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Manubhai Tribhovandas Patel and ors. Vs. State of Guiarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1972CriLJ388; (1971)GLR968
AppellantManubhai Tribhovandas Patel and ors.
RespondentState of Guiarat and anr.
Cases ReferredR. M. D. Chamarbauewala v. Union of India
Excerpt:
- - (1) on receipt of the application the special bench shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained seditious or other matter of such a nature as is referred to in sub-section (1) of section 99-a, set aside the order of forfeiture. prior restraint on freedom of speech and expression is per se unreasonable save in exceptional cases such as section 144 of the code of criminal procedure vide madhu limaye v. union of india [1971]2scr446 .even if prior restraint may not be regarded as per se amounting to unreasonable restriction on the fundamental right of free speech and expression, the restriction imposed by section 99-a is unreasonable both from the substantive as well as the.....p.n. bhagawati, c.j.1. the controversy in these matters relates to the validity of an order dated 16th june. 1971 made by the government of gujarat under section 99-a of the code of criminal procedure in respect of a book in the gujarati language instituted 'extracts from mao-tse-tung'. this book contains passages extracted from the speeches delivered at different times by mao-tse-tune who is the acknowledged leader of chinese communist thought and at ore-sent the chairman of the peonies republic of china, it is printed by purushottam murlidhar brahmbhatt. jayshree mudran and published by manubhai tribhovandas patel. secretary of shri dinker mehta shasti poorti lokavat jnankendra trust. the government of guiarat, by an order dated 16th june. 1971 made in exercise of the power conferred.....
Judgment:

P.N. Bhagawati, C.J.

1. The controversy in these matters relates to the validity of an order dated 16th June. 1971 made by the Government of Gujarat under Section 99-A of the Code of Criminal Procedure in respect of a book in the Gujarati language instituted 'Extracts from Mao-Tse-Tung'. This book contains passages extracted from the speeches delivered at different times by Mao-Tse-Tune who is the acknowledged leader of Chinese Communist thought and at ore-sent the Chairman of the Peonies Republic of China, It is printed by Purushottam Murlidhar Brahmbhatt. Jayshree Mudran and published by Manubhai Tribhovandas Patel. Secretary of Shri Dinker Mehta Shasti Poorti Lokavat Jnankendra Trust. The Government of Guiarat, by an order dated 16th June. 1971 made in exercise of the power conferred under Section 99-A of the Code of Criminal Procedure declared every copy of this book to be forfeited to Government on the ground that it contained seditious matter, the publication of which is punishable under Section 124A of the Indian Penal Code. The full text of the order is material and it was in the following terms:

NOTIFICATION.

Government of Gujarat.

Home Department (Special).

Sachivalava, Gandhinagar.

Dated the 16th June 1971.

Code of Criminal Procedure, 1898.

No. GHG/85/SB, I/MIS. 1170/11486 : - WHEREAS the book captioned 'Mao Tse Tungmanthi Avatarano' printed by Shri Purushottam Murlidhar Brahmbhatt. Jayashri Mudrana, 61. Avanika Park. Khanpur. Ahmedabad-1. and published by Shri Manubhai Tribhovandas Patel. Secretary. Shri Dinkar Mehta Shasti Pootri Lokayat Jnankendra Trust. Prarthana Samai Raikhad Char Rasta. Ahmedabad-1. contains views of Mao Tse Tung which are full of hatred and contempt for all persons who do not subscribe to the communist ideology and also contains Mao-Tse Tung's advice on how to overthrow a non-communist Government by violent revolution and how to establish a communist Government by resort to armed revolution:

AND WHEREAS the intention of the printer and publisher of the said book, as is clear from the preface to that book. is that the views and advice of Mao-Tse-Tung contained in the said book should serve as a guide to understand the principles and practice of communism and thereby the printer and publisher have attempted to bring into hatred or contempt and to excite feelings of disaffection towards the non-communist Government established by law in India; AND WHEREAS it appears to the Government of Guiarat that the said book contains seditious matter, the important passages relating to which are reproduced in the Schedule annexed hereto which is intended to promote feelings of enmity and hatred between different classes of citizens and the publication of which is punishable under Section 124A of the Indian Penal Code.

NOW THEREFORE, in exercise of the powers conferred by Section 99-A of the Criminal Procedure Code, 1898 (V of 1898) in its application to the State of Gujarat, the Government of Gujarat hereby declares every copy of the aforesaid book to be forfeited to Government.

The Schedule annexed to the order set out the objectionable passages which were regarded by the State Government as seditious meriting punishment under Section 124A of the Indian Penal Code. It is not necessary to reproduce these passages here : we shall have occasion to refer to them in detail when we deal with the arguments advanced on behalf of the petitioners. It is sufficient to observe at this stage that though the book contains 184 passages from the speeches of Mao-Tse-Tung. the State Government could pick out of them only six for the purpose of justifying the order forfeiting the book.

2. Now the order made by the State Government was published in the Official Gazette as required by Section 99-A but it was not served on Manubhai Tribhovandas Patel though he was the publisher of the book. He came to know about the making of the order only when he read reports about the same in several newspapers and particularly the issue of the Times of India dated 20th June. 1971, He thereupon filed Special Criminal Application No. 24 of 1971 challenging the validity of the order on various grounds which included inter alia challenge to the constitutional validity of Section 99-A on the ground of infraction of Article 19(1)(a) of the Constitution. One Chandubhai Hathibhai Patel, who is an active communist, having an interest in the circulation of the book also made an application to this Court, being miscellaneous Criminal Application No. 331 of 1971 under Section 99-B for setting aside the order of the State Government on the ground that the issue of the book did not contain any seditious matter of such a nature as is referred to in Sub-section (1) of Section 99-A. Similar application under Section 99-B was also made by one Dinker K. Mehta, one of the trustees of Shri Dinkar Mehta Shasti Poorti Lokayat Jnankendra Trust and this application was numbered Miscellaneous Criminal Application No. 332 of 1971. These last two applications being applications under Section 99-B were liable to be heard by a Special Bench of three Judges while the first application being one under Article 226 could be heard by a Division Bench consisting of two Judges but since all the three applications were directed against the same order of the State Government and involved common points for determination, an oral application was made to me that the first application should also be heard by the Special Bench of three Judges along with the other two applications and this application being fair and reasonable, it was granted by me. That is how all these three applications have now come before our Special Bench.

3. Before we set out the grounds of challenge against the validity of the impugned order made by the State Government, it would be convenient at this stage to refer to the relevant provisions of law which bear on the controversy between the parties Sections 99-A to 99-C form a group of Sections introduced in the Code of Criminal Procedure by the Press Law Repeal and Amendment Act, 1922. Section 99-A was amended in its application to the former State of Bombay by Bombay Act 18 of 1955 and omitting portions immaterial, it reads as follows in its amended form:

99-A. (1) Where -

(a) any newspaper, or book as defined in the Press and Registration of Books Act. 1867, or

(b) any document.

wherever printed, appears to the State Government to contain... any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under Section 124A or Section 153A or Section 295A of the Indian Penal Code, the State Government may by notification in the Official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government and thereupon any police-officer may seize the same wherever found in India and any Magistrate may by warrant authorize any police-officer not below the rank of sub-Inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonable suspected to be.

X X X X X X X X

Section 99-B provides for judicial review of the order of forfeiture in these terms:

99-B. any person having any interest in any newspaper, book or other document, in respect of which an order of forfeiture has been made under Section 99-A. may within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper. or the book or other document, in respect of which the order was made, did contain any seditious or other matter of such a nature as is referred to in Sub-section (1) or Section 99-A.

Every such application is required by Section 99-C to be heard and determined by a Special Bench of the High Court composed of three Judges. Now a question may arise as to which is the High Court having jurisdiction to entertain such an application : Does such an application lie only in that High Court which has jurisdiction over the area comprised in the territorial limits of the State Government which passes the order of forfeiture or, can any other High Court within whose territorial jurisdiction any part of the cause of action arises for challenging the order of forfeiture also entertain such an application? There was fortunately no controversy between the parties on this question. It was common ground that an application under Section 99-B would lie only in that High Court which exercises jurisdiction in relation to the area of the State Government which passes the order of forfeiture. That was the view taken by the Bombay High Court in Gopal v. Union of India : AIR1971Bom56 and it was accepted as the correct view by the parties in the present case. What shall be the power of the High Court in dealing with an application under Section 99-B is to be found in Section 99-D. That section provides in Sub-section (1):

99-D. (1) On receipt of the application the Special Bench shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained seditious or other matter of such a nature as is referred to in Sub-section (1) of Section 99-A, set aside the order of forfeiture.

Section 99-E is not material as it is confined only to a case where an order of forfeiture is made in respect of a newspaper. The procedure of the High Court in case of an application under Section 99-B is to be regulated by Rules made by the High Court under Section 99-F. We have such Rules made by the Bombay High Court being Rules Nos. 1 to 12 in Chapter XXVII which are continued in their application to the High Court of Gujarat on the bifurcation of the State of Bombay. Section 99-G excludes the jurisdiction of the Civil Courts by providing that no order passed or action taken under Section 99-A shall be called in question in any Court otherwise than in accordance with the provisions of Section 99-B.

4. Having referred to the relevant provisions of the Code of Criminal Procedure, we may now reproduce the grounds on which the petitioners in these applications challenged the validity of the impugned order made by the State Government. These grounds were:

(A) Section 99-A empowers the State Government to prohibit circulation of a newspaper, book or document by forfeiting every copy of it throughout India. This constitutes prior restraint on freedom of speech and expression Guaranteed under Article 19(1)(a), for freedom of speech and expression includes freedom to circulate views and ideas by books, magazines, leaflets and other media of mass communication. Prior restraint on freedom of speech and expression is per se unreasonable save in exceptional cases such as Section 144 of the Code of Criminal Procedure vide Madhu Limaye v. Sub-Divisional Magistrate : 1971CriLJ1720 and Pre-Censor-ship of Films' vide : K.A. Abbas v. Union of India : [1971]2SCR446 . Even if prior restraint may not be regarded as per se amounting to unreasonable restriction on the fundamental right of free speech and expression, the restriction imposed by Section 99-A is unreasonable both from the substantive as well as the procedural aspects and Article 19(2) which permits reasonable restrictions to be imposed on freedom of speech and expression inter alia in the interests of the security of the State and public order does not therefore, save Section 99-A from attack under Article 19(1)(a).

(B) An order under Section 99-A seriously interferes with the fundamental right of the publisher under Article 19(1)(a) and no such interference with the fundamental right can be tolerated unless an opportunity were afforded to the publisher to show cause before the making of such an order. The Court must therefore, read in Section 99-A a requirement that no order under that Section shall be made without giving an opportunity to the publisher at any rate, if not to every person affected to show cause against the making of such an order. The impugned order in the present case was made by the State Government without giving an opportunity to show cause to the publisher who is the petitioner in Special Criminal Application No. 24 of 1971 and it must therefore, be held to be invalid.

(C) Section 99-A requires the State Government to state the grounds for its opinion in the order made by it. The grounds would include not only specification of the matters regarded as objection-able by the State Government but also the reasons for regarding them as objectionable. The impugned order was defective in that it did not state the grounds for the opinion entertained by the State Government that the book contained objectionable matter. There were two defects from which it suffered:

(i) The ground given in the first paragraph of the impugned order, namely. that the book contains views of Mao-Tse-Tung which are full of hatred and contempt for all persons who do not subscribe to the Communist ideology, was extraneous to Section 124A of the Indian Penal Code under which the objected matter was regarded by the State Government to be punishable.

(ii) The words 'important passages' in the penultimate paragraph of the impugned order showed that according to the State Government there were other Passages, besides those set out in the Schedule, which were seditious in nature and punishable under Section 124A of the Indian Penal Code and they were taken into account by the State Government in making the impugned order but these passages, though forming Dart of the grounds for entertaining the opinion that the book contained objectionable matter, were not set out in the impugned order and the statement of the grounds was incomplete.

(D) The objected matters set out in the Schedule on which the impugned order was based were not seditious or of such a nature as would make their publication punishable under Section 124A of the Indian Penal Code and the book did not, therefore, contain any seditious or other matter of such a nature as is referred to in Sub-section (1) of Section 99A. We are relieved of the necessity of deciding Grounds (A). (B) and (C) because, in our view. Ground (D) is well-founded and on that ground alone the impugned order made by the State Government must be quashed.

5. The question which arises for consideration under Ground (D) is whether the objected matters set out in the Schedule can be said to be seditious, that is to say, of such a nature that their publication would be punishable under Section 124A of the Indian Penal Code. The determination of this question depends on the true scope and ambit of Section 124A which defines the well-known offence of sedition with which many in this country were only too familiar during the days of British rule. The offence of sedition is the resultant of the balancing of two contending forces, namely, freedom and security. Freedom and security in their pure form are antagonistic poles : one pole represents the interest of the individual in being afforded the maximum right of self-assertion free from Governmental and other interference while the other represents the interest of the politically organized society in its self-preservation. It is impossible to extend to either of them absolute protection for as observed by Mr. Justice Frankfurter. 'absolute rules would inevitably lead to absolute exceptions and such exceptions would eventually corrode the rules'. It is now a generally accepted postulate that freedom of speech and expression which includes within its fold freedom of propagation of ideas lies at the foundation of all democratic organizations, for without free political discussion, no public education so essential for the proper functioning of the processes of popular Government is possible. It is the matrix, the indispensable condition, of nearly every other form of freedom and because it has the capacity of unfolding the truth, it is indispensable to the democratic process. Now freedom of such amplitude might involve risks of abuse but as pointed out by Patanjali Shastri J., in Romesh Thapper v. State of Madras : 1950CriLJ1514 'the framers of the Constitution may well have reflected, with Madison who was 'the leading spirit in the preparation of the first Amendment of the Federal Constitution' that 'it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits';' (quoted in Near v. Minnesotta (1930) 283 US 697. While conceding the imperative necessity of freedom of speech and expression in its full width and amplitude, it is necessary at the same time to remember that the first and most fundamental duty, of every Government is the preservation of order, since order is a condition precedent to all civilization and the advance of human happiness. The security of the State and organized Government are the very foundation of freedom of speech and expression which maintains the opportunity for free political discussion to the end that Government may be responsive to the will of the people and it is. therefore, essential that the end should not be lost sight of in an over-emphasis of the means. The protection of freedom, of speech and expression should not be carried, to an extent where it may be permitted to disturb law and order or create public disorder with a view to subverting Government established by law. It is, therefore, necessary to strike a proper balance between the competing claims of freedom of speech and expression on the one hand and public order and security of the State on the other. This balance has been found by the Legislature in the enactment of Section 124A which defines the offence of sedition for our country.

6. The interpretation of Section 124A has over the years gone through various vicissitudes and changes. The first case where it came up for consideration was the famous Bangobasi Case; Queen-Empress v. Jogendra Chander (1892) ILR 19 Cal 35. The Section as it was in force at that time was the unamended Section which did not contain the words 'brines or attempts to brine into hatred or contempt' and had only one composite explanation instead of the present three. The words of the Section which, therefore, fall for construction were : 'Whoever... excites or attempts to excite feelings of disaffection to the Government established by law.' Sir Comer Petheram. C. J. in his charge to the jury save a very wide interpretation to the word 'disaffection'. He interpreted it to mean 'contrary to affection' and observed that it would be sufficient for the purposes of the Section that the words used are calculated to excite feelings of ill-will against the Government. Strachey, J. gave a further expansion to this meaning in Queen Empress v. Bal Ganeadhar Tilak (1898) ILR 22 Bom 112, when he said : 'I agree with Sir Comer Petheram in the Bangobasi case that disaffection means simply the absence of affection' which he explained by saving : 'It means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Govt. 'Dislovalty' is perhaps the best general term, comprehending every possible form of bad feeling to the Government'. He proceeded to observe, interpreting the Section : 'The offence consits 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... even if he ('that is the accused') neither excited nor intended to excite any rebellion or outbreak of 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'. This charge to the jury was expressly approved by the Judicial Committee of the Privy Council while dismissing the application preferred by Bal Gansadhar Tilak for special leave to appeal against his conviction by the Bombay High Court. This interpretation save a very wide sweep to Section 124A and made it a formidable Section. It was obviously an interpretation calculated to reserve power in the British Government to prosecute their political opponents and stifle opposition to the British rule. It reflected the anxiety of the British to retain their strangle-hold on this country and continue their, exploitation by crushing all forms of opposition by making it penal even to excite feelings of ill-will against the Government, as if by punishing words or deeds calculated to produce ill-will, they could command goodwill from a subject people.

7. This broad and sweeping interpretation of Section 124A held the field until 1942. when in the leading case of Niharendu Dutt Maiumdar v. Emperor AIR 1942 F. C. 22. Sir Maurice Gwyer. C. J., an eminent British Judge who presided over the Federal Court of India in its early years, reviewed the position and attempted to restrict the scope of the Section by interpreting it according to the 'external standard' applied by Judges in England. He recognised the great change that had taken place in the concept of Government since the days of enactment of the Section and since its interpretation in Bal Gangadhar Tilak's case (1898) ILR 22 Bom 112. He quoted with approval the following passage from the speech of Lord Summer in Bowman v. Secular Society Ltd. (1917) AC 406 : 'The words as well as the acts which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious. and this is not because the law is weaker or has changed. but because. the times having changed, society is stronger than before' and pointed out that 'many judicial decisions in particular cases which were no doubt correct at the time when they were given may well be inapplicable to the circumstances of to-day.' He felt that in the changed circumstances of the country 'bad feeling' or 'ill-will' towards the Government could not be regarded as the basis of sedition. He pointed out that the language of Section 124A must be interpreted in the light of the broad principles underlying the concept of sedition as formulated in English law and referring to the classic statement of these general principles in Mr. Justice Fitzgerald's charge to the jury in Rex v. Sullivam (1868) 11 Cox. C. C. 54. he concluded by saving that the offence of sedition 'is the answer of the State to those who. for the purpose of attacking or subverting it seek... to disturb its tranquillity, to create public disturbance and to promote disorder, or who incite others to do so. Words, deeds or writings constitute sedition, if they have this intention or this tendency : and it is easy to see why they may also constitute 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 cease to be obeyed and no respect is felt any longer for them, only anarchy can follow. Public 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 such as to satisfy reasonable men that that is their intention or tendency. 'The Federal Court thus emphasized the need for dynamic interpretation of the section appropriate to the modern concept of Government and accepted a narrower interpretation than the one given in the earlier cases by laying down that unless the acts or words have a tendency to create public disorder, they cannot be considered seditious, as sedition is essentially an offence against public order.

8. But this progressive and enlightened view taken by the Federal Court was overruled by the Judicial Committee of the Privy Council in King Emperor v. Sadashiv Narayan 74. Ind App 89 : AIR 1947 PC 82. The Judicial Committee held that incitement to disorder is not an essential element of the offence of sedition but it is enough to excite or attempt to excite feelings of disaffection, that is, ill-will against the Government. They quoted with approval the relevant passage from Mr. Justice Strachev's charge to the jury in Bal Gangadhar Tilak's case, (1898) ILR 22 Bom 112 a passage from which we have also Quoted earlier, and observed that they would adopt the language of Mr. Justice Strachev 'as exactly expressing their view in the present case.'

9. The result was that when our Constitution was enacted there were two conflicting interpretations of Section 124A before the Indian Courts. One was the conservative interpretation placed by the Privy Council which gave wide power to the Government to curb free speech and expression even if it was calculated merely to produce bad feelings or feelings of ill-will against the Government without any disturbance of public order : the other was the liberal interpretation accepted by the Federal Court which limited the right of the Government to interfere with free speech and expression and permitted its free and unrestricted exercise so long as it did not incite public disorder or have the intention or tendency to do so. The Supreme Court was called upon to consider in Kedar Nath v. State of Bihar : AIR1962SC955 , which of these rival interpretations must be accepted as the correct interpretation, for on the determination of this question depended the validity of Section 124A, If the interpretation placed by the Privy Council were the correct interpretation. Section 124A would be clearly ultra vires as offending Article 19(1)(a) since on such interpretation it would be outside the permissible limits of legislative restrictions which may be imposed on the fundamental right of free speech and expression under Article 19(1)(a). It would not be possible to say on such interpretation that the Section has been enacted 'in the interest of public order' : the restrictions imposed by the section would go far beyond what is required 'in the interest of public order.' The interpretation approved by the Federal Court would on the other hand, make the section valid, for on that interpretation there would be direct nexus between the restrictions imposed by the Section and interest of public order and the Section would be saved by Article 19(1)(a). The Supreme Court, after an exhaustive review of the case law on the subject. accepted the interpretation placed by the Federal Court and held Section 124A to be valid. Sinha C. J-speaking on behalf of the Supreme Court gave the following reasons for preferring the interpretation accepted by the Federal Court:.If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of Clause (2) of Article 19. Sections 124A and 505 are clearly violative of Article 19(1)(a) of the Constitution. But then we have to see how far the saving clauses, namely. Clause (2) of Article 19 protects the sections aforsaid. Now as already pointed out. in terms of the amended Clause (2), quoted above, the expression in the interest of...public order' are words of great amplitude and are much more comprehensive than the expression 'for the maintenance of as observed by this Court in the case of Virendra v. State of Punjab : [1958]1SCR308 . any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with Clause (2). It is well-settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations make it reasonably clear that the sections aim at rendering penal only such activities as would be intended or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress vide (1) Bengal Immunity Co. Ltd. v. State of Bihar : [1955]2SCR603 and (2) R. M. D. Chamarbauewala v. Union of India : [1957]1SCR930 . Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order. or incitement to violence.

It must, therefore, be now taken as well-settled that words, deeds or writings constitute sedition punishable under Section 124A only if they incite violence or disturb law and order or create public disorder or have the intention or tendency to do so. It is in the light of this interpretation of Section 124A that we have to determine whether the objected passages constitute seditious matter punishable under Section 124A.

10. Now if we look at the book 'Extracts from Mao-Tse-Tuns'. it is clear that it contains 184 passages from different speeches given by Mao-Tse-Tuns at different times between 1926 and 1957. The index shows that these passages deal with a wide variety of topics and they reflect the principles and practice of Communism in relation to these topics as enunciated by Mao-Tse-Tuns. The thoughts of Mao-Tse-Tung as expressed in these passages are. as the Note of the publisher makes it clear, presented to the public with a view that public may be able to study the principles and practice of Communism. These passages are intended to acquiant the reader with the principles and practice of Communism as understood and explained by Mao-Tse-Tuns in various speeches delivered by him to the Chinese people over a period of about thirty years. They are not exhortations to our public to resort to violence or create public disorder with a view to subverting Government by law established in India. There is not a word in these passages which even remotely suggests that people should overthrow lawfully established Government in India by force or violence. These passages expound the philosophy of Mao-Tse-Tung with a view to its academic study and they cannot possibly by any stretch of language be regarded as seditious. To condemn them as seditious would be to close the doors of knowledge to ostracise a philosphy because it challenges values cherishable and held dear by our present day society and holds up for acceptance a new way of life vastly different from that to which pur people are presently accustomed. It is not for the Government of the day nor for the Judges presiding over our Courts to decide what doctrine of philosophy is good for our people. It is for the people to choose what is best for them and in order that they may be able to make a wise and intelligent choice, free propagation of ideas is an essential requisite. The ideas propagated may be unorthodox and unconventional : they may disturb the complacency of a handful minority or they may challenge deep seated, sacred beliefs and question the most fundamental postulates of our social, political or economic thinking. That should be no ground for anxiety or apprehension, particularly in a country like ours which has always believed in the pursuit of truth and in its unending search for truth, never hesitated to receive new ideas and absorb them, if found acceptable. There can indeed be no real freedom unless thought is free and unchecked, not free thought for those who agree with us but freedom for the thought we hate. It is only from clash of ideas that truth can emerge, for the best test of truth is the power of the thought to get itself accepted in the competition of the market. If, therefore, the publisher of this forfeited books wants to propagate the philosophy of Communism as expounded by Mao-Tse-Tung amongst the people, there is no reason why he should not be free to do so. Let the people decide what doctrine or philosophy they wish to adopt. We have great faith in the commonsense of our people and we have no doubt that with the sound unerring instinct which has guided them over the years, our people will choose a doctrine or philosophy true to their genius and reject the rest. If the people want to adopt the philosophy of Communism as expounded by Mao-Tse-Tung. confiscation of a book like this is not going to stop them from doing so. The reasons for their choice would be much deeper and if the Government wants to repel the onslaught of Communist ideology, it is to an elimination of these reasons that the Government may well address itself rather than proscribe a book like this which propagates the principles and practice of Communism as expounded by one of its chief exponents, with a view to their academic study by the people. We may make it clear that, when we say this, we do not wish to suggest, that if any words or writings incite violence or disturb law and order or create public disorder with a view to overthrowing Government established by law, the State would have no power to forfeit a book containing such words or writings in order to prevent disturbance of public tranquillity or public order. The State has this undoubted power but we are of the view that the objected passages are not of a kind which would attract the exercise of such power. The objected passaees which constitute but only six out of 184 passages to be found in the forfeited book do not. in our opinion, constitute seditious matter punishable under Section 124A and the impugned order made by the State Government forfeiting the book cannot, therefore. be sustained under Section 99-A.

11. We, therefore, allow Miscellaneous Criminal Applications Nos. 331 and 332 of 1971 and make the rule in those applications absolute by quashing and setting aside the impugned order made by the State Government forfeiting the book 'Extracts from Mao-Tse-Tung'. Since we are quashing and setting aside the impugned order in these Miscellaneous Criminal Applications, it is not necessary for us to make any order on Special Criminal Application No. 24 of 1971. The State Government will pay the costs of Miscellaneous Criminal Application Nos. 331 and 332 of 1971 to the petitioner in each of those applications. There will be no order as to costs in Special Criminal Application No. 24 of 1971.


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