John Beaumont, Kt., C.J.
1. This is an appeal by the accused against her conviction by the Chief Presidency Magistrate under Sections 124A. and 153A of the Indian Penal Code. The charge against the accused is that she made two speeches at a labour meeting on ' May day ' which constituted offences under those two sections. The accused in the written statement she put in before the learned Magistrate says that she is a social worker and has studied social science in England and elsewhere. I am bound to say that; the speeches with which we have to deal do not suggest that she has studied more than one side of the subject, but perhaps it would be unreasonable to expect a labour leader on May day to deliver anything in the nature of an impartial address.
2. The first speech which she delivered the learned Magistrate held was unobjectionable, and as that finding has not been challenged in this Court, I need not refer to that speech. The second speech is the one which the learned Magistrate holds to come within the two sections I have mentioned. In determining the question, we have to look at the speech as a whole, and! not pay undue regard to any particular sentence or phrase. And looking at the speech as a whole we have to gather from the language used what the intention of the speaker was. It is obviously not open to a speaker to say that he did not intend his language to bear the meaning which it naturally does bear. The speech in question was not very long, and in order to determine what its real effect was, I would shortly summarise it. The speaker starts by moving a resolution which in substance expresses the solidarity of the working class, and its determination to fight and destroy the capitalist system. Then it refers to a resolve of the workers to fight the offensive of retrenchment and wage-cut launched by the capitalists by organising mass resistance in the form of general strike. In support of that resolution the speaker says that labourers must unite to fight the two enemies of Government and capitalists, A general strike, so she says, can only be declared when all labourers unite. Then she eulogises in a somewhat partial spirit the effects of a general strike. Then she says Government and capitalists have weapons, workmen have no weapons, but they have their labour which is stronger than weapons.Labourers she says, do all the work, and are starving: is this justice The rule of labour should be established by all labourers combining. Police and soldiers will join because they are reallylabourers. Everything is in the hands of labour, who want to break the powers of capitalists and imperialists, Then she says this can be done not by the methods of the terriorists of Bengal, or by the methods of Congress, but by the way of M. N. Roy, Then she says that Government are getting afraid of labour, and that labour leaders are sent to jail for long terms of imprisonment and that Congress leaders get much shorter terms, and then she ends by exhorting all labour to unite to destroy the capitalist system. So that the speech taken as a whole seems to be an exhortation to labour to unite with the object of being in a position to declare a general strike though there is no suggestion that a general strike should be declared at the present time, and the ultimate object seems to be to establish labour raj by the methods of M. N. Roy. The question is whether that speech is an offence under either of the sections, and I will deal with Section 153A first.
3. The offence under that section is constituted by promoting or attempting to promote feelings of enmity or hatred between different classes of His Majesty's subjects. The first point taken by Mr. Talyarkhan on behalf of the accused is that capitalists are not a class of His Majesty's subjects. He says that Section 153A was designed to prevent people from promoting feelings of hatred between classes of the community divided either by race or religion. He says that we should construe the section as not extending beyond that. I agree with the learned Chief Presidency Magistrate that it is not possible to limit the section in that way, I think that any definite and ascertainable class of His Majesty's subjects will come within the section, although the classes may not be divided on racial or religious grounds. But I differ from the learned Chief Presidency Magistrate when he says that capitalists are a sufficiently defined class.'Capitalist' in the literal sense of the word is, I suppose, any one who possesses any accumulated wealth, and practically every one possesses some accumulated wealth, though some people do not possess very much. On that definition practically everybody will be within the capitalist class. No doubt in the region of economic discussion capitalists are referred to in a more limited sense, In reference to divisions between capital and labour, the capitalist generally means a parson with a considerable amount of property invested in industry. Butif you take any definition of that sort, it is impossible to say what amount of capital would bring a man within the class. He might be within the class one day, and without it the next. He may be a capitalist in one country and not in another. It seems to me that 'capitalist' is altogether too vague a phrase to denote a definite and ascertainable class so as to come within Section 153A, I may say that even if I were wrong on that construction of the Act, I should say that this speech was not sufficiently strong to promote or attempt to promote feelings of enmity or hatred against the capitalists. The capita-lists are referred to in the speech as 'blood-suckers ', but that after all is a figure of speech. The only real charge against them is that they are exploiting labour, taking advantage of the labourer's work and paying inadequate wages. But the speaker, and I think her audience, must have appreciated that the wages of labour depend on the ordinary laws of demand and supply. People, whether they are capitalists or not, usually pay for labour the price at which they can obtain it and not more, and I do not think it can be said to be exciting feelings of enmity or hatred to suggest that capitalists are paying too little. It is quite open for a labour leader to say that out of the proceeds of industry capital is getting too big a share, just as it is open for the capitalists to say that labour is getting too big a share end that until wages come down there will be no improvement in industry. These are points of view which are perfectly legitimate, and charging your opponent with getting too big a share of the proceeds of industry is not, I think, calculated to inspire feelings of hatred or enmity towards him. I think, therefore, the charge under Section 153A fails.
4. The case under Section 124A is different. The offence there is bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards Government. Now there was, as far as I can see, no occasion for the speaker here to refer to Government at all. The resolution which she was proposing was anti-capitalist and not anti-Government, and Mr. Talyarkhan has invited us to treat her reference to Government as being a chance reference which did not affect the general tenour of the speech. But having read the speech very carefully, it seems to me impossible to adopt that view. I think the real gravamen of the charge which the speaker brings against Government is that Government is siding with the capitalists. She refers to Government and the capitalists as the two enemies, she couples them as the enemies of labour, not once but many times, and she says that Government are getting frightened, and imposing long sentences on labour leaders. I think the whole effect of the speech, so far as Government is concerned, is to suggest to the persons to whom it was addressed that Government is taking sides against them, and is taking the part of their opponents. To make a charge of gross partiality of that sort against Government is calculated, in my view, to inspire feelings of enmity and disaffection towards Government. The learned Advocate General says that the speech goes much further than that, and that the speaker proposes to establish labour raj or labour rule, and thereby to displace the existing Government. But the difficulty the prosecution is in there is that the only concrete suggestion which the speaker makes is that labour raj would be established by the methods ofM. N. Roy, and there is no evidence as to what the methods of M. N. Roy are. It is true that the evidence shows that M. N. Roy is a communist, and that he has been recently sentenced to a long term of imprisonment for waging war against the King Emperor, but we cannot assume from that, as against an accused person, that his methods of establishing labour raj in India are necessarily illegal, If the methods were legal, then the maker of this speech has only advocated the establishment of labour raj by legal means. The Court cannot in a criminal case draw inferences unfairly against the accused. It is for the prosecution to prove their case, and as they have omitted to prove what the methods of M. N. Roy are, we cannot hold that the speech advocated the establishment of labour raj by illegal means. I think, however, that there is an offence under Section 124A; but I am willing to accept the view which Mr. Talyarkhan puts forward that the speaker was somewhat overcome by the exuberance of her own oratory, and that she did not really intend to make an attack upon Government. She has, moreover, through Mr. Talyarkhan expressed regret for any phrases in her speech which went beyond her real intention, which was to exhort labour to unite and join their Unions, and she says that she does not intend to make objectionable speeches in the future. That being so, I think we may take a more lenient view of the matter than the learned Magistrate felt himself justified in taking. We propose to set aside the conviction under Section 153A. Under Section 124A the conviction will stand, but the sentence of imprisonment will be set aside, though the One of Rs. 300 will stand. The fine paid in respect of the conviction under a 153A will be returned.
5. I agree entirely as to Section 153A, I do not think that the speech which we have read more than once in the last two days was such as was calculated to excite feelings of hatred or enmity against the capitalists towards whom it was directed, It certainly criticised them and it alleged that they appropriated to themselves an undue share and left too little to labourers. But that is merely legitimate controversy, and it is not possible to hold that putting forward or advocating a view of that character could amount to spreading feelings of enmity or hatred. Then again it is difficult to hold that capitalists or imperialists are a definite class for the purposes of Section 153A. I cannot go quite so far as the learned Counsel for the appellant wished us to go. I do not think that the term ' classes' in that section must be restricted to racial or religious classes. But, as was pointed out by the learned Chief Justice of Lahore in Raj Pal v. The Crown (1931) 34 Bom. L.R. 275 a class or section as contemplated by this particular section of the Indian Penal Code connotes a well defined group of His Majesty's subjects, and the question is whether the term 'capitalists' or 'imperialists' connotes a sufficiently well defined group. In these days of joint stock enterprise, capital is often divided into very small shares, and technically any one holding even a single share would be one of the proprietors of a very big concern. It is not likely that the term 'capitalist' in the speech of the accused was meant to include poor people holding a very small amount of capital. Yet an attempt to restrict the term in some way presents very great difficulties. The learned Advocate General tried to read it as synonymous with employers. But that term is as indefinite as ' capitalist '. In the case of a manufacturing company like a spinning and weaving mill, you have the large body ofshareholders who are the proprietors of the concern; then you have the board ofdirectors and then you have the firm of managing agents, who actually carry on the day to day administration and engage or dismiss employees; and, lastly, there is the manager who acts under the orders of the managing agents. Which of these various groups are we to include within the term ' employers' Take the case of the dock labourers. You have the statutory body known as the Port Trust, which might be directly employing some of the dock labourers for all I know, Then there are firms of stevedores who undertake the business of loading and unloading ships. There are shipping companies who employ these stevedores to do their work for them, and there are shippers of freight who may also employ them. It would be very difficult to say which of these various bodies are to be regarded as the employers of dock labourers. Or take again the case of railway employees. The railway system is owned either by the State, or by a body of shareholders. Then there is the Agent, who has the general superintendence of the railway system. Then there is the body of higher officers who actually engage and dismiss railway employees, And one might even go further and say that the travelling public and the mercantile public who pay the revenue of a railway company are the ultimate employers of the railway staff. So that when we get down to an analysis of the idea sought to be conveyed by the terms which we are considering, it is extremely difficult to know who is included and who is to be excluded.
6. It may be said perhaps that the speaker meant to attack only very wealthy persons who employed their wealth in industrial undertakings and paid meagre wages to their workmen. But riches and poverty are relative terms whose limits would be fixed very differently by different persons, Also no employer of labour would admit that he pays inadequate wages. These are matters on which opinions differ widely and there is not likely to be any practical unanimity as to whom the cap fits. And the law could not have meant to penalise references to groups so vaguelyindicated. The object of the section is to prevent breaches of the public tranquillity which might result from exciting feelings of enmity between different classes of His Majesty's subjects; but when the persons included in any group are not readilyascertainable, it is difficult to see how any criticism of such an ill-defined group can lead to a tumult or breach of tranquillity.
8. It can hardly be said that His Majesty's subjects belong to as many different classes for the purposes of the criminal law as the resources of language can provide terms for indicating them. Thus in political controversy you may have shifting and ill-defined groups of people holding different opinions, and they may be referred to either with approbation or opprobrium. You may refer to people as diehards, or extremists, or nationalists; as free traders or fair-traders; as rationalists orcommunalists; as militarists or pacifists; as imperialists or Little Englanders; and it would be difficult to regard the people designated or meant to be designated by these and like expressions as forming classes sufficiently precise for the purposes of the criminal law. What is a well-defined class will of course depend on circumstances. There may arise circumstances in which people designated by any of the expressions I have mentioned may be so well-defined that it might be possible to say that they form a class against whom hatred or enmity could be excited. But the Courts would have to be very careful in ascertaining who were the persons attacked before holding that an attempt had been made to excite enimity against a class of people within the terms of Section 153A of the Indian Penal Code.
9. As far as I can see, the first and most important ingredient in the connotation of the term is that the words used must point to a well-defined and readily ascertainable group of His Majesty's subjects. This point I have already discussed. In the second place some element of permanence or stability in the group would have to be present before you can have an attempt to excite enmity against that group. You cannot say that people who are sitting in this room and people who are standing in this room are sufficiently well-defined classes for the purpose. A man who is standing this minute may be sitting down the next, and a man who is sitting down may stand up; so that the groups alter their composition before there is time for any feelings to be aroused on either side. Thirdly, there is the question of numbers. The group indicated must, I think, be sufficiently numerous and widespread to be designated 'a class'. You cannot say, for example, that 'the three tailors of Tooley Street' form a class for the present purpose. The reason for this requirement, is that unless a group is numerous and widespread theexcitement of feelings against it is not likely to be of consequence from the point of view of the public tranquillity. Now,i.e. the speaker meant to indicate by the word ' capitalists ' the ' idle rich', it may be doubted if persona who answer to the description in Bombay, or even in India are sufficiently numerous to form a class of the kind contemplated in the section For all these reasons it seems to me that, as used by the accused in the present speech, the terms ' capitalist' and 'imperialist' were not sufficiently precise and did not connote any well-defined class, and, as I have already said, the speech itself was not of the nature calculated to bring it within the mischief of the section.
10. Coming to Section 124A, I find that the learned Magistrate has relied on four or five passages in the speech which he considers as sufficient to bring it within that section, The first passage which he refers to is in these terms : ' This Government and the capitalists are sucking the blood of the labourers. We should fight with these people. What is needed is that we should unite in order to fight against the two enemies', The learned Advocate General greatly stressed the word 'fight' and the word 'enemies'. But it seems to me that too much ought not to be made of metaphorical expressions which are not to be taken literally, Is not the learned Advocate General himself fighting every day for his clients in Court We hear of doctors and nurses fighting for the lives of their patients, and we also hear of legislators fighting on the floor of Parliament or of Legislative Councils against Bills clause by clause. In none of these cases does any one understand by the word 'fight' a physical conflict. The word 'fight' in common parlance often means only opposition and contention, and the case of the word 'enemies' is very similar. People who are competitors in trade speak of one another as enemies People whose interests in certain matters are adverse may also do so. We are not, therefore, to take it, because the word 'enemy' has been used, that the speaker necessarily intended to inculcate feelings of enmity. The next passage which the learned Magistrate relies on is one in which the speaker contemplates the union of labourers for the purpose of striking work, and she says 'then alone a tremendous movement will be created in India '. I do not think that it is fair to read this last phrase as meaning revolution against the Government. We have been told that the word used by the speaker was andolan, which certainly does not mean revolution. It is a Sanskrit word meaning 'swinging, trembling, oscillation(Menier Williams' Dictionary), and as commonly used in Hindi means agitation. She does not say in that passage that this strike is meant to paralyse Government. The meaning attempted to be conveyed seems to be that such a strike would demonstrate the power of labour, and would lead to their getting what they want.
11. The third passage which the learned Magistrate has referred to is this: 'However powerful and rich Government and the capitalists may be, they possess weapons while the labourers do not. They (the labourers) do not possess fire-arms for shooting purposes. They have no police and no military. Even then their strength is greater than that of the capitalists and Government'. To say that this contains a suggestion that Government use fire-arms for shooting labourers and the military and the police to crush them, is not, in my opinion, a fair reading of this passage. What the speaker is trying to show is that in spite of the weapons and the power of the capitalists and Government,labourers if only they unite with each other, have greater power because of their overwhelming numbers. And to point out that fact as an incentive to unity is not, I think, to create either disaffection or hatred or enmity. In the next passage that the learned Magistrate refers to, the speaker says: ' You people should not think that the strength of the labourers is little; there is strength in the hands of the labourers; everything is in the hands of the labourers; for this reason (if) the labourers want to break the power of the capitalists and the imperialists, the labourers can break it in four days' time'. This is merely an amplification of the idea running through the passage which I have just commented on. The last passage which the learned Magistrate emphasises is the suggestion made by the speaker that labour leaders are sent to long terms of imprisonment while Congress people get only short terms of imprisonment. The learned Magistrate considered that this statement was bound to excite feelings of hatred and enmity towards Government, because he considered that Courts of law are an important branch of administration of Government. Now Government contemplated under Section 124A has been held to be 'the executive Government which under the Government of India Act is constituted to carry on the executive Government of India and of the various provinces,' It is not correct to say that Government is concerned as such with the administration of justice by the Courts or the length of sentences awarded by them. In fact it is one of its most important claims to the loyalty and affection of the people that the administration of justice is independent of the executive Government anduntrammeled by extra-judicial considerations. It is, therefore, hardly right for the learned Chief Presidency Magistrate to read a criticism on the sentences passed by the Courts as an attack on the executive Government. The aspersion made by the speaker in the passage under consideration might be an aspersion against the Courts which award heavy sentences to labour leaders or it might mean an aspersion against the legislature which passes laws, or against the Government for not taking steps to alter the state of the law which makes it possible for heavy sentences to be passed against people who lead labour. The suggestion is, to my mind, somewhat vague and does not carry any direct or pointed aspersion against the executive Government established by law in British India.
12. As regards the advocacy to follow the path of M, N. Roy, I do not think it can be said that because M N. Roy was convicted in respect of his political activities of the offence of waging war it follows that any one who is asked to follow his way in improving the conditions of labour must also wage war against the Government. As far as one can gather from the speech itself, all that has gone before is directed towards exhorting labourers to combine in organised unions, so that labourers may be in a more favourable position for making their demands and obtaining redress. All that follows the suggestion to follow the way of Roy is also concerned with exhorting the hearers in favour of sangathan which means union or organisation. There is no reference to any other method so that the only inference must be that that is what the speaker intended when she referred to the way of Roy, If any other method was meant she would have at least described it somewhere in her speech. On the contrary she has definitely rejected the method of the Bengal terrorists and so there is material in the speech itself to show that she did not mean the method of waging war against the Government when she referred to the way of Roy.
13. It appears therefore, that the passages relied upon by the learned Magistrate will not, when examined, support the conviction. But it is said that the speech contains a gratuitous attack on Government inasmuch as it charges the Government as siding with the capitalists. I doubt whether such an aspersion could be held to excite disaffection against the Government if, as in the present case, it is made incidentally in the course of advocating a legitimate cause, and does not form as it were the burden of the song. But it is undoubtedly true that in making these exhortations it Was quite unnecessary to bring in any reference to Government, and it is also true that the speaker has more than once referred to Government as an adversary, and said in effect that they are on the side of the capitalists. She has also used some strong expressions with regard to Government such as 'enemies' and 'sucking blood.' But, speaking for myself, I should be inclined to hold that these expressions that were uttered in the excitement of the moment were not necessary to the substance of her argument, and that some allowance should be made in the interests of freedom of discussion. But I can realise that it is possible to hold otherwise. The speech at any rate comes near the border line of what is permissible, and the section which we are now considering, Section 124A of the Indian Penal Code, is a wide and all-embracing section. The learned Chief Justice, while agreeing that the speech should be read as a whole and that undue weight should not be given to metaphorical expressions, has come to the opinion that the speech does transgress the limits laid down by the law, and his opinion is entitled to and must receive the greatest deference and respect. I do not think, therefore, that I should formally differ on this narrow question so as to have the case sent before a third Judge and be argued over again for another couple of days especially in view of the fact that we propose to reduce the sentence to one of fine only in the present case. I, therefore, agree in the order proposed.