1. The petitioner is the editor and publisher of 'Dravida Nadu', a Tamil Weekly which is printed at and issued from Kancheepuram. He seeks to set aside the order of the Provincial Government, dated 25th May, 1949, directing him to deposit with the District Magistrate, Chingleput, on or before the 25th June, 1949, security to the amount of Rs. 3,000. The order was passed in exercise of the powers conferred by Section 7(3) of the Indian Press (Emergency Powers) Act, 1931, on the ground that the issues of the petitioner's journal dated 4th April, 1948
If in spite of belonging to the same group and kinship being claimed on the basis of recognising the same flag and belonging to the same party, if in spite of worthy persons praising him as the Gandhi of Tamilnad, it should happen that the intrigue and the amazing enmity and communal frenzy of a selfish group will keep on attacking him, then we ask in What way is the Congress Ramaswarm in any far better position than the Dravida Ramaswami.
2. The writer laments that enmity should have been stirred up even against a person like Ramaswami Reddiar who delighted and felt proud in calling all Brahmins as well as Non-Brahmins as the sons of India.
3. After reading the article in its entirety, we are unable to follow the argument of the learned Advocate-General that there is in it an attack on the entire community of Brahmins, whether they belonged to the Congress legislature Party or not He tried to maintain his contention by arguing that the Brahmin members of the Congress Legislature were representatives of that community. It is impossible for us to accept this argument, because it is opposed to the facts. There are no separate constituencies for Brahmins and the Congress party does not set up any candidates as representatives of any community. All the, Congress members of the Legislature were elected on a common ticket as professing the ideals of the Congress. Simply because some of the members happened to belong to one community, it will be hardly accurate to say that they are there as representatives of their community. 'It is a matter of common knowledge that on some matters the elected members of the Brahmin community may be holding opinions on certain social matters opposed to a large section of the Brahmin community. We fail to see in the article any attack on the Brahmin community as such. Again and again there is reference to a group within the Congress party which was determined to oust Ramaswami Reddiar from the leadership, because he would not be of assistance to their selfish ends. It may be that this group is according to the writer composed of Brahmins. But it is difficult to hold that on this ground the article would tend directly or indirectly to promote enmity and hatred between the Brahmins and the Non-Brahmins in general.
4. The second article is even longer than the first, though the extract appended to the Government Order is confined to the last few paragraphs. It is a dissertation on communalism. The learned Advocate-General very properly conceded that 'the major portion of the article, particularly in the beginning is in no way offensive. A few passages will suffice to show the trend of the article:
We are forty crores of human beings--but we got divided into four thousand castes, got split and became ruined. We quarrelled among ourselves saying 'your caste is high; my community is superior; you are inferior; you belong to low caste' and became ruined. The foreigner took. advantage of this. So long as this wretched caste difference exists in this country, the country will not improve.
Only on account of the useless caste difference did our country remain as a slave under the white man all these days.
Tamilians must cast off caste difference completely.
Only one caste...Only one God...There should be unity among us. There should be no communalism.
5. The writer then traces the fight for social justice and says that the word 'communalist' is being used to decry persons working for the cause of social justice. He refers to the fact that in Hindu Society the vast majority are Non-Brahmins and a minority are Brahmins, but that the majority were treating the minority as members of a superior caste according to the authority of the Shastras and according to the customs and manners and that on, account of this situation the majority did not get equal rights and facilities in educational, industrial, economical, political, religious and other fields, whereas the minority community, namely, the Brahmins have made great advance in all the fields. The Brahmins who thought that the demand for communal justice would lead to the undermining of their power styled the persons who demanded justice as communalists. So the writer says and he develops that idea giving extracts from other newspapers like 'Dinasari' and 'Viduthalai'. The writer next pleads for destroying the system which has for the last several thousands of years spread and struck root and has rendered the majority community 'born slaves' and 'walking corpses'. It is here that he uses the word 'Parpaneeyam' translated as 'Brahmanism' He hastens to assure that he and those who hold opinions similar to him have no hatred against the Brahmins and they are opposing only the system, namely, 'Brahmanism' because it is on account of this, several troubles have arisen in the body politic. Strong language is used to portray the evils of Brahmanism. The following are typical passages:
As a result of Parpaneeyam, the big Dravida community lies broken and scattered (the members of it) have become born slaves, talking dumb persons and walking corpses. Devoid of the feeling of sensibility, it (the Dravida community) has become a plumpy and insignificant being. Those who have studied the medical science say that if the father has syphilis, the child that is born will; become blind. How can a blind infant know the delightful sight of the Kuvalayam (white Indian water-lily)? Likewise, the Dravida community is afflicted by the syphilis called Parpaneeyam.
6. The concluding portion of the article indicates how the system can be destroyed.. It can be destroyed only if there is unity, discipline, courage and self-respect in the majority community. The writer asserts that no sensible person can come forward to support Parpaneeyam by giving reasons. 'What is called Parpaneeyam is a system which like Brittanism must be destroyed.' Finally there is an exhortation not to be afraid of abuse by interested persons. There is a reference to Mahatmaji's death, and the article ends with the following words:
When a great man has given up his life for the sake of truth, what if we lose ordinary fame and position. It is no loss. The country will get deliverance.
7. On an application like this the Court is not concerned with the tenability of the opinions expressed by the writer of the offending article. In all controversial matters, there is bound to be two opposing opinions and it is not the province of the Court to examine the soundness or otherwise of the reasons which the writer may give in support of a particular view. The question--and the only question--is to find out if there is anything in the article which tends directly or indirectly to promote feelings of enmity and hatred between different classes. The learned Advocate-General conceded that if instead of the word Parpaneeyam (Brahmanism} the writer had used the expression 'caste system', then the article would not come within the scope of Section 4(1)(h) of the Act. But he contends that the reference to the system as Brahmanism brings it within the mischief of the enactment. Undoubtedly the writer proceeds on a division of the community into two-groups, the minority group of Brahmins and the majority group of Non-Brahmins, and though in the beginning of the article, there is a reference to innumerable castes and the desirability of having only one caste, in the last portion of the article, the antithesis is between the Brahmins on the one side and the members of the other castes on the other side. But what we think, on a reading of the entire article, is that he is denouncing the system, whether it is called caste system or Brahmanism. which has led to the superior position in society of the Brahmins. Nowhere in the article does the writer say that the Brahmins of the present day have actually done anything. His complaint is that the system 'has in the last several thousands of years' spread and struck root. He expressly says that he has no hatred against the Brahmins as individuals and states in the clearest of terms in more than one place that it is the system which should be destroyed. There is no incitement anywhere of the Non-Brahmins to act in any inimical way or to inspire them with hatred against the Brahmins. As one of us put it from the Bench during the course: of the arguments, according to the writer the only way of destroying the system is for the majority community to cast off their inferiority complex and to cultivate unity, discipline and self-respect. Except the passage which we have already cited, there are no other passages in which the language is extravagant and violent.
8. When a writer sets out to ventilate the grievances of a class or community there is ex ncessiti a likelihood of criticising adversely the action of the class or community which is alleged to have taken an unfair advantage. In all such cases it would be wrong to say that a writing which ventilates the grievances of a partie cular class or community would fall within the mischief of the enactment. Dealing; with the provisions of the Indian Press Act, 1910 and referring to explanation 2 to Section 4(1) of that Act, their Lordships of the Judicial Committee in Besant v. Advocate-General, Madras (1919) 37 M.L.J. 139 : L.R. 46 IndAp 176 : I.L.R. 43 Mad. 146 (P.C.), observed as follows:
The balancing of important political considerations which is effected by adding Explanation 2 to the enacting words, which are found in the earlier part of the section has its analogy in Sections 124-A and 153-A of the Indian Penal Code. The language is not precisely the same, but there is the same delicate balancing of two important public considerations, the undesirability of anything tending to excite sedition or to excite strife between classes and the undesirability of preventing any bona fide argument for reform The utmost that can be said is that the addition of the Explanation with its apparent repetition of the positive enactment in the guise of a qualification of the Explanation shows an almost meticulous care to balance the two considerations, prominence being given to the first consideration in the first part of the section, and to the second in the Explanation.
In applying these balancing principles it is inevitable that different minds may come to different results, one mind attaching more weight to the consideration of freedom of argument, and the other to the preservation of law and order or of harmony.
9. More apposite to the present case are the observations as regards the question of hatred or contempt of a class or a section. It was argued that the object of the article before them was to attack the system, not a class or section. They say,--
It may be assumed, for the purposes of this case, that there may be reference to a class or section of His Majesty's subjects so couched as to show that the attack is merely upon a school of opinion, and that unless the language is such as to excite hatred or contempt of persons, it may escape condemnation. But assuming this, the appellant remains face to face with the difficulty that there is language used in certain of the articles which may legitimately be construed as tending by inference or suggestion to excite hatred or contempt in such a fashion that it may become personal.
It may well be that the primary object was a legitimate attack upon a system, but unless care is taken it becomes difficult to make a fierce attack upon a system without conveying some imputation upon the class which the system makes or which carries the system into practice. And it must be remembered that those words in Clause (c) which refer to the hatred or contempt of a class or section are not limited by Explanation II, and that there has been in this respect some departure from the policy of the Penal Code, which superadded, a qualifying Explanation which has not found place in the Press Act.
10. It is necessary to say at once that there is no longer the departure from the provisions of the Penal Code (Section 153-A) in the Indian Press (Emergency Powers) Act. Explanation 4 to Section 4 substantially reproduces the Explanation to Section 153-A of the Indian Penal Code.
11. Even if we were to hold that there has been in the article a fierce attack upon the system which, according to the' writer, has resulted in the subordination of the majority community by a small minority, we do not find any imputation upon the minority class, i.e., the Brahmins. There is in our opinion no language to excite hatred or contempt of persons. Explanation 4, in our view, would very much cover a case like the present. The learned Advocate-General conceded that the writer does not call upon the Non-Brahmins to take any action against the Brahmins which is likely to injure them.
12. Enmity and hatred are strong words. In a world of conflicting claims, it would be manifestly unfair to characterise every expression of dissatisfaction and every ventilation of grievances as tending to the promotion of enmity and hatred. To point out facts and circumstances to serve as an incentive to unity among the members of one class is not to create hatred or enmity between classes. It is true that here and there there are sentences and phrases which are not moderate and occasionally are provocative. The use of the word 'Parpaneeyam' is also certainly unhappy. But as the security provisions of the Press Act are in a sense penal, the benefit of the doubt, if there is any, should always be given to the person against whom action is taken. This is a case in which even if there be a doubt, the benefit should go to the petitioner.
13. A few decisions were cited before us, but we do not think any useful purpose will be served by discussing them as our decision must almost entirely depend upon the language of the particular offending articles.
14. We hold that the articles in question do not contain words of the nature described in Section 4(1) (h) read with Explanation 4 of the Indian Press (Emergency Powers) Act and set aside the order of the Provincial Government directing the petitioner to deposit security to the amount of Rs. 3,000.