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Urdu Daily Newspaper pratap Vs. the Crown - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana
Decided On
Judge
Reported in1949CriLJ813
AppellantUrdu Daily Newspaper "pratap"
RespondentThe Crown
Cases Referred and Eamal Sirkar v. Emperor I. S. S.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....1. this is an application under s. 23, press (emergency powers) act 1931 (act xxiii [28] of 1981) for setting aside an order of forfeiture of security made on 16th may 1948.2. the petitioner before us, shri k. narendra, is the editor, printer and publisher of an made on 9fch february 1948 by mr. s. khurshid, chief commissioner, delhi, the petitioner, as the publisber of that newspaper, was required to deposit security of rs. 3,000. on 18th february 1948 the security so demanded was duly deposited. by an order, being order no. f. 8 (11)/48- press, passed on 15th may 1948 the aforesaid chief commissioner, in exercise of the powers conferred by sub-section 1 (a) of s. 8, press (emergency powers) act 1931 declared the said security as forfeited to his majesty. the ground for such forfeited,.....
Judgment:

1. This is an application under S. 23, Press (Emergency Powers) Act 1931 (Act XXIII [28] of 1981) for setting aside an order of forfeiture of security made on 16th May 1948.

2. The petitioner before us, Shri K. Narendra, is the editor, printer and publisher of an made on 9fch February 1948 by Mr. S. Khurshid, Chief Commissioner, Delhi, the Petitioner, as the publisber of that newspaper, was required to deposit security of Rs. 3,000. On 18th February 1948 the security so demanded was duly deposited. By an order, being order No. F. 8 (11)/48- Press, Passed on 15th May 1948 the aforesaid Chief Commissioner, in exercise of the powers conferred by Sub-section 1 (a) of s. 8, Press (Emergency Powers) Act 1931 declared the said security as forfeited to His Majesty. The ground for Such forfeited, as recited in the order itself headed 'Ek Dukhi Dil Ki Pur Dard Pukar' and a news time headed 'Maulana Azad Aur Kidwai Working Committee Se walk out Kar Gae' respectively containing matter of the nature described in cls. (b) and (h) of sub.S. (1) of S. 4 of the said Act. The present application is directed against this order.

3. Section 23 of the Act, under which this application has ben made, confers on the High Court powers of a very limited character. All that this Court is authorised by this section to do is to decide if the newspaper in respect of which the Order of forfeiture has been made did or did not contain any words, signs or visible representations of the nature described in Section 4, Sub-section (1) of the Act If the appears to the High Court that the newspaper did not contain any words signs or visible representations of the nature described in that section then, by s. 25 of the Act. The High Court is authorised to set aside the order of forfeiture. In this case the order of forfeiture was made on the ground that the latter and the news item published in the petitioners newspaper 'Pratap' and specified in the Order contained matter of the nature described in clauses (d) and (h) of Sub-section (1) of s.4 of the Act. It is therefore, essential in the first instance to have a clear notion of the nature or kind of words which fall within the secope and ambit of those two clauses and then to consider whether the impugned letter and item really contaion any words of that nature of Kind.

4. The relevant provisioner of Section 4 Sub-section (1) clauses (d) and (h) are in the terms following:

4. (1) Whenever it appears to the Provincial Government that any printing press . . . . .is used for the purpose of printing or publishing any newspaper . . . . . containing any words, signs or visible representations which-

(a)....

(b)....

or which tend directly or indirectly-

(c) ....

(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 or

(e) ....

(f) ....

(g)....

(h) to promcte feelings of enmity or hatred between different classes of His majesty's subjected or

(i)....

the Provincial Givernment may do certain things as therein specified. Then follow four explanations of Which following are material for our present purpose:

Explanation 1....

Explanation 2- comments expressing disapprobation of the measures of the Government with a view to obtain there alteration by lawful means without exciting or attempting to excite hatred contemplated or disaffection shall not be deemed to be of the nature described in clause (d) of this sub-section.

Explanation 3-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to be of the nature described in clause (d) of the sub-section.

Explanation. 4- Words pointing out without malicious intentention and with an honest view to their removal matters which are producing or have a tendency to produse feelings or enmity or hatred between different classes of his Majesty's subjects shall not be deemed to be words of the nathur described in clause (h) of this section.

It will be observed that clause (d) quoted above is expressed in practically the same language as is used in the well-known s. 124A, Penal code, eonetituting and providing punishment for the dreaded offence which by its marginal note is called 'Sedition.' It will be also observed that almost similar language was used in clause (e) of the equally awe-inspiring Rule 34 (6), Defence of India Rules for defining one of the 'prejudicial acts' which were prohibited by B. 88(1) of those Bales. It has been said that S. 4 (l) (d), Press (Emergency Powers)} Act, is wider than s. 124A, Penal Code (see per Beaumont, C. J. in In re Pothan Joseph 66 Bom 472 at p. 487 : A. I. R. (19) 1932 Bom. 463 : 33 Or. L. J. 749 (8) B. This is certainly true in the sense that the words etc, which bring a person within the ambit of s. 124A, Penal Code, must be such as actually bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection towards His Majesty or the Government established by law in British India whereas it is enough for the purposes of s. 4 (1) (d), Press (Emergency Powers) Act if the words etc., tend directly or indirectly to bring into hatred or contempt, or to excite disaffection towards His Majesty or the Government or the administration of justice or any class or section of His Majesty's subjects. Likewise, clause (e) of B, 84 (6), of the Defence of India Rules went beyond S. 124A, Penal Code, in that an act which was likely to produce the same consequences fell

With in the mischief of the rule. If for the common word's 'bring into hatred or contempt or excite disaffection towards His Majesty or the Government' found in all three of the provisions mentioned above we use the compendious expression or formula 'Sedition' then adopting the language of Bose and Puranaik J.J. in Bhagwaticharan Shukla v. Provincial Government C.P. and Berar. I. L.R. (1946) Nag. 865 : A.I.R. (34) 1947 Nag. 1 : 47 Cr. I.J. 994 S.B. it may be said that while under S. 124A it is necessary to establish sedition it self , it is enough under S.4(1)(d) , Press (Emergency Powers) Act to establish a direct or indirect tendency to sedition and under Rule 34 (6)(e) to establish a likelihood of 'sedition' In other word what are the meaning, import and content of the common words 'bring into hatred or contempt, or excite disaffection towards His Majesty or the Government'?

5. In England sedition is a misdemeanour Common Law consisting of acts done, words spoken and published, or writings Capable of being a libel published, in each case, with a seditious intention which is the essence of the offence. Seditious intention has, in a series of decisions of the English Courts, been stated to be an intention, (1) to bring into hatred or contempt or to excite disaffection against, the King or the Government and Constitution of the United Kingdom or either House of Parliament or the administration of justice, or (2) to excite the King's subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established, or (s) to incite persons to commit any crime, in general disturbance of the peace, or (4) to raise discontent or disaffection amongst His Majesty's subjects, or (5) to promote feelings of ill-will and hostility between different classes of such subjects. (See Halsbury's Laws of England, vol. 9, Arts, 457 and 458 p. 302), It will at once strike even the casual inquirer that the law of sedition thus formulated and defined is so vague and general that it leaves people exposed to executive wrath or vengeance on the slightest pretext and the freedom of speech and association could be so effectively stifled as to prevent people from ventilating even their legitimate grievances crying for redress. This rigour of the law was, however, mitigated by judicial pronouncements firmly laying down that an intention was not seditious if the object was to show that the King had been misled or mistaken in his measures or to point out errors or defects in the Government or Constitution with a view to their reformation, or to excite the subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out, with a view to their removal, matters which were producing or had a tendency to produce, feelings of hatred and ill-will between classes of the King's subjects, (Halsbury, vol. 9 Art 458 p. 303), It will again be observed that even this qualification thus imposed on the general definition of sedition, while it afforded to the people a somewhat restricted scope for ventilation of their grievances and views on matters of public interest, nevertheless left the law of sedition in a nabulous and vague state as there was no knowing what amount of hatred, contempt or disaffection could bring people within the arms of the law. Here again, the English Judges stepped in and prescribed an external standard to measure the nature and quality of hatred, contempt or disaffection which would render a person liable to prosecution. In a series of cases, some of which are referred to in counsel's argument in the case of Wallace-Johnson v. The King (1940) A. o. 231 : 1910-1 ALL E. B. 211 and some in the judgment of the Federal Court in Niharendu Butt Majumdar v. Emperor A. I. b. (29) 1942 F. C. 22 : 43 cr. L, j. 504, a further qualification was engrafted on the general definition of sedition namely that in order to come within the mischief of the law the words, etc., must be calculated to incite people to acts of violence and outrage. Thus in Rex v. Sir Francis Burdett (1820) 4 B. & Aid. 95 at p. 181, Best J. recorded his previous summing up to the jury as follows:

In forming their opinion on the question of libel, I told the jury that they were to consider whether the paper contained a sober address to the reason of mankind, or whether it was an appeal to their passions, calculated to incite them to acts of -violence and outrage.

In his summing up to the jury in Beg v. Collins (1839) 9 0. & p. 466, Littledale J. referred to exciting people to tumult and disorder as constituting sedition. In 1868 Fitzgerald J. in B. v. Sullivan (1868) 11 Cox. 0. o. 44 described sedition as disloyalty in action and stated that law considered all those practices which had for their object to excite discontent and disaffection, to create public disturbance or to lead to civil war. Even as late as 1909 Colridge J. in Rex v. Aldred (1909) 22 Cox. 0. 0. l : 74 J. p. 56 observed:

The word 'sedition' in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or an uproar; it implies violence or lawlessness in some form.

It was thus well established in England that in order to constitute sedition the words, etc., must not only bring the authorities into hatred, contempt or disaffection but should generate or excite such an amount of intense hatred, contempt or disaffection as may lead to tumult or public disorder.

6. To sum up: the English law of sedition as expounded in the judicial decisions firstly formulates what is sedition, secondly, states what is not sedition and thirdly lays down an external standard to measure the hatred, contempt or disaffection which will bring the person who generates or excites the same within the clutches of the law. The result, therefore, is that the English law of sedition permits the freest public discussion, comment, criticism and censure, either at meetings or in the Press, in relation to. all political or party questions, all public acts of the servants of the Crown, all acts of the Government, and all proceedings of Courts of justice and does not put any narrow construction upon the expressions used in such discussions, etc., but only insists that the criticism and censure must be without malignity, must not impute corrupt or malicious motives and must not incite people to disobey lawful orders or promote violence, tumult or public disorder.

7. There can be no doubt that the law of sedition as enacted in S. 124A, Penal Code, was based on the English Common Law. In adapting the English law, the Indian Legislature in the main body of the section used practically the same language in which the misdemeanour of sedition was formulated and defined by English Judges and jurists. In the several explanations appended to 9.124A, the Indian-Legislature apparently sets forth what under the English law is not considered seditious intention. The third main feature of the English law of sedition which prescribes what we have described as the external standard to measure the hatred, contempt or disaffection has not been in terms incorporated in 8. 124A. It has, therefore, been the attempt of counsel from very early times to maintain that this third element also is implied in the formulation and definition of the offence of sedition in the earlier part of the section but this attempt has, with some exceptions, been always repelled by the Courts in India. This leads us to an examination of the judicial decisions of the different High Courts in India.

8. In the course of his address to the jury in Queen-Empress v. Jogendra Ghander Ghose 19 Gal. 35 at p. 42 Mr. Jackson appearing for the accused reminded them that Sir James Stephen, when proposing that S. 124A as then worded be passed into law, had asserted that there must be an intention to resist by force or attempt to excite resistance by force before the offence could be brought under the section. The critical word in S. 124A as it then stood was 'disaffection' and Sir Comar Petheram C. J. in his summing up to the jury simply said 'Disaffection means a feeling contrary to affection.'

9. In Queen-Empress v. Bal Gangddhar Tilak 23 Bom. 112, Mr. Pugh for the accused contended that the section was intended to punish an attempt to create a rebellious spirit against the Government and referred to earlier cases including the summing up of Fitzgerald J. in B. v. Sullivan (1868) 11 conc. a to which we have already referred. Strachey J, in his final summing up pointed out that in England seditious libel was not a statutory offence but a common law misdemeanour elaborated by the decisions of Judges but in this country the law to be applied was contained in the Indian Penal Code. Then the learned Judge referred to the section and after expressing his agreement with the observation of Sir Cornar Petheram C. J. referred to above the learned Judge at p. 184 said: 'You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment; if a man excites or attempts to excite feelings of disaffection, great or small, he 1b guilty under the section.'

Further down at p, 135, we find the following observations:

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 articles to excite rebellion of disturbance, his act would doubtless fall within 8. 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 make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion that view is absolutely opposed to the express words of the section itself, which as plainly as possibles makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt.

Application was made to the Privy Council for special leave to appeal and no less a counsel than Mr. Asquith Q, C. contended that the learned Judge had misdirected the jury on the meaning of the section, for 'sedition' was 'disloyalty in action'. The Privy Council rejected the application and approved of the summing up of Strachey J. (see Bal Gangadhar Tilak v. Queen-Empress 22 Bom. 528 : 25 i. A. l.

10. In Mrs. Annie Beasant v. Govt. of Madras 39 Mad. 1085 : a. i. b. (5) 1918 Mad. 1210 : 18 Or. L. J. 167 (B. B.) which was a case under the Indian Press Act of 1910,8. 4 of which was couched in similar language as S. 124A, Penal Code. Section 4 (l) of the present Indian Press (Emergenoy Powers) Act 1931, and B. 34 (6) (e), Defence of India Rules, it was urged that the critical words meant such hatred, contempt or disaffection as would lead to violence. Ayling J., on the authority of Strachey is observations repelled this contention. This case also went up to the Privy Council and the decision was upheld, (see Mrs. Annie Beasant v. Advocate General of Madras 48 Mad. 146 : A. I. R (6) 1919 P. O. 31 : 20 Cr. D. J. 593.

11. That advocating expressly any form of rebellion is not a necessary element in an offen-ce under s. 124A, Penal Code, was also the view of Rankin C. J, in Emperor v. Satya Banjan Bakshi, fi6Oal. 1085 : A. I. B. (17) 1930 Gal. 220 : 31 or. l j. 818. In in re Potkan Joseph, 66 Bom. 472 : A. I. B. (19) 1932 Bom. 468 :33 or. L. J. 749 s. B.) Beaumont C. J. expressed the view that under clause (d), added to S. 4, Press (Emergenoy Powers) Act, 1931, by an Ordinance, and which is now reproduced in S. 4 (l) (d) every charge of raiaoonduot by Government came within that section.

12. The question of the meaning and implication of the words 'to bring into hatred or contempt or to excite disaffection' which were used in the Criminal Code of the Gold Coast came up before the Privy Council in Wallaco Johnson v. The King (1940) a. c. 231 : 1940-1 ALL B. B. 241. The contention was that the impugned words must, in the light of the Eug. Hah decisions, be calculated to urge people to actual violence. In repelling counsel's contention based on the English decisions their Lordships at p. 239 observed ;

Their Lordshipa throw no doubt upon the authority of these decisions, and if this was a case arising in this country, they would feel it their duty to examine the - decisions in order to test the submissions on behalf of the appellant. The present case, however, arose in the Gold Coast Colony, and the law applicable is contained in the Criminal Code of the Colony.

Their Lordships held, on a construction of the language of that Code which was in similar terms as those of the provisions we are now considering, that incitement to violence was not a necessary ingredient of the crime of sedition. It was thus again authoritatively decided that the useful and necessary safeguard of an external test prescribed by the English Judges for measur. ing the intensity or depth of the hatred, con-tempt or disaffection which will bring a case within the ambit of the offence of sedition could not be read into the section and that effect was . to be given to the words of the seotion as they Btood, untramelled by the principles laid down by the English Courts.

13. A departure from this striot rule of literal construction was, however, boldly mada by the Federal Court in Niharendu Dutta Majwmdar v. Emperor a. i. b. (29) 1942 p. C. S3 : 43 or. L. J. 604 which was a case under R, 34 (6) (e), Defence of India Kules At p. 25 their Lordships said :

It will be observed that the first of these Acts is described in precisely the same language as is used to describe the offence of sedition in S. 124A, Penal Code. We were invited to say that an offence described merely as a 'prejudicial act' in the Defenoe of India Eules ought to be regarded differently from an offence described as 'sedition' in the Code, even though the language describing the two things is the same. We cannot accept this argument. Sedition is nonetheless iedition because it is described by a less offensive name and in our opinion the law relating to the offence of (edition as defined in the Code is equally applicable to the prejudicial act defined in the Defenoe of India Bulea. We do not think that the omission in the rules of the this 'Explanations' appended to the section of the Code affects the matter. These are added to remove any doubt as to the true meaning of the Legislature; they do not add to or subtract from the section itself; and the words used in the rules ought to be interpreted as if they had been explained in the same way.

After referring to the dictum of Lord Sumner in Bowman v. Secular Society Ltd. (1917) A. C, 406 : 86 L. 3. Ch. 568 as to the change in our notions of sedition with the change of time and environment and quoting the relevant portion*f the eumming up of Fitzgerald J. in B. v. Sullivan 186811 cox 0. c. 44 (supra) defining what was sedition their Lordships at p. 26 observed :

The first and most fundamental duty of every Gov. etnment is the preservation of order since order is the condition precedent to all civilization and the advance of human happiness. This duty has, no doubt, been sometimes performed in such a way as to make the remedy worse than the disease; but it does not case to lie a matter of obligation because some on whom the duty rests have performed it ill. It is to this aspect of the functions of Government that in our opinion, the offence of sedition stands related. It is the answer of the State to those who, for the purpose of attacking or subverting it, seek (to borrow from the passage oited above) to disturb its tranquillity, to create publio disturbance'and to promote disorder, or who incite others to do so. Words, deeds or writing constitute sedition, if they have this intention or this tendency, and it is easy to see why they may also oonstitute sedition, if they seek, as the phrase is, to bring Government into contempt, This 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. Fublio disorder or the reasonable anticipation, or likelihood of public disorder, is thus the gist of the offence, The acts or words complained of must either incite to disorder, or must be High as to satisfy reasonable men that that is their intention or tendency.

In the result the Federal Court read into our aections the beneficial and necessary qualification grafted on the definition of sedition by the English Judges prescribing what we have called the external standard by which the impugned words etc., were to be judged. This was incubitedly contrary to the series of Indian decisions and those of the Privy Council referred to above. This decision of the Federal Court was followed by the Bombay High Court in Imperator v. Sadashiv Narayan I. L. E. (1944) Bom. 452 : A. I. H. (31) 1944 Bom. 255 : 46 Or. L. J. 118 which was a case under Rule i34 (6), Defence of India Rules and by this Court in Harkissen Singh v. Emperor A. I. R. (33) 1946 Lah. 22 : 47 cr. L. J. 345 S.B., which was a case under S. 4 (1) (d), Press (Emergency Powers) Act, 1931.

14. In Bhagwati Gharan v. Provincial Government G. P. & Berar, I. L. B. (1946) Nag. 865 : A. I. E. (84) 1947 Nag, 1 : 47 Or. L. J. 994 S.B. Pollock J. in his dissenting judgment followed the observations of Beaumont C. J. in In re Pothan Joseph : 66 Bom. 472: a. i. b. (19) 1932 Bom. 468: 33 Or. L. J. 749 8. B.) and did not even refer to the decision of the Federal Court mentioned above. The majority of the Court (Bose and Puranik JJ.) said, with refer, once to the critical words under consideration:

There can be no doubt that these are words of wide import and that unless they are applied with restraint and care, almost every criticism of Government would fall within their purview. But we think there is equally no doubt that the words have acquired a distinct legal connotation by the passage of time and that they are now almost terms of Article

Then after referring to the decision of the Fedaral Court and to that of the Privy Council in the Gold Coast case : 1940 a. 0. 231: 1940-1 all E. E. 24l) the learned Judges observed at page 6:

What we understand the learned Judges to say is that when the words are construed as a whole in the light of the explanation to the section, then it is clear that they are not meant to be construed too literally in other words, they are to a certain extant terms of art which had already acquired a definite legal meaning before they were incorporated into the Indian Act and Ordinanoe.

Then as to incitement to violence being a necessary ingredient of the law of sedition, the learned Judges doubted whether that was what the Federal Court had meant. With great respect to the learned Judges, this part of their judgment appears to us to be an attempt to reconcile the two irreconcilable decisions by overlooking their real conflict which appears to us to be obvious. It is much better, we think, to recog. nise that conflict than to make an unprofitable and futile attempt at a reconciliation between them. In In re Jang.i-Azadi A. I. R. (35) 1948 Lah. 6 : 48 Or. L. J.931 S.B., reference was made to the Federal Court case of Niharendu Dutt Majumdar. (a. i. e. (29) 1942 p. c. 22: 43 or. L. J. 504), but it was not considered necessary in that case to refer to this appect of the matter.

15. Then came the Privy Council decision in Eing.Bmperor v. Sadashiy Narayan Bhahrao 74 I. A. 89 : I. h, B. (1947) Bom. 110 : 61 0, W. N. 768 : A. I. B. (34) 1947 P. 0. 82: 48 Or. L. J. 791 which was an appeal from the decision of the Bombay High Court reported in Imperator v. Sadashiv i. l. b. (1944) Bom. 452 : A. I. B. (31) 1944 Bom. 255 : 46 Or. L. J. 118 to which reference has already been made. The Privy Council again reiterated that it was not an essential ingredient of a prejudicial act within the meaning of Bule 34 (6) (e), Dafenoe of India Rules or of sedition within the meaning of s. 121A, Penal Code, that it Bhould be an act which is intended or likely to incite to public disorder and expressly overruled the decision of the Federal Court in Ntharendu Butt Majumdar's case (A. I. E. (29) 1942 P. 0. 22 : 48 or. l. j, 604). A Special Bench of this Court of which one of us was a member had, in the recent case of Eidar Nath v. The Crown 51 P. L. R. 82 : a.i.b. (36) 1949 B. p. 289, even without the aid of the last mentioned Privy Council case but relying on the Privy Council decision in the Gold Goast case (1940 A. 0. 231 : 1940-1 ALL B. P. 241), come to the conclusion that incitement to violence was not necessary in order to take action under the Indian Press (Emergency Powers) Aloft 1931. The Federal Court decision in Niharendu Butt Majumdar's case A. I. R. (29) 1942 f. o. 23 : 43 or. L. J. 504 having been overruled by a tribunal competent to overrule it we do not oonsider that it is permissible to us to rely on the Federal Court decision.

16. The result of the authorities discussed above may now be summed up. It is quite dear that it is no longer possible for us, however much we may regret it, to read into S. 121A, Penal Code or 8. i (l) (d), Indian Press (Emer-genoy Powers) Act, 1931, the safeguards pro. vided by the English decisions which presoribe what we have called the external standard requiring that in order to amount to sedition the words etc, muat generate hatred, contempt or disaffection of Buch intensity or depth as would be likely to result in violence or tumult or publio disorder. The only safe. guard now available to the subject is what is provided by the several explanations appended to the sections. Every comment expressing disapprobation of the measures of the Government or of the administrative or other aotion of the Government, in the nature at things and strictly speaking, is likely to create a certain amount of feeling of resentment against the Govern, znent but the explanations clearly indicate that the* legislature has left some room, how. ever restricted, for bona fide criticism or comment. In other words, the sections taken and read as a whole are not to be regarded as intended to minister to the mere vanity or susceptibilities of the Government'or its officers but permit reasonable criticisms, comments and ventilation of grievances although the aama may generate or excite some amount of resent, ment or disapprobation against the Govern, ment provided that such resentment or disapprobation does not generate or excite the more intense or deeper passion of hatred, contempt or disaffection. To put the same thing in another way, the hatred, contempt or disaffection made oulpable by the sections we are considering muat, in its intensity and depth, be more than a mere feeling of resentment or disapprobation which is generated by legitimate comments, critioisms or ventilation of genuine grievances. Such we apprehend is the meaning and effect of the section of the Indian Presa (Emergency Powers) Act 1931 we are considering. We now proceed to examine the impugned letter and news item in the light of the legal principles explained above.

17. Wefirattake up the letter that was published in 'Partap' in its issue of 6th May 1948. It purports to be a letter written by a named person from a given address which is called the Kingsway Eefugee Oamp. There is no suggestion that the writer is a fictitious person or that he is not a refugee from the West Punjab. It is addressed to an editor of a newspaper who is obviously regarded by the writer to be an influential person. Bead as a whole, the letter is in substance, nothing more than an impassioned appeal to an editor of a newspaper by a refugee on behalf of all refugees who in their belief have suffered and sacrificed their all to take up their cause fearlessly and to wake up the Government to their responsibilities towards the refugees. It complains of what the writer considers to be the indiffer-enoe of the authorities and the unsympathetic; attitude of the rich but miserly capitalists. It laments that instead of sympathysing witk them the Government consider them to be criminals who have blackened the fair name: of the Government. Although the refugees have been oppressed, the Government are showing sympathy to their oppressors by calling them innocent and oppressed and are callous to the really oppressed ones. It claims that the Government have an obligation towards the refugees and before attending to their needs they have no right to be magnanimous to any other oommunity. It gives a warning to the capitft lists who are indulging in luxury that one day nemesis will come down upon them with ruthless vehemence when they will lose their all and then in sorrow they will realise that the refugees were their own kith and kin. It ends was an exhortation that the editor may take is did powerful pen in aid of the refugees and free and secure relief for there. This in short, is toe throne of the letter which has been read are- read before us.

18. The learned Advocate General, however, asintains that there are several passages in to letter which indirectly, if not directly, is bring into hatred, contempt, or excite 'disaffection towards, the Government, the capitalists and the Muslims of the Indian Union. Before dealing with the individual passages Injected to by the Advocate General it is necessary to remind ourselves of the celebrated (observations of Lord Kenyon 0. J. in i?. v. -Umves (1796) 26 How. St. Tc. 629 at p. 892 wfeiefa by constant repetition in later judicial ipeocuacementa have almost become a common S. In of, namely that the Court should in every was consider the book or newspaper article assume whole, and in a fair, free and liberal spirit, .not dwelling too much upon isolated passages, or upon a strong word here or there, which may tie qualified by the context, but endeavouring to gather the general effect which the whole com--poettion would have on the minds of the public. H as, therefore, in the light of the above rule the several passages referred to by the d Advocate General.

19. The first passage objected to runs, as We are not permitted to state the indifference on tfea part of the Gjvernmant and the step-motherly witchlike) treatment meted out to us by the jew-lika esagitili bania nor do these heartless butohera care 3oruy me. We cannot invite the attention of the 'Government to the fact that we are like corpses with of shrouds and graves. It is considered that our curies man moans weaken the edifice of the Government, Today, those who sacrificed their children at the altar of freedom are taken as strangers, i, e, simooms, uncivilised, criminals, looters and ravenous Marianas, due to whose evil deeds the bands of the preset rulers, enjoying international fame are besssnwwed with blood, By allowing lakhs of human 'ileums, who are like living corpses, to roll about rest-Steady fedora their lofty palaces, and by providing starry facility to the innocent and oppressed Muslims, that Government are making penance of one Bins. 'Feat crime we have committed for which we are being punished?

It is said this is an attack on the capitalists, $ha Muslims and the Government. The learned JLdTOCate.General, however, concedes and in wrap of the decisions in Emperor v. Mani Ben 3S7 isomer. 23 : a. i. e. (so) : 1933 Bom. 65 : 84 rod. 3. 231 and Eamal Sirkar v. Emperor I. S. S. (1938) 1 cal 45S : A. I. R. (24) 1937 'cal 691 : 39 Or. l. j, 190 he could not do other, was that an attack on the capitalists does not and within the ambit of the section. Farther fit is admitted by the learned Advocate-General that Mahatmaji in his prayer speeches and the Prime Minister of India were constantly preaching restraint on the part of the refugees. It is ueeless to attempt to conceal the fact, well-known to all of us, that the refugees, who considered themselves to be the aggrieved parties, resented this laying of the fault at their door and regarded the solicitude of the authorities for Muslims as the unkindest cut of all. We are not trying to justify this attitude of the refugees but we cannot shut our eyes to the existence of this genuine feeling which may or may not have been justified. What were the refugees to do They were powerless and their impotent resentment found expression in irony such as we find in this letter. The writer points out this irony of fate and tries to enlist the support of a powerful agency, the editor of a newspaper, to take up their cause. He cries out saying : What orime have we committed This passage may abound in rhetoric and irony and may be calculated to produce sympathy in the minda of the reader but we cannot imagine that it can at all excite passions bordering on hatred, contempt or disaffection for the Muslims or the capitalists or the Government. It will be a complete negation of freedom of speech if this kind of ventilation of grievances were to be stifled.

19. The next offending passages are in terms following :

However, if today, the votaries of non-violence, by calling a tyrants an oppressed and an oppressed a tyrant deem it necessary to stage a drama about their lofty character, they may gladly do so. But for God's sake they should not give further training in shamelessness and impudence. Today we are a sore in the foot of the present ruler, and an ulcer on their chest.

The persons whom we once considered as our objects of worship, whom we worshipped in the temple of our mind, whom we gave the status of gods, for whose very ordinary trouble we beat our chests many a time, and at whose feet we, several times, secretly made offerings of our tears and sighs, consider its refugees and beggars. Our last offering by which we sacrificed our all is considered to be a joke.

We see nothing objectionable in these passages except perhaps in the use of the word 'tyrant.' These passages, to our mind, only express the depth of. exasperation that the refugees feel on being stigmatised as guilty by persons whom they always held in highest esteem and from whom they least expected such attack. All that these passages come to is that one may put up with the uncharitable behaviour of utter strangers but one finds want of charity in one's own leaders extremely galling. It is nothing^ but a rhetoric exclamation of an exasperated and disillusioned person. This is the least one could expect from such a person if his feelings were so genuinely strong as they seem to be.

20. The learned Advocate-General has taken exceptions to the next paragraph which says :

We were rendered homeless and moneyless. A large number of families are scattered. We lost our children. Dear and near ones were killed. Neither money nor home was left. We were deprived of our honour, dignity and respect. Thousands of our glrla were abducted and thus our hearts were speared. The tyrants forcibly deprived us of what we had earned in many years. The cruel hands snatched children from the laps of their parents and killed them. Id spite of all this there is a complaint against us that we are not loyal. Well, sir, you are the authority. We take it that justice administered by you is as it is administered by Bikramjit. We dare not speak out : 'Our faithfulness has been well rewarded by you'.

The learned Advocate-General contends that the truth or otherwise of the statements has no bearing on the question as to whether they are seditious, Indeed, he may well have gone further and said that the greater the truth the greater was the sedition. That may be so in strict law. But it is equally the law that an attack on the West Punjab Muslims, which obviously this is, is not exciting disaffection against a class of subjects of the Indian Union. We cannot agree with the learned Advocate General that this passage is in its context an attack on the Indian Muslims at all. Apart from this question of strict law, if half of what is said were true it is surprising that the language used was not more violent. In view of the sufferings of the West Punjab refugees, the use of the expression 'tyrant' in the context will appear to all right thinking persons as a moral endeavour in restraint. In all conscience, allowances must, in the known circumstances, be made. Further, what we ask, is the main impression sought to be given It is nothing but saying: 'We have suffered and yet we are held guilty. Such is the irony of our fate.' And this does not stand by itself, It is a step in the argument the ultimate end of which is enlisting the support and sympathy of the Government itself. It is not permissible to take isolated passages out of their context. The letter should be read as a whole, and so read, it is only an attempt to correct the attitude of the Government towards the West Punjab Hindu refugees. This liberty of speech is the least that the West Punjab Hindu refugees can legitimately claim from the National Government.

21. The learned Advocate. General also relics on the following passage further down in the letter:

So long as the Government does not pay our debt, It has no right to show magnanimity and give concessions to any other community.

It baffles up to comprehend how the Government can take exception to this passage which, to say the least, is perfectly legitimate. In the earlier part of the paragraph where this passage occurs the writer acknowledges that the Government bad brought the refugees out of the jaws of crafts and goes on to say that the Government not stop there but should go further and out justice to them. The writer insists, g or wrongly, that the Government's duty is compensate its loyal subjects and that balm discharging this duty the Government schwa not show magnanimity to any other eomrausaty,. We can see nothing objectionable in this-.

22. The last passage objected to briefs learned Advocate-General runs as follows :

Remember that justice of nature will one day appear in the shape of Mahmud Ghaznavk You swathe will weigh on the heads of your daughters, and section oft you will be sold for two pike in the Bazars of Shuatai.. It will be then that you will realize, who was yossir ami and who were aliens.

Again, we say that this method of exemplifies the danger of taking a passage hoofed of its context. This passage forms part of for 'warning to the capitalist bananas.' April from the consideration that the capitalists do mot form a definite class within the meaning of t! section, what is the implication of the impawned passage It can be summarized in one sentence by saying, ' Nemesis will come with a vengeance on you and then you will unctorsaiwl our plight.' The reference to Mahmud Gbaani is only to emphasise the vehemence of Cruel vengeance that will overtake the capitalists who according to the writer, will rather give helter to animals than to the homeless refugees. Further the passage ends with the exhortation 'After all this, will not, Mahashaji, your pen fearlessly describe the sufferings and miseries?' That again shows that the preceding passages*were intendec! to rouse the editor rather than to excite feelings of hatred, contempt or disaffection in the public mind.

23. We have very carefully read the let the several times. We must confess that we to failed to appreciate how this letter asking an editor to plead with the Government to gift succour to the distressed refugees can by any stretch of imagination be regarded as exciting a feeling of hatred, contempt or disaffection tonsured the Government. Indeed, the letter itself acknowledges that the Government had saved the refugees from the jaws of death but pleads that they should go further and mete out justice to the refugees by making good their loss. II is true that the letter is at place3 rhetoric and flowery or even ironioal in language but it pears to us to be singularly innocent m rateni. The letter on the face of it purports to give vent to 'what the writer holds to be the genuine grievances of refugees and to draw the attention of the Government to what the writer considers to be their callous indifference and inaction in the matter of redressing the same. Anonrefagea reading this letter may, if he is callous, feel a certain amount of amusement and regard it merely as a grousing on the part of a refugee or may if he is susceptible to sentiment, feel a certain amount of sympathy for the refugees. To a refugee this letter will only bring back an show of his own cries and will hardly add to the .sense of wrong already nurtured by him. At the Tyros, therefore, this letter may conceivably .generate and excite a feeling of resentment and disapprobation against the Government in the minds of a refugee or a sympathetic non-refugee 'who may happen to read this letter. Such resentment and disapprobation cannot possibly, as far -as we can apprehend, resemble or be akin to that deeper' and more intense passion which may he expressed by the terms, hatred, contempt or disaffection. The explanations to the section clearly contemplate and indicate that one may strongly criticise without being hateful, may severely comment without being contemptuous -or may openly disapprove without being disaffection ate. To our mind, this letter comes well within the explanations to the section and cannot possibly be regarded as an attempt to bring *he Government to hatred, contempt or disaffection within the meaning of s. i (1) (d). It will indeed be an evil day for this country if s. 4 (1) Ad could be made use of for stifling legitimate comments or criticisms or for preventing the sanitation of genuinely felt grievances on the .pretext that they inevitably give rise to some resentment or disapprobation. That calamity this Court will at all times be vigilant to prevent. Beading the letter as a whole it is nothing but an appeal to the Government for relief and a ventilation of what may well be regarded as a genuine grievance and we-can find no justification for the attempt to stigmatise it as Sedition. On the other hand, if the sentiments set forth in this letter be not genuine and be only the outpourings of an unbalanced mind we see no wisdom in taking serious notice of it and thereby giving it an importance it does not merit.

24. We now pass on to the news item 'Mariana Azad are Kidwai Working Committee se walk out argue.' The first thing to bear in mint! is that it is a news item, Indeed it is described in the order itself as a news item. The only part of it to which exception has been taken as under the heading 'Confidence lost.' The passage is this:

Accordingly the Hindu and Sikh members said in %he meeting of the Working Committee that the Muslims could not be trusted any longer as they were adopting a policy of double dealing and that they should, therefore, either quit the League or they would fee turned out of the Congress,

It is quite clear that this article purports to be a report of a meeting of the Working Committee. We have an affidavit of the correspondent as to the oiroumstancea in which he got this information. There is no suggestion that this report does not correctly represent the proceedings of the Working Committee. The position of the Working Committee vis a vis the National Government is known to be intimate. The question of the loyalty of the Indian Muslims to the Indian Dominion was the burning question of the day and was exercising the public mind. In fact one instance of such alleged double dealing is given in the report itself. The decision of the Working Committee was being anxiously awaited by the public. A newspaper reporter will not be worth the salt if he failed to send a report of that Working Committee meeting to his newspaper. Further, could this report arouse more hatred or contempt than had already been in the public mind as a consequence of the several important instances that were known? Indeed, in this very issue of the newspaper we find a report of an eminent Indian Muslim warning his compatriots to demonstrate their loyalty to India in respect of the Hyderabad issue. If anything this report may be a slur on the Hindu and Sikh members of the Working Committee who doubted the loyalty of the Indian Muslims. The reporter says that such attitude of the Hindu and Sikh members was repudiated by Maulana Azad and Kidwai. It is, therefore, nothing more than what it purports to be, namely, a faithful report. You cannot shut out news in which the public are interested. Nothing that has been said by the learned Advocate-General at all conVincea us as to the impropriety of this news item. Far less does it, to our mind, come within the section we are considering.

25. Before we conclude, we desire to state that these proceedings clearly bring home to as that the official mind still moves in old groove of suspicion and distrust. The change in the situation in the country and the new atop do not appear in the least to have brought about any change in the outlook of the executive and the old vain susceptibilities still linger in their mind. Oar newly won freedom has not broadened their vision and they are still prone to stifle legitimate comments and oriticisms. The outpourings of aggrieved persons who pray for redress instead of being appeased are sought to be smothered with the handy weapon of the law of sedition. We do feel that the law of sedition in our country should no longer be left in the nebulous state in which it is by reason of the judicial deoisiona based on the true but nevertheless narrow prinoiple of construction. It is desirable that the safeguards let in by the Federal Court in its judgment in Niharendu Butt Mujumdar's case A. I. R. (29) 1942 P. 0. 22 : 43 Or. L. J. G04 should be incorporated in oar law of sedition and our Press Act, for these very proceedings clearly demonstrate, to our mind, that people still require protection against the EJxeoutive Government even though it is our National Government.

26. The result is that we accede to this petition and set aside the order of forfeiture with costs which we assess at Rs. 200.


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