H.R. Krishnan, J.
1. Each of these three appeals is against the same batch of four respondents accepting joint responsibility for the publication early in 1963 of certain articles and news-items in a weekly paper called 'Choukhambha' published at Indore. They form a board editing the journal and when the prosecution was lodged under Rule 41 (5) of the Defence of India Rules of 1962 they refused to divulge the individual author of any of these articles which in all were eight in number and insisted upon being prosecuted jointly.
The gravamen of the charge against them was that in these articles which will presently be referred to one by one they had given pre. judicial reports, and thereby committed pre-judicial acts likely to cause disaffection among that armed forces, prejudice and interference with the recruitment and the discipline among such forces, bringing them into hatred and contempt and the exciting of disaffection towards the government in general, and of the officers in particular and finally to prejudice the conduct of the military operations. Three separate cases were started but on account of the general similarity of the material upon which the prosecution was based and the identity of the accused they were heard together.
The learned Additional District Magistrate felt that -
The prosecution has not been able to adduce any positive evidence in this respect to prove that any disaffection, hatred or contempt was ever occasioned or there was any likelihood of any such incident. In my view mere giving caution is not a prejudicial act and no offence is proved.
Obviously the learned Magistrate was looking for direct evidence from the mouth of witnesses that reading such and such report the witness or witnesses acquired a certain attitude to the armed forces. He forgot that the essence of the charge was the tendency which may or may not have materialised in any individual case and which even if materialised may not have been capable of direct proof by positive evidence.
2. Accordingly three appeals have been filed by the State and have been heard together.
3. The basic argument on behalf of State is that in all such cases we have to see the tendency or the 'Likelihood' which is the word used in Rule 35 of the particular Act or report causing any of the undesirable repercussions in the mind of the public. As against it the reply of the respondents is that in all such cases we should not be guided by the immediate verbal purport of the report or the article but should give due regard to the motive behind it. It is strenuously urged that exceptions to the freedom of speech given by Article 19 of the Constitution though the Defence of India Rules are, still they do not have the effect of completely abolishing that right. Something of it still remains and the respondents should be deemed justified in their exercise of what might be called the 'residuary freedom of speech.'
Again, it is urged that though taken literally these reports and comments may come within the letter of Rules 35 (6) (b) to (f) and 35 (7), they should be projected into a democratic set up and the real spirit behind them as understood by the respondents should be sympathetically viewed. The respondents place their case on the general principles mentioned and suggested in Niharendu Dutt v. Emperor AIR 1942 FC 22 which has been followed in certain rulings like In re Kissan Singh, A I R 1943 Mad 514. State for its part points out that AIR 1912 PC 22 has been clearly overruled in Emperor v. Sadashiv Narayan AIR 1947 PC 82.
4. Before setting out the gist of the eight reports we note that each of them is more or less a jumble of different elements. The main topic is the incompetency, cowardice and the moral weakness of the officers of the Indian Army contrasted with the heroism and the steadiness of the rank and file of the soldiers who are however, being left in the lurch by the former. But along with it there are highly coloured political comments in criticism of the party in power and in particular of the Prime Minister of that time. Thirdly, there are statements and insinuations which are quite defamatory but in these prosecutions we are now concerned only with the first element among them. It may be that the political campaigning under the second heading is neither fair nor honest; but the Defence of India Rules are obviously not meant to cheek that kind of political pamphleteering by parties in opposition anxious to beat the party in power by whatever stick they lay handa upon. Finally, the third element is of defamation : however improper or gross it does not attract the Defence of India Rules.
5. Out of the Rules themselves we are directly concerned with the 'prejudicial reports' and 'prejudicial acts.':
Prejudicial report means any report, statement or visible representation, whether true or false, which, or the publishing of which is an incitement to the commission of a prejudicial act as defined. (Rule 35 (7)).
'Prejudicial act' which has been defined in Sub-section (i) has been divided into a number of headings from (a) to (s) with-as often happens is such tabulation-considerable overlapping. We are immediately concerned with the headings (b) to (f) : dealing in one form or another with the armed forces of the Union:
35(6). 'Prejudicial act' means any act which is intended or is likely-
(b) to cause disaffection among, or to prejudice, prevent or interfere with the discipline, health or training of, or the performance of their duties by members of the Armed forces of the Union or public servants;
(c) to reader any member of the Armed forces of the Union or any public servant incapable of efficiently performing his duties as such, or to induce any member of such forces or any public servant to fail in the performance of his duties as such;
(d) to prejudice the recruiting of or the attendance of persons for service in, the Armed forces of the Union or the Civil Defence Service or any Police force or fire brigade or any other body of persons entered, enrolled or engaged as public servants;
(e) to bring into hatred or contempt, or to excite disaffection towards the Government established by law in India;
(f) to bring into hatred or contempt, or excite disaffection towards the Armed forces of the Union or section thereof;
6. Before beginning to discuss it is convenient to set out some of the more offensive or from the view-point of the writer the more effective passages in the articles or news items. They are, as already indicated, a jumble of what passes for simple news items and of comments upon them in recording and criticising the alleged behaviour of the officers of the armed forces and the attitude of these of the Government and individually of the Prime Minister of that time.
7. The case covered by Criminal Appeal No. 375 deals with three articles. They were brought out respectively on the 23rd February, 6th April and 13th April, 1963, that is, within a few months of the retreat of our forces before the advancing Chinese army in the NEFA and in Laddakh. The earliest of them is entitled 'The cause of Indian defeat is the official rule (afsarshahi).' It points out what it calls the 'terrific difference' between the officers and men in the army.
'The State Socialist Party Office has not a letter from Gumnam Singh which is to the following purport,' (Of course the writer is thinking of an anonymous letter).
Recently a soldier of the supply core came to our office having been on the front during the fight. He was quite unhappy at the behaviour of the Government and of the army officers towards him. He said that there was a great difference between officers and men and the former treated the latter as slaves. In fact each officer wants six or seven servants under him. All sorts of work from the washing of the officers' clothes to the polishing of their shoes is taken from the solider. Even while fighting the officers do not give the soldiers their ration of liquor but consume it themselves and the meat that is supplied to the soldiers is of ten of poor quality and sometimes even rotten. The officers never investigate what sort of food is given to the men. Though the supply branch had sufficient food and clothing still it was not distributed to the soldiers as occasion arose so that the Chinese could take very large quantity of stores when they came. The sweets that were sent on the occasion of Diwali for giving to the soldiers never reached them but for want of officers' orders they remained in the stores and fell into the hands of the Chinese. Helicopters used to go to lift wounded soldiers from the front but it was the officers who tied up false-bandages and showing themselves as wounded escaped while the soldiers groaned and died for want of proper attention. Thus the cause of our defeat are these officers.
8. The second letter dated 6.4.1963 is ostensibly a communication from Dr. Ram Manohar Lohia to the 'Choukhambha' written from the border. This is a bit of political pamphleteering and an attack on Government in general and on the Prime Minister in particular. But as an attack on the officers of the forces it is comparatively mild. It also tries to lay down a code of when and how to retreat but that is a matter of opinion. We would not give much attention to this communication of 6th April 1963
9. The third communication is the one dated 13th April 1963 ostensibly a despatch from Dibrn. garb entitled. The army retreated because of the incompetency (nikammepan) of the officers. Where is this Gangotrimain source of the flood of corruption'.
We are now receiving first-hand reports of the retreat from Tejpur in which the Collector himself took to his heels. These reports exposed the idleness, in-competency and the treason (rashtradroh) on the part of the army officers. The morale of our air force officers had just evaporated....
It is said in English that they win their battles in the fields of Eton and Harrow. This may be an exaggeration; but it is quite true that Indian battles are lost in the staff colleges of Hyderabad, Mussoorie, Khadakwasla and Dehardaun. On each of the students in the Hyderabad college 3000/- of the tax-payers' money are spent and they become some kind of rulers or officers, spend their money and learn to live in style. This in fact is the manner in which all Government and military colleges are ran. The students who come out of it do appear smart and fit but when they are put on the touch-stone they just flee. They are always obliged to adopt corrupt ways so as to keep up their style .... This terrible corruption.' How corruption had crept into the army the following details will show. (various instances are suggested)The tragedy of the Indian army is that on the one hand we have got real fighting and brave soldiers and on the other cowardly, luxury-loving and fleeing officers. Nobody dares to say anything against these officers because they are the favourites of Nehruji and are under his protection. Taking advantage of the rules of the emergency even now they are enjoying themselves and living in style while the proud head of the country is bent down because of their doings.
10. That this is not the only tirade against the army officers is clear from the other articles as well. In criminal Appeal No. 377 there are four communications. There are two items dated 20th April. One relates to a military hospital in Poona in which it is reported that 800 wounded army personnel were being treated there.
Practically all of them having to get their limbs amputated because of frost-bites.
It complains how the public in general or even the relations are not allowed access. But the sting of the piece is the contrast which the writer makes out is found between the treatment accorded to the wives of the wounded officers while the jawans and their people find difficulties even in getting to see them.
The wives of officers meet them all right... but permission is not given to see the soldiers. The general rumour is that even 16 or 20 days of imprisonment with the Chinese turns the head of the soldiers so much that when somebody goes to meet them they begin by abusing Nehru Chacha and charge him with having got them into trouble. Therefore the permission is not given to anybody to meet them....
One woman got permission to meet a jawan but that was for once a week. She came back and began to cry.
The other communication dated 20th if entitled. 'The doings of the Nehru Ministry.' This is a virulent and on the whole a bad taste attack on the Government's policy but while it is possible to bring it under the heading of sedition there is nothing particularly prejudicial with reference to the armed forces. It is there-fore unnecessary to set out any extract.
11. The third note which is included in Criminal Appeal No 377 is the most offensive.
Congress bureaucracy and nepotism. Luxury has been the cause of our defeat.
Shri R.N. Mehta interviewed somewhere in the Shahabad District a soldier named Motilal from the front of Sela and Bomdila. He said that the cause of our defeat is Nehru's cry for peace and the luxury and case sought by officers (army officers). Many Chinese girls had come to the front and at night they used to enter the tents and win over the officers. Upon that the Chinese would shout that great numbers were coming and our Officers would take to their heels without verifing whether it was true. We twenty five soldiers were fighting at one place and out of us thirteen had died. But we stuck to our place and retreated only after our ammunition was used up.
Referring to rifles the soldier said that the Chinese bad one rifle for eleven soldiers; but each of us had a rifle. In spite of it we had to retreat.
12. The only article in the case relating to Criminal Appeal No, 376 is purely about the military matters.
How did the savage Chinese fight Our men died of hunger in the Tawang front.
Our information service only made money and allowances while our officers were sunk in pleasures.
This is supposed to come from Tejpur.
Everybody knows that the Indian soldier's weapons were inferior to those of the Chinese. But it is said that for want of food the Indian soldiers had to die of starvation after a number of days. They were indeed compelled to live on the leaves of trees ....
On telegraphic and wireless information aeroplanes reached food after six or seven days; but even then they airdropped them at wrong spots. The soldiers had to face many difficulties in collecting these airdropped packages. The tanks that started from Bomdila came to a stop at the Sela pass. Considering all this the heroic fight put up by our soldiers deserves all the praise. They came back after facing many difficulties but with a strong heart. But at the same time it is said that while on the one side the soldiers were dying of hunger, on the other the army officers were devoting themselves to pleasure. They sought safe places while the soldiers were lying in wilderness.
It is said that the members of the secret service deputed to the advance areas only thought of collecting their allowances. They wandered here and there and gave information; but because of their behaviour the officers could not know of the elaborate preparations made by the enemy. It is on the information given by the secret service that while going to Ceylon our Prime Minister Nehru said that the Chinese should be pushed out and it turned out that it was we that were in our turn pushed out of our places.
13. The foregoing being a gist of the key passages in these news items or articles, we have to see how far on the face of them they are pre. judicial in the sense already set out and how, if at all, the case law cited on behalf of the respondents still saves them from their legal effect.
14. We have for reasons already indicated clearly avoided touching on the passages in these communications that are just defamatory. Certainly the respondents would be liable for them also on prosecution by the persons defamed either by name or by indicia sufficient to establish identity in the mind of the average reader; but in a prosecution under the Defence of India Rules we are not concerned with them,
15. On the second heading, namely, of what is popularly called sedition (though that word has not been either used or defined in the body of the Indian Penal Code or the Defence of India Rules) the law applicable to the instant cases are contained in Rule 35 (6) (e) the wording of which is the same as in the corresponding sub-rule of the old Rule 34 which has been the subject-matter of the case law both of the Federal Court and overruling it of the Privy Council. There are two points to be noted in this connection. Firstly, that a prejudicial act which may popularly speaking come under the description of sedition can as in the instant case be also one concerning the proper functioning of the armed forces. By trying to make out that the Government has reduced the armed forces to a miserable condition which the writer describes in these articles the writer is at the same time bringing it into contempt and hatred.
The judgment of the lower Court shows that there-as here -the argument on behalf of the. respondents had been towards making out that, these articles did not bring the writer under the mischief of Section 124A of the Indian Penal Code. The comparable case in A.I.R. 1942 F.C. 22 (supra) seems to have been cited there also as well as the Madras case in A. I. R. 1943 Mad. 514 (supra), to establish that though there may be an appearance of sedition there can be really none in the instant case because the writer has been using nothing worse than the language current in the present-day political discussions in our country.
As will presently appear, we are really inclined to put our emphasis on the more mischievous or the more prejudicial aspect of those communications, namely, the repercussions on the armed forces and the citizens' attitude towards them. All the same, since the line taken by the lower Court being basically wrong and against. the principles enunciated by the Privy Council in A.I.R. 1947 P.C. 82 (supra), it is convenient to deal with this aspect briefly.
16. It is generally asserted that the provisions in the Defence of India Rules about bringing the Government into contempt and hatred and the general penal law in Section 124A of the I.P.C. are to the same effect. Broadly speaking it is true. But on a closer study there would be a two fold difference; one in the wording itself, and the other in the general framework of the legislation. The wording of the Defence of India Rule is.intended or likely to bring the Government into hatred or contempt or to excite disaffection, towards it....
whereas in the Penal Code it is-.bring or attempts to bring....
But as the Privy Council has pointed out-
The offence consists in exciting or attempting to excite in others certain bad feelings towards Government .... Even if he (accused) neither exaited now intended to excite a rebelion or outbreak, or forcible resistance to the authority of Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the Section 124A.
Reading the Defence of India Rule 35 (6) (e) in the same light, one should add that whatever the intention if the communication is likely to excite feelings of hatred or contempt or disaffection towards Government the person would be liable under Section 41(5) whether or not he really intended this effect or was only indulging in the luxury of political mud-slinging. The second point of difference is that the law of sedition so called, contained in the Indian Penal Code, is the general law of the land to be invoked in all circumstances whether or not there is an emergency. On the other hand, the Defence of India Rules form a special legislation directly meant for an emergency. Whereas the broad charitable approach suggested by the Federal Court and directly or indirectly disapproved by the Privy Council may is certain respects be proper while applying the general law, it would certainly be improper to import those general considerations in applying a law which has been expressly made to meet an emergency.
17. As the Privy Council has pointed out, we have to interpret both Section 121A., I. P C. and Rule 35 (6) (e) of the D. I R. as statute law without colouring our minds with the principles of the English common law. Thus even taking these articles in their tendency to bring Government towards it, the respondents have committed a prejudicial act, the reports, themselves being prejudicial ones.
18. But as it turns out, the respondents have done something far worse and far more prejudicial than what is popularly called sedition. Even supposing that they can plead in extenuation the unedifying and undignified language usual in political controversy in our country and the sort of language commonly used by political factions towards one another, still this can be no excuse for the criticism of the armed forces in general and of the officers in particular, specimens of which have been set out above. It is difficult to understand what exactly was in the minds of the writers. They have got some good things to any about the rank and file but that is not so much to give the due praise to our heroic soldiers but to blacken the officers.
The general impression created by these communications is that the writer wants to raise something like a class war within the army itself, the rank and file on the one side and the officers on the other, the former being pure sheep and the latter bad goats. Nothing can be more dangerous for the discipline and the good fighting power of the force than such distinctions being made and obviously wild and exaggerated reports made about the officers' luxury, cowardice and oppression of the rank and file. The judgment of the lower Court shows that there was really nothing material urged on behalf of the respondents in extenuation of this attack. Nor has there anything been said before us either. What was suggested is the production of a reports placed before Parliament this being part of the result of the investigation made by a commission or committee into the causes of the debacle in 1962.
Even that report excludes certain matters the publication of which would be prejudicial. The point to note is that even on the supposition that a few of these allegations are true in regard to a few individual officers, 'still their publication is prejudicial. Here it is doubly so because on the assumption that certain officers had been incompetent wide generalisations have been made. In no circumstances can the mere truth of any allegation be made a defence in a charge for the committing of the prejudicial act or the publishing of a prejudicial report. For example, there might be a defeat the publication of which can still be a prejudicial act. We may not be understood to be holding that any of the allegations made against the officers of the armed forces has been established to be true; but supposing that there is something in the report placed before Parliament showing that some of the allegations were true in regard to some of the officers, still their publication outside and in this generalised form is prejudicial.
19. What passes one's understanding is that the writer is so much obsessed with the distinction between the rank and file on the one side and the officers on the other that he forgets to note that this is an invariable feature in all armies. Every Government whether democratic or dictatorial and whether run by this or that political party his necessarily to maintain to army in good fighting condition. Otherwise it will cease to govern the government being taken over by some other party or foreign power which is capable of governing with the help of an army. And whatever the army, there are bound to be officers and men and the latter being bound in discipline to obey the officers who in their own turn are subject to direction by those higher up. If this inevitable state of affairs has to be disturbed by the preaching of a class-war within the army, there will be no more discipline nor any fighting strength left in the armed forces.
20. These articles also have a tendency seriously to prejudice the recruiting. One cannot expect the recruitment of suitable personnel if people go about publicly asserting that the officers, eat and drink up the rations allotted to soldiers, treat them like slaves and when there is a fight run away tying false bandages leaving the rank and file to die of wounds or by starvation.
21. All things considered, therefore, whatever one might say about the aspect of these articles that might come under the description of sedition, there is altogether no doubt that these are pre-judicial reports and the publication is prejudicial acta with reference to their effect on the discipline and functioning of the armed force a on the one side and the recruiting for the same on the other. Thus there Rule 41 (5) of the Defence of India Rules (sic). It is difficult to see how the lower Court persuaded itself that these articles were not even likely to have these untoward results. We accordingly allow the appeals and convict under Rule 41 (s) all the four respondents in each of the three appeals.
22. Coming to the punishment we note that the incidents that have led to these communications are fast becoming matters of history. Besides, there have been many nearer events which have, as it were, blacked out of public memory a good deal of the happenings of 1962. But we have to make it clear that there are prejudicial acts,-highly prejudicial in fact, and subversive of the strength and morale of the armed forces. A sentence of fine should be sufficient to produce this effect, Accordingly we sentence each of the respondents to pay a fine of Rs. 100/. (one hundred) in each of three cases with imprisonment for three months in default of payment of ; fine in each case. Since the prejudicial acts in each of the cases are distinct and separate, there has to be a separate sentence in each of these appeals.