has contended on the other hand that the book is not a historical work but the biography of a living person describing in detail several incidents of murder of Government officials which it was not necessary to do in a biographical work. He has further urged that as stated in the introduction of the book there was armed resistance to the Government going on at the time! when this book was published in May 1943 and that therefore it was a description of the initial stages of the same revolutionary movement against the Government which continues up to this day. We have got before us the original book and after going through its contents we have no doubt that it is a literary work containing a historical review of the revolutionary1 movement in which Savarkar took part when he was in England. It is true that the biography is of a living person, but it contains a narrative of the revolutionary movement in existence about thirty-five years ago which has now passed into history. Savarkar was no doubt a principal figure in that movement, but that particular movement has already ceased to exist as the persons who took part in it are either dead or have changed their revolutionary cult. We have no materials to hold that the alleged revolutionary movement of violence and sabotage in 1943 is such a continuation of the movement of 1905 to 1909 that the latter can be regarded as pertaining to current events and not to those of history. In our opinion, therefore, the book is a historical work and not merely a narrative of current events. While describing Savarkar's part in it the author has purported to give a historical description of the events mostly without expressing his own opinion on their merits. It does not appear to us to be a one-sided picture but the author has also narrated the opinions of some eminent persons living at that time who thought it to be a misguided and harmful movement. The book also seems to us to possess literary style and to be a contribution to Marathi literature. We are, therefore, of the opinion that it falls under expln. (1) to Section 4, Sub-section (1).

3. The Legislature has drawn a clear distinction between a historical or literary work on the one hand and writings such as newspaper articles, pamphlets and similar publications on the other hand. In the case of the latter, approval or admiration of an offence of murder or other violent crime is enough to attract the penal provisions of the Act, but in the case of the former, mere approval or admiration of such offence is not enough, but it must be shown that it has a tendency to encourage them at. the time when the work is published. And that distinction is, indeed,' necessary in the interests of the public. Otherwise no true and faithful history of a country can be written. The history of almost every country abounds in violent upheavals of wars and revolutions including deeds of bravery which are held up for the admiration of posterity. No such historical work can be regarded as objectionable unless it has the present tendency to incite people to do such violent acts as may be punishable under the law of the land. That is the test which we have to apply in determining the effect produced in the mind of an average reader after he reads the alleged objectionable passages in their proper context. The learned Advocate General has contended relying on Prithvi Dass Sharma v. The Crown I.L.R (1930) Lah. 345 that even a single sentence, if obnoxious to Section 4(2), entails forfeiture of the security. We are unable to follow that decision, as 'our High Court has recently laid down a different rule. In In re Shankar Ramchandra Date (1936) Criminal Revision Application No. 344 of 1936, under the Press (Emergency Powers) Act, Beaumont C.J., in delivering the judgment of the special bench, has observed:

It has been laid down many times that in considering whether a passage falls within any of the prohibitions contained in the Press Act we must not take it out of its context. Where, as here, we are dealing with a book, we must take the whole book into consideration including its purpose, and not attach too much importance to particular expressions even if they are of an unguarded, and indeed, objectionable character.... Upon the whole, I have come-to the conclusion that objectionable as that extract is, it is not enough to justify Government condemning the whole book and forfeiting the deposit.

4. The learned Advocate General has urged that even if the book falls under the Explanation, we have to see whether the expression of approval or admiration in the different passages of that work has the tendency described in Clause (a), and not whether the work as a whole has such tendency, because the word 'it' in the Explanation refers to 'expression' and not 'work.' But even if it is so, we have to take the alleged objectionable passages in their context at the various places in which they occur and see whether the passages in their setting in the book have the alleged tendency. In the words of Shah J. in Emperor v. Bal G. Tilak (1916) 19 Bom. L.R. 211, where he was dealing with the analogous case of a speech alleged to be seditious (p. 272):

the question...is one of determining the reasonable, natural and probable effect of the speeches taken as a whole on the minds of those to whom they were addressed.... The speeches must be read as a whole 'in a fair, free and liberal spirit.' In dealing; with them one 'should not pause upon an objectionable sentence here or a strong word there.' They should be dealt with 'in a spirit of freedom' and 'not viewed with an eye of narrow criticism'.

It must also be noted that:

the provisions of the Press Act are of a penal character and according to the ordinary canons of interpretation, they should be construed strictly and literally in such a manner as to protect the liberties of the subject.' Des Raj v. Emperor A.I.R [1934] Nag.148.

5. It is next contended by the learned Advocate General that if there is any expression of approval or admiration for an offence, such expression by itself must be taken to have the tendency to encourage murder and violent crimes. He relies upon a decision of the Nagpur High Court in Bapuji v. C.P. Local Government . It was held in that case that a particular poem reciting that a person sentenced to death was a hero and that the drum of his fame should reverberate in the whole universe would have the tendency to encourage the commission of violent offences. We doubt whether the learned Judgesintended to lay down a general proposition that in all cases of admiration or approval of an offence or offender, there must be a tendency to encourage violent offences. But if they do, we respectfully differ from them. Otherwise Expln. (1) which protects a historical or literary work would be rendered nugatory. We have to look to the circumstances in each case in judging such a tendency, viz. the purpose of the work, the time at which it was published, the class of people who would read it, the effect it would produce in their minds, the context in which the objected words appear, and the interval of time between the incidents narrated and the publication of the work.

6. Before going to the objected passages in the book, it is necessary to dispose of one general argument of the learned Advocate General. He says that we have to see whether the passages fall under any of the Clauses (a) to (i) of Sub-section (1) of Section 4, and not merely Clauses (a) and/or (b), because the body of the notice given to the petitioner mentions 'words of the nature described in Section 4, Sub-sectiom (1)' of the Act. He admits that in the statement of objected words attached to the notice, it is expressly mentioned that it is a statement of words falling under Clauses (a) and/or (b) of Section 4(1), but according to him the Government is not bound by that limitation as the notice itself is generally under the whole of Sub-section (1). We are unable to accept that contention. The statement is a part of the notice itself under Section 3(3) which requires a 'notice in writing to the keeper of the press stating or describing such words etc.' The statement is, therefore, a statutory provision and is in the nature of a charge which gives particulars about the specific clauses of the sub-section that are alleged to have been infringed. The petitioner has come to this Court to set aside an order which purports to be based on that charge. We do not think, therefore, that Government can now go behind or enlarge those particulars which are an integral part of the notice. The material clauses in the notice would be (a) and/or (b), but as the 'book falls under Expln. (1) to Sub-section (1), the only question before us is whether the book has a tendency to incite to or encourage the commission of any offence involving murder or violence as stated in Clause (a).

7. We have been taken by the learned Counsel on both sides through the twenty-three objected passages as well as the other portions of the book which, according to the petitioner, are to be read in their context. It must be stated at the outset that the purpose of the book is to give an exhaustive and faithful account of the various phases of Savarkar's life from his earliest days to his release from the Andamans in 1925. In his preface the author says that he is not a blind follower of Savarkar and that he does not believe that everything that he did is worthy of imitation or advocacy. As regards the activities of the revolutionaries before the last war he observes:

In 1919 A.D., the then Emperor in proclaiming the Royal amnesty declared that the introduction of the new reforms was the beginning of a new era. From the standpoint of the rulers, the individuals who did objectionable acts in the preceding period, were set free, and they were given the opportunity of reconciling themselves to the1 new order, and simultaneously with it, the old writings and the old views of those individuals came as a matter of fact, to be consigned to the pure field of 'History'. As it is not possible to avoid reference to those writings and those views while giving a historical exposition of the then views of such individuals, there would be no objection to make references to that extent (and) from that point of view ; and it is only with that consideration that I have made some references of that kind.

8. In the first of the objected passages also occurring in the preface the author advises his readers to be imbued with the attitude of forgetting past things and of considering new events from a new point of view. He says further: 'It is requested that readers should maintain this noble attitude of tomorrow when looking at past things which have been described in the biography as pure historical events.' We must observe here that the readers of this literary biography are expected to be men with some education and culture who can discriminate between historical and contemporaneous events, and the author was making his appeal to them.

9. Most of the objected passages occur in chapters 4 to 9 of the book where the author deals with Savarkar's activities in England and his incarceration there. He gives a history of the events in India and England which led to the revolutionary activities of Indian youths in England between 1905 and 1909, mainly dealing with the connection of Savarkar with Shyamji Krishnavarma, Madanlal Dhingra and Lala Hardayal. Passage (3) is a quotation of a passage from the Bengali paper 'Yugantar' in 1907 as it appeared in the Sedition Committee Report about the methods of Russian Revolution and Savarkar's suggestion to take proper advice from Russian events. Passage (4) is a reproduction without comment of a proscribed pamphlet 'Oh Martyrs' issued in 1908 by an unknown author in England on the 50th anniversary of the Indian Mutiny. Passages (5), (6), (9) and (12) are quotations from articles published in Shyamji Krishnavarma's proscribed paper ' Indian Sociologist' showing approval of the actions of terrorists. Passages (7), (8), (10), (11), (13), (14), (15) and (16) are connected with the murder of Curzon Wyllie by Madanlal Dhingra in 1909, his trial and execution. Passages (11) and (13) are his statements in Court. Passage (14) is the statement found on his person after his arrest and subsequently published in the 'Daily News' of England and some American papers. Passage (15) describes, the incident of Dhingra's execution in picturesque language. Passage (16) is a pamphlet issued by Dhingra's friends after his execution and quotations from Blunt's Diaries. Passage (17) is a proscribed pamphlet written by some Indian youths addressed to Indian Princes, subsequently quoted by Sir v. Chirol in 1916 in his book 'Indian Unrest.' Passages (16) and (19) relate to description of Jackson's murder by Kanhere in Nasik in 1909. Passage (20) is a comparison of Dhingra with an Egyptian political terrorist. Passages (2) and (21) are expositions of two of Savar-kar's poems, one written in 1899 and the other written while in England in praise of revolutionaries. Passage (22) is a conversation between Savarkar and a warder at Andamans about the bravery of a Hindu youth, Nani Gopal, in which a comparison is made between Hindus and Pathans. Passage (23) is not now relied on by the Advocate General as objectionable. Some of these passages are, it is true, reproduction of proscribed literature, but whatever other penalty there may be for doing so, the learned Advocate General has conceded that there is no penalty prescribed for it in the Press Act.

10. There is no doubt that in some of these passages the author has expressed his sym-pathy as well as admiration for the courage and calmness of persons like Madanlal Dhingra and Kanhere who were convicted of murder. They are passages (7), (8), (13), (15), (16), (18), (19), (20) and (21). Passage (10) expresses ridicule of one Palmer who boasted of having shed his blood in defending the Empire when he was attacked with a stick by some Indians at a political meeting. But to determine whether all these passages tend to incite to or encourage violent acts, we have got to consider the words in their context and in conjunction with the main theme of the book. While describing Savarkar's revolutionary activities, the author has also told the readers what leading Indian politicians thought about such activities. He has narrated how the Hon'ble Mr. Gokhale felt aggrieved at the propensities of young Indians in England, how Mahatma Gandhi tried to divert the minds of Indians who were falling under the spell of the views of the revolutionaries, how Sir Surendranath Bannerji expressed his disapproval of Dhingra's action in a public meeting in London, how Bipin Chandra Pal said that he did not agree with those young men who were interpreting the mutiny of 1857 as a war for national independence, and finally how Mr. N.C. Kelkar in a public meeting at Poona condemned Dhingra's act in the following words:

Madanlal Dhingra is, I am sorry to slay, an Indian; and we, Indians, are, therefore, bound to express, in the strongest manner, our sense of detestation of his crimes.... The doctrine of violence, if at all it exists as a doctrine, is confined to stray individuals. But, gentlemen, we roust unite and uproot it, though its dimensions may be howsoever meagre. It is a poison tree which must not be allowed' to grow, even in neglected corners.

The same Mr. Kelkar writes in his introduction to this book:

To-day Savarkar does not form secret associations, does not get weapons and arms-pistols-imported into India from Europe, does not try to justify assassination of any individual, and does not incite the army into disloyalty or mutiny against the British Government. On the contrary, although the British rule is still there, he accepts it for the time being and advises Indian youth to join the army which is under the British High Command, in order to fight Germany and Japan, the enemies of the British.

11. The author of the book has also in his later chapters narrated how Savarkar changed his views and realised the futility of armed revolution. He has quoted in extenso from the memorial which Savarkar sent to the Government from the Andamans in September, 1914, soon after the last war began. He says:

Even if in the hurry of the war nothing else can be done, should colonial self-government be granted to India and a clear majority of Indians be established in the Central Legislature, we and revolutionaries holding our views will halt and turn from our old path of armed resistance and give loyal and hearty support to England's case in the war. We promise that, should we be released now, we should not hesitate in joining the army with a view to defend our motherland.

12. The learned Advocate General has urged that it was a conditional promise and that there is nothing to show that Savarkar has finally abandoned his faith in violent methods. It is well known that Savarkar was released in 1925, the restrictions against his movements were removed in 1937 and to-day his loyal support to recruitment is recognised and even valued by the Government. We need not speculate as to what he may do in future because we are concerned only with what his views were in 1943 when this book was published. As to that, there can be no doubt about the change in Savarkar's methods of political agitation and the author has also fully described this change not only in the mind of Savarkar but also of another revolutionary Lala Har Dayal who 'has set it down as his opinion that war and revolution are in the nature of a gamble and at least the weak subjects of countries like India, Egypt and so on should not go in for this gamble.' In fact, the author has shown himself not merely an admirer of Savarkar during his revolutionary days but he is also an admirer of his present political attitude towards the Government. We think that after laying down the book, the reader of the class which is expected to read it will see the futility of armed revolutionary activities notwithstanding the author's admiration of the so-called deeds of the terrorists in some passages in the book. The Indian political movement has so rapidly passed through a number of ideological phases since 1909 that events of the preceding period appear to be much removed from modern times, and have ceased to be a source of inspiration to political propagandists of the present generation,

13. On the whole, after giving our careful consideration to the arguments on both sides, we are of the opinion that, although some of the passages fall under Clause (b) of Sub-section (1), they are protected by Expln. (1), and none of the passages read in their context and the book as a whole can be regarded as having a tendency to incite to or encourage any offence of murder or any cognizable offence involving violence.

14. Accordingly, we make the rule absolute, allow the application and set aside the order of security. The amount of security, if deposited, should be returned. The application is allowed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //