Abdur Rahim, Offg, C.J.
1. This is an application under Section 17 of the Indian Press Act of 1910 by Mrs. Annie Besant, the keeper and printer of the 'New India' Printing Works, and the Editor of the news paper, 'New India.' The applicant seeks to have set aside an order of the Chief Presidency Magistrate of Madras, dated 22nd May 1916, requiring her to deposit security of Rs. 2,000 under Section 3 (1) of the Act an order of the Governor-in-Council, dated 25th August 1916, declaring under Section 4(1) the security so deposited and all copies of 'New India' wherever found to be forfeited to His Majesty. No copies of 'New India,' it may be mentioned, have actually been seized.
2. The order of the Chief Presidency Magistrate is attacked, firstly, on the ground that inasmuch as the press and the newspaper in question were in existence before the passing of the Press Act under the names and styles respectively of The Standard Press' and 'The Madras Standard,' the fact that the applicant, having purchased the said press, made a declaration before the Magistrate with respect thereto on the 2nd December 1914, under Section 4 of the Press and Registration of Books Act of 1867, in the new name of the 'New India Printing Works' did not bring this press under the operation of Section 3 (1) of the Press Act. But clearly the provisions of the Act are applicable to all printing presses: under Section 3 (1) the Magistrate is to take security from any person who makes a declaration before him with respect to any printing press, apart from any question whether it was set up before or after the Act, and by sub Section 2 the Local Government, may in certain circumstances require the keeper of a press in respect of which a declaration was made before the commencement of the Act of 1910 to deposit security. Section 4 of the Press and Registration of Books Act of 1867 prohibits any person to keep a printing press without making a declaration to the effect that he has a press for printing purposes at a particular address, which he is bound to disclose. It is directed against the keepers of printing presses for the time being: so with every change of hands, a fresh declaration becomes necessary. In this way, the 'New India' Printing Works became amenable to the action of the Chief Presidency Magistrate under Section 3 (1), when as required by the law a fresh declaration was made before him by the applicant. 1 may mention that a certified copy of a judgment of the Patna High Court, dated 5th June 1916, in Criminal Revision No. 93 of 1916, was cited before us in support of the applicant's contention, but it is sufficient to say that I have not been able to find out what exactly was decided in that case.
3. The Chief Presidency Magistrate, however, chose to dispense with the deposit of security at the time the applicant made the declaration. And it is thereupon argued that he became functus officio so far as the press was concerned and was not competent to pass his subsequent order of 22nd May 1916. By Section 3(i), all keepers of printing presses are required to deposit security at the time of making the required declaration to such an amount, not exceeding Rs. 2,000, as the Magistrate may fix. Then comes the proviso, which says: Provided that the Magistrate may, if he thinks fit, for special reasons to be recorded by him, dispense with the deposit of any security or may from time to time cancel or vary any order under this Sub-section.' It is contended by the learned Advocate-General on behalf of the Crown that the words 'to cancel or vary any order under this Sub-section' gives the Magistrate the power to cancel his order dispensing with security, although he derived authority to pass that order from the proviso itself. But it seems to me that the use of the words or may' before the words 'cancel or vary any order under this Sub-section' goes to negative such a construction: it indicates that an order dispensing with the deposit of security is not included in the words Any order within this Sub-section.' It is true in one sense that a proviso is part of the Section to which it is attached. But in ordinary legal parlance a proviso is to be distinguished from, the enactment, to which it is generally appended either for f the purpose of explaining what particular matters are not within the meaning of the enactment see West Derby Union v. Metropolitan Life Assurance Society (1897) A.C. 647, or for providing exceptions and qualifications to the enactment or for other similar purposes. The proviso is something subordinate to the main clause and the general Rule is that what is contained in the proviso is not to be imported by implication into the clause.
4. When a reference is made in the proviso to what is enacted by the Section or Sub-section Sub-section to which it is appended, one would not ordinarily read it, unless so compelled, to include anything contained in the proviso itself. Here the main purpose of the enactment is to authorise the Magistrate to fix the amount of security and it is to enable him to cancel or vary this order from lime to time that he is given the power under the latter part of the proviso.
5. It was argued that the Legislature could not have intended that if the Magistrate once dispensed with the deposit of security, he should have no farther power to require security if he so chose. But it must be remembered that he is to dispense with security only for special reasons which have to be recorded by him and it is not unlikely that the Legislature thought that where such reasons existed, the particular keeper of the press who was so exempted should not again be called upon to furnish security.
6. However that may be, I do not feel called upon to put any construction on au enactment such as this which would tend to extend its scope beyond what is warranted by the natural meaning of the words used by the Legislature. Section 3 (1) imposes a serious disability on persona desiring to keep printing presses. It must have the effect of hampering the carrying on of what is ordinarily not only a perfectly legitimate business, but one which has played such an important part in the diffusion of knowledge and progress of civilization.
7. Upon this application, however, it is not open to us to set aside the order of the Chief Presidency Magistrate. Whether Section 22 of this Act bars all interference on our part or not, is a question which will have to be considered in connection with another application which will be dealt with later. But in any case, there is no provision in the Press Act of 1910, under which this application is made, which enables us to deal with the order of the Magistrate purporting to be made under Section 3 (1).
8. As for the order of forfeiture, Section 22 read with Sections 17 and 19 debars us from interfering with it except on the ground, namely, that the extracts in question are not of the nature described in Sub-section (1) to Section 4. This is quite clear.
9. Before dealing with the application on the merits, I should mention that the applicant repeatedly complained to us that the Government before passing the order of forfeiture did not give her sufficient intimation as to the kind of matters published in the paper which they regarded as objectionable nor did they call upon her to show cause why the security deposited by her should not be forfeited. The Act imposes no duty upon the Government to issue any warning or to ask for any explanation before taking action. There may be force in Mrs. Besant's plea that if she knew what it was in the policy of 'New India' or in the nature of the matters published in it to which the Government had objection, she would have been in a position to take steps to prevent anything appearing in the paper which might reasonably be considered to be offensive. She has told us that there' was only one letter which appeared in New India written by an Englishman on the subject of Indian Servants to which the Government took exception but that, as a matter of fact, the editorial note had made it clear that the views of the writer found no sympathy with the editor. She says she received no other warning of Government disapprobation. It seems quite possible, judging from Mrs. Besant's attitude before us, that if her attention had been properly drawn in time, greater check would have been exercised over the language used in some of the letters and articles published in New India.' But that is a matter which the Government can could legitimately take into account : it can in no way influence our judgment on the questions for decision.
10. The scope of Section 4 was considered by the Calcutta High Court in the matter of a petition of Mahomed Ali v. Emperor 18 C.W.N. 1 and the learned Advocate General has supported the interpretation put upon it by Chief Justice Jenkins and the other learned Judges of that Court. That, generally speaking, the terms of the Section are extremely wide and comprehensive cannot be doubted. They vest the Local Government with a discretion so large and unfettered that the keeping of printing presses and the publication of newspapers become an extremely hazardous undertaking in the country. A press may be devoted to the printing of most useful and meritorious literature or other publications of an entirely innocent and non-controversial nature, yet it will be liable to forfeiture if any matters printed in such press are considered by the Government to be objectionable within the meaning of the Act. It may be doubted if it is possible for the keeper of any printing 'press in the country to maintain such an efficient expert supervision over matters that are printed as to detect everything that might be regarded to fall within the 'widespread net' of Section 4.
11. Similarly a newspaper may he consistently staunch in its loyalty to the Government, its general policy may be above all reproach, the sincerity and bona fides of the intention of the editor may not be liable to question, but if any letters or other writings are let in, may be through carelessness, which come within the scope of any of the clauses to Section 4, the Government may at once without any trial or even a warning forfeit the security, and in this way ultimately put an end to the newspaper itself. That the influence of a periodical on public life of the country is on the whole decidedly beneficial need be no bar to the Government's action. The Local Government, it may be assumed, will not indiscriminately exercise the power which it possesses under this enactment, but the vesting of such unlimited power in the Executive Government is undoubtedly a serious encroachment on the freedom which the Press in India enjoyed before the passing of the Act.
12. The Act, as is well known, was passed in order to counteract the manifold ingenious devices adopted by the anarchists of Bengal for carrying out their propaganda. How far it has been instrumental in accomplishing that object is not a question with which we are concerned; nor are we concerned with the question whether the Legislature was justified in applying such a drastic press law to the whole of India, while the evil sought to be met was mainly connected with the activities of a band of young revolutionaries in one part of the country.
13. Mrs. Annie Besant has argued having regard to the nature of the enactment that so far at least as it affects European British subjects, Section 4 of the Act is ultra vires of the powers of the Indian Legislature. The Indian Legislative Council is a subordinate Legislature exercising only a delegated authority and Section 65 (2) of the Government of India Act, which lays down that the Governor-General in Legislative Council has not power to make any law affecting...any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom.' The contention is this: in the' words of Sir William Blackstone, 'allegiance is the tie which binds the subject to the King in return for the protection which the King affords to the subject,' and to use the language of Bracton 'the King is under the law, for the law makes the King.' What is meant by allegiance is more fully explained by Norman, J., in In the matter of Ameer Khan 6 B. L.R. 392. 'It is the true, and faithful obedience of the subject to the Sovereign. Everyone born within the dominions of the King of England, whether in England or in the Colonies or dependencies, being under the protection, therefore, according to our common law, owes allegiance to the King:'
14. By the unwritten laws' are meant, generally speaking, the laws recognising the fundamental right of the subject to enjoyment of personal freedom and property of which he could not be deprived except by a sentence of the Court of Law. They were embodied in England in the Great Charter and the Petition of Bights which, as pointed out by Norman, J., are for the most part declarations of what the existing law was, not enactments of any new law.' That learned Judge also observes that the infraction of such laws may be carried to such an extent as to give rise to the right of self-defence on the part of the subject, a right which, says Sir Michael Foster, the law of nature giveth and no law of society hath taken away.' Then further on: 'it would be strange indeed if a great popular assembly like the Parliament of England had put into the power of a Legislature which has not, and in the nature of things could not have, any representative-character, the power of abrogating or tampering with such fundamental laws.' Norman, J., however, refused to issue a writ, of Habeas Corpus to the jailor who had charge of the body of Ameer Khan who had been imprisoned under Regulation III of 1818, holding that its validity had been duly recognised by the Legislature, and that even if the writ was issued, it would be in-fructuous, as the jailor acting under the warrant of the Governor-General-in-Council was not bound to obey the writ.
15. The decision of Norman, J., was upheld in appeal by Phear and Markby, JJ. See In the matter of Ameer Khan 6 B. L.R. 459; but the learned Advocate-General has relied upon the judgments in appeal as modifying the propositions cited from Norman, J.'s judgment. Phear, J., says (page 477): 'But I think it right to say that in my judgment the words whereon may depend, etc.,' do not refer to any assumed conditions precedent to be performed by or on behalf of the Crown as necessary to found the allegiance of the subject, but to laws or principles which prescriba the nature of the allegiance, viz., of the relations between the Crown on the one hand and the inhabitants of particular provinces, or particular classes of the community, on the other; and obviously such, laws and principles as these are not touched by the local Acts which are impeached before us.' Markby, J., at page 482 observes: 'The restriction, which is the foundation of the second objection to the validity of the Act, is certainly couched in language to the last degree vague and obscure... I wholly repudiate the doctrine contended for, that the allegiance of a subject to his Sovereign can by any possibility be legally affected by the mere withdrawal from the subject of any right, privilege, or immunity whatsoever. I think the notion of reciprocity expressed in the maxim protectio trahit subjectionem, et subjectio protectionem, upon which this argument depends, is one which is wholly inadmissible in any legal consideration. It appears to me that if we are to admit such a doctrine as this we must admit it, not only with regard to Acts of the Indian Legislature, but to Acts of the English Parliament.'
16. As to this last observation I may point out with great respect that there is. a fundamental difference between the Legislative powers of the Imperial Parliament which, according to the theory of the English constitution, can enact any laws it chooses and the authority of the Indian Legislature which is purely derivative and subordinate. Any enactment of the latter in excess of its delegated powers or in violation of the limitations imposed by the Imperial Parliament is null and void. This doctrine was recently expressed in very clear terms by the Judicial Committee in the famous Moment case Secretary of State v. Moment 18 Ind. Cas. 22, the judgment in which was delivered by Lord Haldane. In that case it was held that Section 41(b) of the Act of 1891, by which it was sought to debar a Civil Court from entertaining a claim against the Government to any right over land, was ultra vires of the powers of the Indian Legislature as contravening the provisions of Section 65 of the Government of India Act of 1858 (corresponding to Section 32 of the Government of India Act of 1915). Lord Haldane observed (page 401 Page of 40 C.---Ed,): 'It appears, judging from the language employed, to have been inserted for the purpose of making it clear that the subject was to have the right of so suing and was to retain that right in the future, or at least until the British Parliament should take it away. It may well be that the Indian Government can legislate validly about the formalities of procedure so long as they preserve the substantial right of the subject to sue the Government in the Civil Courts like any other defendant, and do not violate the fundamental principle that the Secretary of State, even as representing the Crown, is to be in no position different from that of the old East India Company. But the question before their Lordships is not one of procedure but whether the Government of India can by legislation take away the right of the subject to proceed against it in a Civil Court in a case involving a right over land. Their Lordships have come to the clear conclusion that the language of Section 65 of the Act of 185S renders such legislation ultra vires.'
17. The whole question, therefore, here is, what is the meaning of the words in Section 65 (2) of the Government of India Act, which has been cited above. Is it as understood by Norman, J., or as suggested by Phear and Markby, JJ.? The question is one of great importance and not free from difficulty and I do not wish to express any-positive opinion on it. It is neither necessary to do so to decide the question involved in this application, nor am I satisfied that it has been fully discussed. But as at present advised, it seems to me that the construction put upon the enactment by Norman, J., is what is really required by the plain meaning of the words used. And I find no difficulty in conceiving that the Imperial Parliament, with all its great traditions in upholding the cause of liberty, should have been unwilling to grant to the Indian Legislature, constituted as it is, any legislative powers which would enable the Government of India to encroach upon those fundamental rights of the people the violation of which, especially by a foreign Government, is so calculated to lead to a disturbance of that peace in the realm which it is the highest concern of the Crown always to assure. That the provision of Section 43 of 3 and 4 William IV, Chapter 85, is not to be regarded as of no practical value and importance or as something quite obsolete is made clear by its repetition in identical language in Section 65 of the Government of India Act of 1915.
18. The next question in this connection is whether the enactment in Section 4 of the Press Act is such as can be said to be in violation of Section 65 (2). It is argued by the applicant that the forfeiture of security by the Government under the provisions of Section 4 without trial in the ordinary Courts of Law is repugnant to a subject's right to hold and enjoy property, unless it is forfeited to the Crown after due trial for any offence or charge proved in due course of law. The Government acting under Section 4 need not hear the person whose property it seizes, need not take any evidence nor is it bound to follow any kind of procedure which would ensure that the forfeiture was made after proper deliberation with due regard to the rights of the parties concerned and in the true interests of the State. The right of appeal to the High Court under the provisions of Sections 17 and 19 does not make any substantial difference, as the onus is cast upon the owner of the confiscated property to prove that the order of forfeiture was wrong and that right must, in the circumstances, be treated as more or, less illusory.
19. The contention of the Advocate-General in answer to this reasoning is that there are numerous instances in which personal freedom of the subject is interfered with because of the exigencies of good government. For instance, persons suspected of crimes are daily arrested by the Police before they are placed on trial and the laws of every country place restrictions' on the user of certain forms of property in the interests of public welfare. This enactment he says stands practically on the same footing.
20. But it is unnecessary to determine any of these questions for the very simple reason that this Court is constituted and this application has been made under the special provisions of the Press Act itself and Section 22 of that Act prevents all interference on our part except on one ground mentioned in Sections 17 and 19. When this was pointed out to Mrs. Besant, she further contended that Section 22 itself was ultra vires. Even if that contention were valid, whatever other remedy she may have she has none on this application.
21. Now I shall examine the provisions of Section 4 in some detail. It is contended that the phrase which are likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication or otherwise' means that if any of the words used may, by any possible construction, however ingenious and far-fetched, be supposed to have an objectionable tendency of the nature described therein, that is enough to bring a newspaper within the purview of the Section. This indeed is said to be the interpretation which found favour with Chief Justice Jenkins. He says that the provisions of Section 4 are very comprehensive, and its language is as wide as human ingenuity could make it. Indeed, it appears to me to embrace the whole range of varying degrees of assurance from certainty on the one side to the very limits of impossibility on the other.'
22. 'It is difficult to see to what lengths; the operation of this Section might not plausibly be extended by an ingenious mind. They would certainly extend to writings that may even command approval.'
23. 'An attack on that degraded Section of the public which lives on the misery and shame of others would come within this widespread net: the praise of a class might not be free from risk. Much that is regarded as standard literature might undoubtedly be caught.'
24. Anything which fell from that distinguished Judge has my greatest respect. But though undoubtedly the language of the enactment is, as I have said, extremely, nay dangerously wide, I venture to doubt if the cases which are mentioned above could reasonably be said to come within the scope of the Section. In the first place, the words whether by inference, suggestion, allusion, metaphor, implication or otherwise' are merely by way of explanation, and do not in any way enlarge the meaning of the words which are likely or may have a tendency directly or indirectly.' By 'tendency,' J take it, is meant the natural effect of the words used on the readers of the newspaper in qutstion. I do not think that we ought to have any regard in this connection to the effect which they may possibly produce on the minds of abnormally constituted persons, or persons whose acquaintance with the language is inadequate, or on those who might content themselves with reading certain passages or expressions apart from the context.
25. I do not think that our decision upon the tendency of publications in a newspaper should be affected by a consideration of the interpretation which men of ingenious minds may put upon them. All that we are to take into account is the effect, which the words are, by their nature, likely to produce on a normal average reader understanding them in their plain, natural meaning.
26. But the onus is laid (see Sections 17 and 19) upon the person whose security has been forfeited to prove that the publications elected by the Government at their own discretion may not have the tendency described in the various clauses. That is not only reversing the ordinary procedure in trials, but the difficulty of proving such a negative as this must in many cases be insurmountable.
27. Then apart from explanation 2, we have, pot, in applying Section 4 (1), to consider the intentions of the Editor or the writer, if it is not shown that the words in their plain, ordinary meaning, may not tend to produce the objectionable effects mentioned in clauses (a) to (f).
28. The 'extracts under consideration are said to come within clause (a), (c), (d) or (e). Briefly speaking, clause (a) relates to words having a tendency to incite to acts of violence; clause (d) to words tending to put any person to fear and thereby induce him to do an act which he is not legally bound to do; and (e) relates to words which encourage persons to interfere with the maintenance of law and order.
29. That portion of clause (c) with reference to which the extracts require careful examination is this: to bring into hatred or contempt His Majesty or the Government established by law 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.....' It will be seen that this lumps together the offences defined by Sections 124A and 153A of the Indian Penal Code, with this difference that we are riot concerned here with any question of intention of the Editor or writer of the articles, leaving aside for a moment the effect of explanation 2 which will be considered presently.
30. The words of Section 121 A, which has been the subject of interpretation in a number of cases, have been substantially reproduced in clause (c). 'Hatred' and 'contempt' which are ordinary English words, I take it, mean something more than mere disapproval or dislike. The word 'disaffection' has been explained in the Section itself as including disloyalty and all feelings of enmity and I do not think any practical purpose would be served by attempting to suggest any further explanation.
31. But a question has been raised as to the meaning of the phrase the Government established by law in British India.' It is contended by the applicant that what is meant by that phrase is the supremacy of the British Crown and the British connection as opposed to independence. This cannot be a definition of Government' as used in the Section; it would only indicate the essential elements in the political relation between India and Great Britain. Government denotes an established authority entitled and able to administer the public affairs of the country. On the other hand, Government is not identical with any particular individuals who may be administering the Government. Mr. Justice Strachey of the Bombay High Court defined it as British Rule and its representatives as such, the existing political system as distinguished from any particular set of administrators.' See Queen-Empress v. Bal Gangadhar Tilak 11 Ind. Dec. 656. Justice Batty in Emperor v. Bhaskar Balvant Bhopatkar 8 Bom. L.R. 421, explained the conception of Government in somewhat greater detail. 'What is contemplated under the Section is the collective body of men---the Government, defined under the Indian Penal Code......It means the person or persons collectively, in succession, who are authorised to administer the Government for the time being, One particular set of persons may be open to objection, and to assail them and to attack them and excite hatred against them is not necessarily exciting hatred against the Government, because they are only individuals and not representatives of that abstract conception which is called Government...The individual is transitory and may be separately criticised but that which is essentially and inseparably connected with the idea of the Government established by law cannot be attacked without coming within this Section.' The same idea underlay Sir Comer Petheram's explanation of the phrase in the 'Bangobasi' case Queen-Empress v. Jogendra Chunder Bose 19 C. K 35, where he says that British India is part of the British Empire and is governed like other parts of the Empire by persons to whom the power is delegated for that purpose. There is a great difference between dealing with Government in that sense and dealing with any particular administration.' In the above sense Government' includes not only the Government of India but also the local Governments.
32. I think the last passage from Justice Batty's judgment cited above requires some explanation. I do not think he meant that the law prohibits criticisms of the Government as constituted in a particular form, provided such criticisms do not bring it into hatred or contempt or excite disaffection against it. In fact all criticisms of the measures of a Government must in some degree involve reflections on the Government itself. But Section 4 allows less scope to criticisms directed against the Government itself than to criticisms of measures of the Government.
33. Explanation 2, which is transcribed almost word by word from Section 124A, says that comments expressing disapproval of the measures of the Government with a view to obtain their alteration by lawful means or of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection do not come within the scope of clause (c).' The draftsman who borrowed these words from Section 124 A apparently overlooked the fact that the essence of an offence under Section 124 A being the guilty intention, explanation 2 necessarily imported the question of intention, while clause (c) to Section 4 to which the explanation was attached is not concerned with the intention of the writer of the words charged. However that may be, we must read explanation 2 as we find it. So reading, it means that comments on the measures and actions of the Government are exempted from the operation of Section 4, provided the person making the comment does not excite or attempt to excite thereby hatred or contempt against the Government. But the protection afforded by this explanation is extended only to comments on government's measures and actions, and not to attacks on the Government itself which have to be judged by light of the Section 4 alone without reference to the explanation II.
34. It is evident from some of the extracts, the subject of the charge, from the statements of the applicant herself and certain copies of 'New India' tendered in evidence under Section 8 that it is the declared policy of this paper to advocate and agitate for Home Rule in India. The method adopted is to draw attention to those measures and actions of the Government that are in the opinion of the editor injurious to the interests of the people and thereby to enforce the teaching that Home Rule is the only efficient remedy for most of the political evils in the country. The learned Advocate-General very rightly told us under instructions from the Government that they did not object to advocacy of any Home Rule propaganda; what they objected to was the nature of the matters published in the paper, connected though they might be with a scheme for Home Rule.
35. And in fact it is difficult to see how any such movement can be regarded as illegal per se. It lies entirely with the Sovereign, that is in the compendious phrase of Dr. Dicey, the King in Parliament, to establish any Government he chooses for India or any other part of the British Empire. There can be nothing wrong, therefore, in a subject of the Crown urging the desirability of a change in the machinery of Government in India. Changes in the constitution of Government do take place from time to time with the consent or sanction of the Sovereign and the most recent, in the case of India, were the reforms introduced by Lord Morley. In certain stages of society, reforms in the constitution of the Government are a biological and political necessity. To say that such questions are not open to public discussion, supposing that the law is not violated by the manner and the methods adopted in such discussion, would be opposed to all sound maxims of constitutional law. The principle which bears on the subject has been expressed in the following terms, which have met with the approval of some of the most distinguished text-writers: An intention is not seditious if the object is to show that the King has been misled or mistaken in his measures or to point out errors and 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 or to point out with a view to their removal matters which are producing or have a tendency to produce feelings of hatred or ill-will between classes of the subjects' (see Stephen's Commentaries, Volume IV', page 150, 16th Edition; Dicey's Law of Constitution, page 240, 8th Editor : 9 Halsbury's Laws of England, page 460, paragraph 902)
36. The applicant has complained to us that the Madras Government never made any pronouncement on the subject of Home Rule and she thought that they objected to the movement suggesting thereby that if she had known their real attitude, the tone of some of the articles might have been modified. But then she was not justified in supposing that the Government would act contrary to the law, and any such supposition could not be a valid excuse if it led her to publish matters obnoxious to the law.
37. After the best consideration I have been able to give to these articles, which I shall now proceed to deal with in detail, I fully accept the assurance of the applicant that her newspaper 'New India' has been persistently preaching against acts of violence. Nor have I found anything in these articles which can reasonably be taken to suggest that India should sever her connection with the British Crown or the British Empire. In fact, it is expressly stated in some of these extracts, for instance Extract No. 3, that what New India has been struggling for, to use its own language, is 'Home Rule', by which is meant Self-Government within and as a part of the British Empire. The applicant indignantly repudiated charges of disloyalty to His Majesty, and I find nothing in the language of these articles which would lead me to doubt in any degree the sincerity of her protestation. Nor has the learned Advocate-General suggested otherwise. The real question, however, is whether the words of any of these extracts are likely to have a tendency to bring into hatred or contempt the Government or to excite disaffection towards the Government or to bring into harted or contempt any class of His Majesty's subjects in British India, or do they or any of them come within the scope of explanation 2 to Section 4. I will say at once that none of the articles cited in the charge can fairly be said to have any tendency of the description mentioned in clauses (a), (d) and (e).
38. I will take serial Nos. 4 (a) to 4 (f) together. These are letters of correspondents and paragraphs dealing with the practice which obtains on certain railways of reserving compartments for the use of Europeans and Eurasians alone and of excluding from them Indian passengers holding tickets issued to them in due course. They are written on the assumption that the legality of such practice was open to challenge. It is possible that the decision of the Sindh Court referred to was misunderstood, but there can he no doubt that the writers bona fide believed that it had declared against the validity of the practice. It is stated that it was a matter of frequent occurrence that, while the compartments reserved for Europeans and Eurasians were empty, Indian passengers were not allowed to use them, even though the other compartments were overcrowded and many Indian passengers holding tickets were unable to find seats. The action of the Railway authorities is condemned not only as illegal hut objectionable as tending to emphasise racial distinctions. The suggestion is made in several of the extracts that the passengers should test the legality of this practice. It is urged that the editorial note to Serial No. 4 (d) why did you get out, It is this submission to illegality that causes half the troubles from which Indians suffer' amounts to a Suggestion to use violence: but I have no doubt that the note is not reasonably capable of being so understood, if read in the light of the letter to which it is attached and in connection with the other writings on the same subject. It has also to be borne in mind that some of these extracts had already appeared in other newspapers.
39. Extract No. 5 which is headed 'The price of Liberty' is an article quoted from the Herald' of London. It is an apology put forward by one John Scurr for the action of persons known as conscientious objectors to conscription. It extols the virtues of thee who, for the sake of the cause which they believe in, cheerfully and boldly suffer all kinds of inflictions. Mrs. Besant has told us that as a matter of fact she has been doing everything possible in her power to support the British cause in this War through the medium of New India and that is rot denied on the other side. There is no question of conscription in this country and the objection of the Advocate-General to this extract is that it may have a tendency to incite the readers of the 'New India' to acts of violence against the Government. But I can find no such suggestion in the extract. Mrs. Besant herself explained to us that the reason why she inserted it in the Home Rule Section (that is to say, that part of the paper which is especially devoted to the question of Home Rule for India) was simply to supply an object-lesson to the people of this country in self-sacrifice. I am unable to say that it suggests in any way that people should take the law into their own bands.
40. Extract No. 7: 'The latest political crime in Calcutta and its moral, by Bipin Chandra Pal.' This, it is contended, comes under clauses (a), (e) and (e). I have read the article with considerable care and I cannot find in it any palliation of the anarchical crimes committed by the young anarchists or revolutionaries of Bengal, as suggested on behalf of the Crown. What the writer tries to prove is that repression alone is hot an adequate remedy for the present situation in that province. He expresses the opinion that if the Government would publicly accept Swaraj or Home Rule as the ideal objective of the immediate historical evolution of the Indians' and if they would start some of those necessary reforms in the administration' which would give a practical assurance to the future national autonomy inside the coming federation of the whole British Empire', the problem might be more easily solved. Mr. Pal asks the Government not to regard these misguided young students as mere ordinary criminals but rather as political offenders. He does not, however, suggest that their offences should not be punished according to law. In one place he says that, these men are possessed of a kind of courage which should not be overlooked, but in the same sentence he condemns 'the suicidal folly and criminal inhumanity of their actions.' I do not think that any reader of 'New India,' who is not predisposed to read in meanings in the article which are not there, would carry away the impression that it attempts in any way to excuse the conduct of the political assassins in Bengal. Nor is there a single word in the whole of that article which can he paid to have a tendency to bring the Government into hatred or contempt or to excite disaffection against it.
41. Extract No. 3 is 'Latest sin of the Arms Act.' It notices a dacoity of a very serious nature which was committed in the house of a rich merchant in a village in this Presidency. Large sums of money and jewels were carried away and the victim, it is said, bitterly complained of the helplessness of the unarmed villagers to offer any resistance to the armed bandits. The moral is pointed that such helplessness is the result of the Arms Act and the writer pleads for its repeal or modification. It is difficult to see how this paragraph can be said to go beyond the limits of fair comment on a measure of the Government which has formed the subject of frequent discussion in newspapers and on public platforms.
42. Extract No. 1. 'Bureaucracy in Excelis', is a letter written by one Krishnama Chariar denouncing the action of the Magistrate requiring security from the applicant. It accuses the Madras Government of blind hostility against 'New India,' dwells on the unwisdom of relying too much upon the sympathy of the Bureaucracy towards any of her (i. e., India's) truly higher aspirations' and says when 'New India' mercilessly exposes any and every vagary of the Englishman in this land that it can come across, the Anglo-Indian blood boils with all the uncontrollable rage of the most selfish vested interest.' This is undoubtedly a violent piece of writing and goes beyond the limits of fair comment.
43. Extract No. 2 is also a letter from a correspondent. It not only describes the enforcement of the Press Act against New India' as 'inhuman action and barbarous atrocity,' but it leaves the readers under the impression that the much-hated and ever-mischievous bureaucracy' is identical with the Government. It alleges that the Government have a spite against the Editor of 'New India', for 'she is the head of an institution which works against the missionaries and the missionaries are the parasites of the Government.' It is impossible to say that a publication of this character may not have a tendency to excite hatred against the Government.
44. Extract No. 6 is an editorial article, where it is stated 'Repressive measures such as the Press Act, the Seditious Meetings Act, the Official Secrets Act and the Defence of India Act in the hands of people with vested interests of their own naturally assume a shape and a form all too ghastly for the children of the soil, and day and night exert a baneful influence over them, engendering at once fear and hatred.' Supposing these measures are all of a repressive character and are objectionable, still to describe them in language quoted is certainly not fair comment, and naturally tends to create a feeling of dislike and hatred against the Government.
45. Extract No 8, Ave Caesar', is written by Mrs. Besant herself criticising the order passed by the Government of Bombay under the Defence of India Act prohibiting her from entering that province. She told us that she wrote in that strain because she was indignant that the Defence of India Act, which is directed against the enemies of England and of His Majesty the King-Emperor, should have been used against her.' I am not inclined to attach much importance to this paragraph, it is an outburst of an enraged woman who felt that she had been very unjustly dealt with.
46. In similar strain is Extract No. 9. It contrasts the attitude of Anglo-Indians towards constitutional struggles in India with that of Englishmen in England. In, Extract No. 10 there is a suggestion that sometimes action under the Defence of India Act is resorted to by the Government from a feeling of personal enmity. Extract No. II deals with' the case of one Shyam Sunder Chakravarthy, Assistant Editor of the Bengalee, who was arrested in Calcutta and in connection with whose arrest the safe of Babu Surendra Nath Bannerji, the editor of that paper, was searched by the Police. Without stating whether the arrest was under the ordinary law or under the Defence of India Act or what' was the nature of the evidence upon which action was taken by the Police, it is asserted 'the arrest is legal doubtless, but is truly unlawful'. When injustice is perpetrated, when crimes are committed legally, when innocence is no protection and harmless men are treated as criminals, then we live in a condition of anarchy, no matter what legal sanction may cover the wrongdoer. Civilization does not protect us. We should be better off in a state of savagery, for then we should be on our guard, we should carry arms and protect ourselves. We are helpless. We pay taxes to be wronged', words like these exceed the limits of all fair comment and are likely to excite hatred against the Government.
47. Extract No. 12 is a plea for Home Rule. It is taken from a contribution in the Commonweal.' The Advocate-General has especially drawn our attention to the passage where the writer speaks of this age as an age for heroes who dare to enter the arena of righteous warfare loved by the true Kshatriyas of old, to whom according to the Gita nothing is more welcome', and to the allusion to Paine, the American writer's saying 'that we are living in times that try men's souls.' I think the allusion to the true Kshatriyas of old is by way of exhortation not to wage actual warfare against the Government but to fight the constitutional battle for Home Rule. There are also allusions to certain social customs in the East and in the West which are certainly not in good taste and are calculated to arouse class hatred between Englishmen and Indians. There are words which might also be liable to be understood as suggesting that Government has encouraged dissensions among people of different religions and castes in the country.
48. Extract No. 13 contains the suggestion that the reason why Bal Gangadhar Tilak of Bombay who had instituted an action in the English Courts against Sir Valentine Chirol was refused a passport by the Bombay Government was that he might not go to England to prosecute his case. I find nothing to warrant such a supposition which, if well-founded, would be greatly to the discredit of the Government of Bombay.
49. The last article, Extract No. 14, contains a statement that the 'Education of Indian boys is in the grip of foreigners who impose upon them a crushing curriculum; that some of the professors and teachers often treat them with the greatest rudeness and address them in the most insulting terms and that they have no regard to their miserable poverty nor try to improve their indecent and insanitary surroundings.' It is written by way of protest against a suggestion that the actions of educational authorities should not be criticised in the public press. The language used is very strong and it is not right to cast any blame on the English professors and teachers for the 'indecent and insanitary surroundings of the students.' But I do not think that the passage read in the light of the context can be said to have a tendency to bring the Government into hatred or to excite feelings of class hatred, within the meaning of clause (c).
50. The difficulties of a foreign Government, constituted as it is in this country, are necessarily very great. It is not to be expected that it should be in complete touch with the genuine sentiments, feelings and aspirations of the people; the information that it can command must at best be secondhand and is often likely to proceed from interested sources. With the best of intentions, it is liable to make many mistakes, sometimes serious blunders. These and other inherent difficulties of the Government as at present constituted may or may not justify the demand for Home Rule, and it may be that Self-Government is necessary for the full growth of the people. But the law does not permit a publicist, discussing the Government's actions and failures, to impute base and dishonourable motives.
51. Mrs. Annie Besant has assumed full responsibility for everything that appeared in her paper. I am prepared to acquit her of any wilful attempt to disseminate disaffection or hatred against the Government of the country or to create feelings of hatred against any class of His Majesty's subjects. But I have been unable to hold that some of the extracts from the publications in the New India' cited before us may not have such a tendency.
52. The application must be dismissed.
53. This is the petition presented under Section 17 of the Press Act (1 of 1910) by Mrs. Annie Besant, Editor of the newspaper, 'New India,' and keeper and printer of the 'New India Printing Works.' In it she applies to this Court to set aside an order of forfeiture passed by the Madras Government on 25th August 1916 in respect of a sum of Rs. 2,000 deposited by her as security under Section 3 of the Act for the said Press, and of all copies of the 'New India' newspaper. It may be mentioned that the forfeiture of the copies of the newspaper appears not to have been enforced by actual seizure and that the publication of the paper has been continued on deposit of further security under Section 5 of the Act.
54. The order of forfeiture was passed under Section 4 of the Act, which empowers the Local Government to take such action when it appears to the Local Government that the Press has been used for printing or publishing any newspaper containing any words...'which are likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication or otherwise, (a) to incite...to any act of violence...(c) to bring into hatred or contempt......the Government established by law in British India...or any class or Section of His Majesty's subjects in British India or to excite disaffection...towards the said Government...'or (e) to encourage or incite any person to interfere with the administration of the law or the maintenance of law or order.'
55. There are two explanations to the Section, one of which is of considerable importance and will be dealt with in due course.
56. Section 17 of the Act allows any person interested in the property thus forfeited to apply to the High Court to set aside such order (of forfeiture), on the ground that the newspaper...in respect of which the order was made did not contain any words...of the nature described in Section 4 (1).'
57. Section 18 provides for the constitution of a Special Bench of the High Court composed of three Judges to hear and determine such application.
58. Section 19 empowers the Special Bench so constituted to set aside the order of forfeiture, if it appears that the words contained in the newspaper in respect of which the order was made were not of the nature described in Section 4 (1); and further provides that where there is no majority of the Special Bench which concurs in setting aside the order of forfeiture, the order shall stand.
59. It will thus be seen that we are a Special Tribunal constituted under a special enactment for a single specific purpose---namely, to determine whether certain words contained in the newspaper (and specified in the order of forfeiture), are or are not of the nature described in Section 4 (1).'This was the conclusion arrived at by a Full Bench of the Calcutta High Court similarly constituted in Mahomed Ali v. Emperor 20 Ind. Cas. 977 with which I respectfully agree.
60. Much of the argument before us has been devoted to the question of whether and to what extent we should concur in the conclusions to which those learned Judges have arrived, or the further question of the proper construction of Section 4 (1). The Advocate General has contended that we should adopt them in their entirety; while the petitioner argues that the language of the Section defining the nature of the words which would justify forfeiture has been misunderstood and given far too wide an effect.
61. I do not propose to follow this argument in detail. As at present advised, I am by no means satisfied that the interpretation of the learned Judges is not too wide, I can find nothing in the Act which seems to me to throw on the applicant the onus of proving that the words, which are made the ground of forfeiture, do not fall within the scope of the Section. I certainly do not think this is to be deduced (as has been suggested) from the words of Section 19, which empowers the Bench to set aside the forfeiture if it appears that they do not. Whether the words are likely or may have a tendency to produce certain results must be determined primarily by inference from their own nature. The words themselves, form the main evidence in the case: and I do not think the Act throws any onus on, either side. I am not satisfied that the words of Section 4 ('are likely or may have a tendency') 'embrace the whole range of varying degrees of assurance from certainty on the one side to the very limits of impossibility on the other', or that the wording of the Section is so all-embracing that even a person acting in. the highest interests of humanity and civilisation' is confronted with an almost hopeless task in showing that the words he has used do not fall within it. Whether an attack on that degraded Section of public which lives on the misery and shame of others would come within this widespread net' is a question, the decision of which we may, in my opinion, well, postpone until we are asked to decide it. At present we are only concerned with the question of whether the words of the articles s before us do or do not come within the mischief of the Section; and if, as I think, they do without placing any startlingly wide construction on the Section, it is unnecessary for us in this case to decide to what lengths the Section might be ingeniously stretched. That the wording of the Section is very wide is, however, undeniable; and in some respects it clearly goes beyond the provisions of the Penal Code. The governing words are likely or may have a tendency' undoubtedly leave the question of intention quite immaterial: and confine our attention to the natural effect of the words without reference to what the writer meant, or wished to be understood.
62. To this, however, there would seem to be a very important exception in explanation II of the Section which runs: Comments expressing disapproval of the measures of the Government or of any such Native Prince or Chief as aforesaid with a view to obtain their alteration by lawful means, or of the administrative or other action of the Government or of any such Native Prince or Chief or of the administration of justice in British India without exciting or attempting to excite hatred, contempt or disaffection do not come within the scope of clause (c).' The learned Advocate-General has argued that even here the element of intention is absent, and that attempting to incite' is equivalent to tending to excite.' The wording of the explanation, which is apparently taken from Section 124A, Indian Penal Code, is not altogether happy. Comments may excite hatred, etc., but it is difficult to see how comments (i.e., the words used) can attempt to excite. The word attempt' seems to presuppose a sentient being and one animated by a particular intention. I am not disposed to accept the Advocate-General's argument in this respect; and shall consider the extracts placed before us from the point of view that in the case of comments on the measures of Government an intention to excite hatred, contempt or disaffection is necessary to bring them within the scope of clause (c) of Section 4 (1). The intention is, of course, deducible from the words of the extracts themselves.
63. Much argument has also been devoted to the meaning to be attached to the words 'Government' or Government established by law in British India' as used in the Act: and to the words contempt or hatred.' The term disaffection' is defined in Section 4(1), explanation I, which says 'In clause (c) the expression 'disaffection' includes disloyalty and all feelings of enmity.'
64. As regards the first point, petitioner asks us to interpret the words Government established bylaw in British India' as indicating nothing more than the supremacy of the Crown and the British connection. That is to say, as long as the writer or publisher of an article proclaims his loyalty to the King-Emperor, and his desire that India should still remain a part of the British Empire, he may attack to his heart's content the Government of India or the Government of Madras and hold them up to hatred and contempt, without coming within the scope of the Section; and the same interpretation would presumably apply to Section 124A, Indian Penal Code, the wording of which is practically identical. To give effect to such an interpretation would go far to render the task of governing India impossible; and I have no hesitation whatever in deciding that it is not the one intended by the authors of this Act, or one which we should adopt. If anything of the kind were intended, the words used would have been chosen to indicate, not the Government, but the form of Government in so far as it embodies the British connection. We must assume that the term Government', in explanation II to Sub-section (1), is used in the same sense as in clause (c) of the Sub-section and if petitioner's interpretation is correct, to speak of the measures of the Government' is absolutely meaningless.
65. The true interpretation is to be found in Section 3 of the General Clauses Act (X of 1897) which governs the Press Act as regards definitions of terms. It is sufficient to quote the following Sub-sections.
66. (21) 'Government' or 'the Government' shall include the Local Government as well as the Government of India.
67. (22) Government of India' shall mean the Governor-General-in-Council or, daring the absence of the Governor-General-in-Council from his Council, the President in Council or the Governor-General alone as regards the powers which may be lawfully-exercised by them or him respectively.
68. (29) 'Local Government' shall mean the person authorised by law to administer Executive Government in the part of British India in which the Act or Regulation containing the expression operates, and shall include a Chief Commissioner.
69. These definitions (which it may be remarked are substantially identical with those given in Sections 16 and 17, Indian Penal Code) govern the Press Act, 'unless there is something repugnant in the subject or context' (vide Section 3, General Clauses Act). I can find nothing repugnant in the Section or Act. The addition of the words established bylaw in British India' seems to be intended to emphasise the fact that it is the Government existing at the time that is sought to be protected from attacks of the kind forbidden and to exclude the very plea now raised by petitioner.
70. As regards the words 'hatred' and 'contempt' we are asked by petitioner to hold that only such hatred and contempt are contemplated in clause (c) as would lead to the commission of the crimes referred to in the other clauses of the Sub-section, e. g., murder, violence, resistance to the law, intimidation of public servants and others.
71. I cannot find a shadow of justification for such an argument. Hatred and contempt are perfectly intelligible words, but it is impossible to say what degree of hatred and contempt would be sufficient to lead different people to commit different crimes, and there is no ground for giving them such a limited meaning. No case has been quoted to us in which any Court has applied such a limitation even in construing the old Section 124A, Indian Penal Code, before the amendment of 1998. The word therein used was 'disaffection' and I need only refer to the exhaustive discussion of the matter by Strachey, J., in Queen-Empress v. Bal Gangadhar Tilak 11 Ind. Dec. 656. 'Disaffection' (which word is also found in the Section we are construing, in addition to hatred 'and contempt') was held to mean hatred, enmity, dislike, hostility, contempt and every form of ill-will to wards the Government. The amount or intensity of the 'disaffection' was held to be absolutely immaterial except as regards the question of punishment The learned Judge says: 'I am aware that some distinguished persons have held 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 possible 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.'
72. The learned Judge's charge to the Jury in that case contains an exhaustive discussion of the law of sedition: and I select it for quotation and rely on it with the more, confidence because it was substantially approved by their Lordships of the Privy Council in dismissing an appeal specially allowed against the conviction in that case and based very largely on the ground that there had been misdirection on this very point of the meaning of the term 'disaffection.'
73. It is not suggested that the subsequent alteration of the law was in the direction of relaxation or less stringency. Section 124A, Indian Penal Code, was practically re-cast so as to make it clear that Strachey, J.'s interpretation of the law was correct (vide Mayne' Criminal Law of India, 4th Edition, page 298). Nor is it suggested that a more lenient construction should be put on the Section with which we are concerned than would be applied if petitioner were on her trial for' a criminal offence.
74. The learned Judge's remarks are also of the greatest value in dealing with explanation II to Section 4 (1). The explanation to the old Section 124A, Indian Penal Code, with which he was dealing was admittedly susceptible of interpretation much more favourable to an accused person than the (explanations to Section 4 (1) of the Press Act, or those to the present Section 124A, Indian Penal Code. Strachey, J., however, says:
A man may criticise or comment upon any measure or act of the Government, whether legislative or executive, and freely express opinion upon it. He may discuss the Income Tax Act, the Epidemic Diseases Act, or any military expedition, or the suppression of plague ok famine, or the administration of justice. He may express the strongest condemnation of such measures, and he may do so severely; and even unreasonably, perversely and unfairly. So long as he confines himself to that, he will be protected by the explanation. But if he goes beyond that, and, whether in the course of comments upon measures or not, holds up the Government itself to the hatred or contempt of his readers,---as for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people---then he is guilty under the Section, and the explanation will not save him.
75. The words 'dwelling adversely on its foreign origin and character,' 'imputing to it base motives' or 'accusing it of hostility or indifference to the welfare of the people' all have great importance in relation to certain of the articles, which we have to consider. I need hardly say that the first phrase (dwelling adversely on its foreign origin or character) must not be understood in too comprehensive a sense, or divorced from the context.
76. All unfavourable criticism of a Government's constitution, policy or measures must necessarily tend to arouse dissatisfaction. So far, there is nothing illegitimate. No enactment of the Government of India with which 1 am acquainted seems to be intended or, reasonably interpreted, could be used to stifle such criticism. But between dissatisfaction on the one hand and hatred, contempt and disaffection on the other, there is a vast gulf.
77. It is open to any one to draw attention to the non-Indian elements in the Government of India, and to argue that these impair the efficiency of that Government, and that it would be to the public advantage, if they were replaced by Indian elements. That is legitimate criticism. But it is not legitimate to go further and to use the existence of the non-Indian elements of Government as a means of exciting hatred, contempt and disaffection against Government---as Strachey, J., puts it, to hold up the Government to hatred and contempt by dwelling adversely on its foreign character and origin, It all depends on the manner in which and the object with which the circumstance is used in argument.
78. With those preliminary remarks, I shall now proceed to a consideration of the various articles in 'New India' which have been made the basis of the order of forfeiture. They are in all twenty in number, though seven of them have been grouped together under the heading of Extract No. 4 (a---g) in the list appended to the order of forfeiture.
79. In addition to these articles, a number of others culled from various issues of 'New India' between August 1st 1914 and the date of the order of security, have been filed on both sides. They are relied on partly under Section 20 of the Press Act in 'aid of the proof of the nature or tendency of the articles specified as the basis of forfeiture,' and partly as illustrating the policy of the newspaper and, in that way, the probable intention of the petitioner where such intention is relevant.
80. I have considered these articles but find myself unable to derive material assistance from them, one way or the other. In no single case has any attempt been made to show such a connection between one of them and any of the specified articles as would enable a Court to say that a perusal of the one threw appreciable light on the nature and tendency of the other. As regards intention, it seems to me most unsafe to judge of the intention of petitioner in publishing the specified articles, by reference to other articles previously published at long intervals of time, and mostly in other connections. The additional articles filed on petitioner's behalf are, as she explains, intended to show that she has upheld the British connection and the authority of the Crown (as distinguished from the Government of India.): and that in certain instances she has approved of the action of Government. I have already dealt with the distinction she seeks to draw between the Crown and the Government: and an occasional instance of praise of Government has no bearing on the tendency and extremely little on the intention (where such is relevant) of the specified articles. The articles filed by the Advocate-General stand in much the same position. It is sought to prove, by reference to other articles in the paper, that the specified articles were published with the intention of exciting hatred, contempt, or disaffection. I prefer to base my conclusions on the actual articles which have to be construed. I do not say these other articles are irrelevant: I have considered them to the best of my ability, but have found them of so little assistance that I do not propose to lengthen my judgment by further reference to them, and shall confine my remarks to the articles specified in the forfeiture order.
81. Extracts Nos. 1 and 2 have some similarity and may conveniently be dealt with together. They purport to be letters from correspondents published on the 7th and 8th June 1916 respectively, with reference to the order of the Chief Presidency Magistrate, dated 22nd May, demanding security from petitioner under Section 3 (1) of the Press Act. It is not suggested that the fact that they are letters of correspondents makes any difference and Apurba Krishna Bose v. Emperor 7 C.L.J. 49, would be clear authority against such a proposition even in a criminal prosecution. But it is contended that they are comments on the measures of Government and fall within explanation II. If one were inclined to take a narrow view of the explanation it might be difficult to bring the first extract within it. Extract No. 1 is only a comment on the security order in the sense that it has apparently been evoked by the latter. The nature of the order is not even referred to, except incidentally in a single passage towards the end. [shall, however, treat both letters as comments on Government measures, and merely consider whether they satisfy the requirement indicated in the words 'without exciting or attempting to excite hatred, contempt or disaffection.' Extract No. 1 begins by remarking that 'out of evil comes good': and after referring to the benefits indirectly arising from the tyranny of the Stuarts, Aurangazebe and Lord Curzon, says that 'out of the blind hostility evinced by the Madras Government towards 'New India,' our ultra moderate begging politicians are bound to learn the unwisdom of relying too much on the sympathy of the Bureaucracy towards any of our truly higher aspirations.' The writer then goes off at a tangent and proceeds to speculate on the motives which have prompted Government's action. He finds no difficulty in discovering them. 'We can well guess how the journal, 'New India,' has offended the Bureaucracy.' 'The strong plain speaking of 'New India' has grown intolerable for the over-delicate, selfadulent, flattery-loving ears of Anglo-India.' 'When 'New India' mercilessly exposes any and every vagary of the Englishman in this land that it can come across, the Anglo-Indian blood boils with all the uncontrollable rage of the most selfish vested interest.' This is clearly indicated as the cause for the Government's action. The real issue may indeed be expressed in one small phrase 'Anglo-India versus New India''---or as it is put further on, 'the attempt, bound to be futile, is made by Might to overawe and put down Right.'
82. The characteristic feature of the article is that it treats the 'Bureaucracy,' 'Anglo-India' and the 'Madras Government' as synonymous. Certainly no attempt is made to distinguish Government from the Bureaucracy and Anglo-India, and blind hostility is specifically attributed to the former. The motive suggested as animating all three is of the basest---the protection of selfish vested interests, and the resentment at plain speaking of flattery-loving ears.
83. Extract No. 2 follows much the same lines. The first three paragraphs and the first part of the fourth are unobjectionable ---at any rate not beyond the limits of fair comment. The writer refers to the fact that 'New India' has condemned anarchy and has not advocated the severance of the British connection, and observes that the drastic legislation was very drastically applied, the maximum security being demanded without warning or reasons assigned. The term 'inhuman action' is, of course, very inappropriate to a measure of the kind referred to: but bad the writer stopped here, I should certainly hold that the letter did not come within the mischief of the Section.
84. The letter, however, proceeds: 'What private cause has made the Government stoop to such barbarous atrocity we know not. But this we know full well: the much-hated and ever-mischievous Bureaucracy discountenances outspoken criticism and no good Government should be afraid of criticism. We also know that the Government have a spite against the Editor of 'New India', for she is the head of an institution which works against the Missionaries and the Missionaries are the parasites of the Government.' Further down it proceeds: 'News of Prussian aggression and German atrocity are communicated to India to bewilder the Indian imagination. They are committed, under pressure, during the War, under passion. They are common. But what does this mean? This perpetration of atrocity in civic life, in peaceful times, in a peaceful province? This thunder during this sunny day sets the world a-wondering.'
85. Apart from the grossly exaggerated language applied to the measure, which is the subject of comment, and which it is obviously impossible to justify, what I attach particular importance to is the discussion of motive. 'Private cause' is hinted at: and Government is said to have a spite against petitioner for working against the Missionary parasites of Government.
86. No one could write these passages without the intention of exposing Government to the hatred and contempt of its subjects, and it is not questioned that in all cases the intention of the writer must be ascribed to the publisher.
87. Neither of these letters can claim the protection of explanation II: and each falls to my mind beyond question within the scope of Section 4 (1).
88. I shall next take Extract No. 6, an article entitled 'Prussianism in India.' The writer begins by referring to the well-known fact that in India we live hemmed in on all sides by repressive measures. The Press Act, the Seditious Meetings Act, the Official Secrets Act, the Defence of India Act, not to mention several despotic measures of early days---potential of mischief and capable of retarding democratic progress---are all there in the bands of a powerful Bureaucracy to be used as it thinks fit.' He says they have been used, and tend td terrify people. So far, it may' be treated as legitimate though perhaps hardly reasonable comment: but the article then proceeds:
These inquitous measures, in the hands of people with vested interests of their own, naturally assume a shape and form all too ghastly for the children of the soil, and day and night exert a baneful influence over them engendering at once fear and hatred.
89. Here we have the same characteristic. Not only are the measures of Government described in language too exaggerated to be explained merely by an honest desire to criticise: but the motives of Government are impugned and its actions ascribed to a desire to protect 'vested interests.'
90. There is a great deal more in the article but while it certainly contains nothing to qualify or soften the passage above quoted, there is nothing to add materially to it and I pass it over.
91. With this may be taken Extract No. 10 which is short enough to be given in extenso. 'What does..............Great Britain.' (See Extract No. 10. page 541.).
92. The salient feature again is the imputations of motive. The 'four men' referred to can only be the Governor of a Presidency and his members in Council, 'His Excellency the Governor-in-Council', and they are described as a group who may be the personal enemies of the individual interned and who are his enemies in thought and belief.
93. What is this but an attempt to excite hatred against Government
94. I pass on to Extract No. 13. This is an article commenting on the action of the Bombay Government in calling on Mr. B. G. Tilak to furnish security for Rs. 40,000 to be of good behaviour under Section 108, Criminal Procedure Code. The action was, of course, taken by a Magistrate; but the article treats it, and, I do not say unreasonably, as taken under the orders of Government. Here again there is no attempt at legitimate comment or criticism: the writer goes at once to the motive, which he ascribes as dictating the measure, Mr. Tilak is described as 'again in the toils of his enemies' which can only mean Government, and the object of the demand of security is suggested as a desire to save Sir Valentine Chirol (against whom Mr. Tilak had brought a civil suit in England) from being brought to account. Petitioner admitted in answer to a question by me in open Court that this was the suggestion and added that it was a warranted inference. This is a specific imputation of the basest motive against the Bombay Government and could only be dictated by a desire to arouse hatred, contempt, and disaffection against it.
95. Extract No. 11 is of a slightly different nature. It is called 'An outrage in Calcutta' and is a comment on the arrest of the Assistant Editor of the 'Bengalee' and the search of the Editor's safe There is nothing to indicate whether this was under any special enactment or was under the ordinary criminal law. Petitioner admitted in Court that it might be under, the latter. No special motive is assigned (unlike the cases previously dealt with), but the writer after expatiating on the blameless and respectable life of the Assistant Editor says:
'The arrest .... wronged'. (See Extract No. 11, page 542.)
96. It seems to ma impossible for any one to use language such as this without attempting to arouse hatred, contempt, or disaffection against the Government. It was used absolutely without excuse, so far as appears. In every country in the world innocent people are liable on occasion to be arrested or to have their safes and houses searched on suspicion. Can any writer not actuated by a desire to arouse hatred and disaffection describe such a state of affairs as anarchy, worse than savagery or say 'we pay taxes to be wronged?'
97. Extract No. 9 is an article called 'By what it feeds on.' It has nothing to do with Government and is not covered by explanation II It was apparently elicited by a suggestion of an Anglo-Indian paper, that petitioner's publications may not be allowed to use the Emails. It is simply an attack on Anglo-Indians as a class. (The term Anglo-Indian is used here and I think in most, if not all, the articles in the old fashioned sense of an Englishman living in India.) The comparison is between the Englishman and the Anglo-Indian. The writer says:
'The Englishman...tyranny.' (See Extract No 9, page 541.)
98. I do not regard this article as anything like as bad as those with which I have already dealt; but think it is likely to bring Anglo-Indians as a class of His Majesty's subjects into hatred and that it must be held to fall within the scope of clause (c) of Section 4 (1). It is difficult indeed to justify such a general attack on a class by a single article in a journal, however representative of that class.
99. Extract No, 12 is entitled 'Three ways to Home Rule;' and is taken from the Commonweal.' It is a very long article, and much of it is not open to serious attack. I do not agree with the Advocate-General that reasonably construed as a whole, it is an encouragement or incitement to violence, or falls under either clause (a) or (e). But it seems to me to display again the desire to arouse hatred against both the Government and the Anglo-Indian class. The writer says: 'All efforts that Indians make to assert their own rights to gain liberty for the Motherland, to win Home Rule for themselves are resented, and our opponents have recourse to repression and Prussianisra.'
100. Anglo-India and the Government are again treated as synonymous. The usual motive is assigned: 'the vested interests of her (Great Britain's) sons in this land drive out of them their love of liberty and push them on to mean and undesirable means of action.'
101. Further on the foreign character of the Government is emphasised: 'If we are to be tyrannised and lorded over, better that Indians do it---be they Brahmanas or Muslims---than that foreigners do it.'
102. 'Indians......labour.' (See Extract No. 12, page 544.)
103. The article is not protected by explanation I and seems to me to fall under clause (c).
104. Extract No. 14 again is a comment, not on any measures of Government, but on a speech of the Hon'ble Mr. V. S Srinivasa Sastriar objecting to the intervention of newspapers in educational disputes. In combating Mr. Srinivasa Sastri's views the following argument is used: 'Even if the education......despair.' (See Extract No. 14, page 545).
105. Petitioner explains that this is simply a criticism of the educational policy of Government. So much might be said of the crushing curriculum and the early specialization. But the reference to the neglect of the miserable poverty of the boys and their indecent and insanitary surroundings seems to me to go further and to attack Government itself; while the phrase 'in the grip of foreigners' is one only calculated to arouse hatred. In this as in the last-mentioned articles the foreign character of Government is utilised in what I have tried to distinguish as the illegitimate manner.
106. Extract No. 7 is of a very different nature to all the rest, and its construction with reference to Section 4 appears to me to present peculiar difficulty. It is headed 'The latest political crime in Calcutta and its moral' and is dated 8th July 1916. The crime in question appears to have been the assassination of a Bengali Police Officer by anarchists and the writer discusses the character of the assassins, the light in which they are regarded by the public, and the best way to deal with them so as to prevent the recurrence of such crimes. The Advocate General seeks to bring the article under each of the clauses, (a), (c) and (e). I can find nothing in it coming under clause (c), and clause (a) seems to me less applicable than clause (c): I shall, therefore, consider whether the words of the article 'are likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication, or otherwise, to encourage or incite any, person to interfere with the administration the law or the maintenance of law and order.'
107. In this case, intention is entirely immaterial: we have only to consider the natural tendency of the article as it would present itself to an average reader.
108. The writer begins by emphasising the failure which has hitherto attended all attempts to suppress, detect, or punish these political assassinations. He pays a well merited tribute to the courage of Bengali Police Officers. He repudiates all sympathy with the crime on the part of himself or other reasonable Indian politicians. He then proceeds do consider the psychology of the criminal and the best means of dealing with him. This is the important part of the article. The writer passes to and fro from censure of the crime to what I think I may not unfairly call admiration of the criminal. He emphasises the quiet and even courageous determination, of the assassins.' He says: 'Heroism may, according to some people, be too noble a word to apply to men guilty of such ignoble assassinations; but that there was a kind of courage in any case---an utter disregard of personal can-sequences even in these criminals, cannot be denied.' Whence comes this determination? He ascribes it to that fact that they are not ordinary or hardened criminals but idealists of a type. He says that for this reason people pity them as 'youthful and misguided enthusiasts' just as they pity a man who kills a faithless wife for a treacherous, friend. The ideal they held is that of seeing their people occupy a legitimate place in modern history and politics. He concludes that punishment and repression are not the right remedy for this evil; but a recognition by Government and the general public of their ideal (above referred to) as containing nothing wrong or criminal. 'We shall then be able to convince these young men of the folly and futility of their ways.'
109. Now I am very anxious to do no injustice to the writer but I can only understand his article as amounting to this. The political assassins are courageous young men animated by an ideal with which every Indian must sympathise, and with which no reasonable man of any other race could quarrel. The Government and public should recognise them as such and in place of punishing them, endeavour to convince them of the 'folly and futility' of their ways (i.e., the assassination of their heroic fellow countrymen in the C. I. D.). This seems to me most pernicious and writing which must tend encourage political assassination by removing public detestation of such crimes, 'New India' is presumably read by numbers of excitable young men animated (and not unnaturally) by the same ideal which the writer ascribes to the assassins, but which it is impossible for any right-minded person to connect with their crimes. Such young man are practically told that the assassins ape pursuing the same ideal as themselves with singular courage and disregard of self: and that such criminals should not be punished but convinced of the folly of their ways. The article presents the assassins to such young men (and to the public generally) in a far mere favourable light than any ordinary person would have viewed them in: and although it may not amount to incitement, it certainly seems to me to give encouragement to the commission of crimes which undoubtedly falls within clause (e) of Section 4 (1).
110. As I have already said; we have nothing to do with the intentions of the writer. He may be perfectly sincere in reprobating the crime, while sympathising (as he undoubtedly does) with the criminal; We have merely to consider the effect of his writings.
111. I can only conclude that this article falls-within clause (e) of Section 4 (1).
112. I have now dealt with 10 of the 14 extracts, all of which seem to me to fall in one way or another within the mischief of Section 4 (1) of the Act. I propose to briefly dismiss the others. It is not necessary to find that all the articles specified are of the same nature and the remaining articles are such as, by them selves, to form at best a very doubtful basis for an order of forfeiture.
113. Extract No. 8 (Ave Caesar) is a protest against the order of the Bombay Government excluding petitioner from that Presidency: and I do not feel satisfied that we should be right in inferring a desire to arouse hatred simply from the single use of the them tyranny and the reference to the Royal Arms.
114. Extract No. 5 is taken from the Herald, a London newspaper: and is an impassioned defence of the conscientious objectors to military service. I fail to see how it has any tendency of the nature specified in clauses (a), (c) or (e) under all of which the learned Advocate-General would bring it.
115. Extract No. 3 is a comment on a serious dacoity in a village in Bhadrachalem Taluq, of the Godavary, Agency. It is argued that the helplessness of the Villagers to protect themselves is due to the operation of the Arms Act. As a matter of fact, it is now admitted that the Arms Act does not apply to the Agency tracts and so had nothing whatever to do with the case under discussion. Nevertheless, the article is a comment on the operation of an Act and seems to me to fall under explanation II. It is a foolish article but I am not prepared to say that it was written With the intention of exciting hatred of disaffection.
116. Extract No. 4 series consists; of 7 letters and articles dealing with trouble that has recently arisen in Madras owing to a popular idea that the reservation of Railway compartments for Eurasians and Europeans had been declared illegal. There is very littler in the series except an Editorial note appended to & letter No. 4 (c). The correspondent had stated that lie entered a reserved compartment but left if when ordered to do 88: by the Station Master and threatened with prosecution; The Editors says But why did you get out. It is this submission' to illegality that causes half the troubles from which the Indians suffer.'
117. Now the sole question is, what is the natural result and tendency of these words and how; are they likely to be understood by the readers of the paper.
118. Petitioner explains: that all she meant was that the correspondent should not have got out until the Railway Officials bad used such show of force, as would justify him in bringing a test case to question the legality of the reservation. If that were the meaning of the words, I do not think, that could fairly be brought within any of the clauses of Section 4 (1), But is that the sense in which, they would be understood by the ordinary reader? I cannot find anything in the series of articles remotely suggesting the testing of the legality of the Railway. Company's action in this way. On the contrary, the three preceding articles all speak of the illegality of the reservation as if it were beyond question, It is clear from the series that there was a great deal of popular excitement at the time which culminated in a riot [vide Extract No. 4 (g)]. It seems to me that it was the duty of any newspaper in counselling such modified resistance to the Railway Officials as would afford basis for a test case to make its meaning clear. Otherwise there was every danger of the words being construed as advice to resist by all possible means any attempt at eviction and if such were the tendency of the words they would fall within clause (c).
119. I am inclined to hold that the Editorial note to this article Extract No. 4 (d) does fall within the scope of Section 4 (1): but that the rest of the series do not.
120. On the findings I have set forth above, I am of opinion that the petition should be dismissed and the order of forfeiture should stand.
Seshagiri Aiyar, J.
121. The Press from which 'New India' is printed has been in existence for over half a century. In it the 'Madras Standard' was printed till July 1914. Mrs. Besant purchased the printing press as well as the good-will of the 'Madras Standard' on the 14th of that month'. From the 1st of August 1914, the name of the paper was changed into 'New India.' Mrs. Besant made the usual declaration under Section 4 of Act XXV of 1867 on the 2nd of December 1914, It is admitted that no security was demanded from the petitioner at that time. On the 22nd of May 1916, the Chief Presidency Magistrate, Madras, informed her: 'I hereby cancel my order, dated 2nd December 1914, dispensing with security in respect of the 'New India Printing Works' and require you under Section 3 (1) of Act I of 1910, to deposit security for Rs. 2,000.' It may be taken from this notice that the Chief Presidency Magistrate dispensed with the deposit of security at the time of the declaration and that he recorded his reasons under the proviso to Section 3 of the Press Act when doing so. The security was furnished, and the paper continued to be published as before until the 2th of August 1916, when the Local Government acting under Section 4, clause (1), of the Press Act declared that 'the security deposited in respect of 'The New India Printing Works, Madras,' and all copies of New India' wherever found to be forfeited to His Majesty.'
122. The present petition was, filed under Section 17 of the Act to revise the said order. The first point taken by Mrs. Besant was that the order of the 22nd of May demanding security was illegal. Although there is a separate petition complaining against the levy of the security, the question has been raised in this case, presumably on the ground that if the Magistrate was wrong in his demand, there was nothing to forfeit and that consequently the order of the Government was void and of no effect. I have discussed the -legality of the demand at some length in my judgment in Criminal Revision Case No. 661 of 1916 : See 37 Ind. Cas. 607 Infra.---Ed. I adopt the conclusion' therein come to. The further point is, that even if the demand of security was illegal, whether that question is open in an application presented under Section 22 of the Press Act. The answer to this question depends upon the construction to be placed on the Section. That Section lays down in. general terms that a declaration shall be Conclusive evidence as against all persons that the forfeiture has been incurred. I cannot accept the learned Advocate-General's suggestion that this clause must be read as declaring that the forfeiture has been legally made. It only enacts that the declaration is notice to all persons that the Government have declared the forfeiture. But the matter does not end here. The succeeding clause of Section 22, which empowers the High Court 'to call in question any proceedings purporting to be taken under the Act,' leaves little room for doubt that our powers are restricted. The Section refers back by the expression such application as aforesaid' to Section 17. Under that earlier Section, the grounds of interference are confined to holding that the newspaper did not trangress Section 4, Sub-section (1). A party is not entitled to Complain under that Section that Section 3, Sub-section (1), has been violated. Mrs. Besant suggested that our rights of interference are not controlled by the grounds that are open to the party. But the foundation of our jurisdiction under the Act is Section 17. It is a statutory right that we are asked to exercise; and we can grant relief only in respect of the grounds on which the party can seek our intervention. That is what Section 19 distinctly lays down That is also the view taken by the learned Chief Justice of Calcutta and by Mr. Justice Stephen. It is true that the language of Section 22 reads as if all proceedings under the Act were liable to be revised by us. The apparent intention of the Legislature was that only such proceedings under the Act as lend themselves to attack on the grounds mentioned in Section 17 should be revised by the High Court. It may be said that the Legislature must have known that proceedings under Section 3 cannot be questioned on such grounds. I do not say that the language employed is apt. On the other hand the other construction would result in not attaching any meaning to the words 'on such application as aforesaid' in Section 22. The use of the expression no proceeding purporting to be taken under the Act' may have been inserted ex majori cautela. We have to choose between not giving any meaning to a very important clause, and regarding another clause as somewhat inadvertently expressed. It was pointed out by Coleridge, J., in R. v. East Ardsley (1850) 14 Q.B. 794, that a Court of Law should reject words as surplusage if it appears that, by attempting to give a meaning to every word, we should have to make the Act of Parliament insensible.' Lord Selborne used similar language. See Hough v. Windus (1883) 12 Q.B. D. 224 : 1 Morrell 1. The true aim to be kept in view is to construe the Statute in such a way as to carry out its main intention. In doing that, inaccurate and loosely worded phrases have to be subjected to some pruning and adjustment. Bearing these propositions in mind, I am of opinion that proceedings under Section 3 are not subject to our revisional jurisdiction under Sections 17 and 22 of the Press Act.
123. The next point relates to the construction of Section 4. Before dealing with the arguments on behalf of the Crown, I shall consider a preliminary objection raised by the petitioner. It was broadly contended at the outset that the whole Press Act was ultra vires of ^he Indian Legislature. But when it was pointed oat that the petitioner herself invoked our interference under Section 17 of that Act, she contended that Section 4 of the Act at least was ultra vires. It was not Mrs. Besant's case that the Press Act offends any Act of Parliament. Her point was that the provisions of Section 4 affected 'the unwritten laws and constitution of the United Kingdom of Great Britain and Ireland, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom or the sovereignty or dominion of the said Crown over any part of the said territories.' She argued that to declare property to be forfeited without first obtaining the decision of the Civil Courts in that behalf was an act of confiscation which interfered with the allegiance of the subject to the Crown. Mr. Justice Norman's observations in the Wahabi case In the matter of Ameer Khan 6 B. L.R. 392 were relied on. The learned Judge, after referring to the Great Charter and the Bill of Rights, said: Now if it be true, as laid down in Calvin's case 77 E. R. 377, that protectio trahit Sub-jectionem et subjectio protectionem, that allegiance and protection are reciprocally due from the subject and the Sovereign, it is evident that the strict observance of the laws which provide for such liberty and security ensures the faithful and loving allegiance of subjects.........No man can study the history of England, or can read the great judgment passed by the High Court of Parliament by the Bill of Rights on King James II, without seeing that on the faithful observance by the Sovereign of the unwritten laws and constitution of the United Kingdom, as contained in the Great Charter and other Acts which I have mentioned, depend in no small degree the allegiance of the subjects. It would be a startling thing to find that rights of so sacred a character could be taken away by an act of the subordinate Legislature. It would be strange indeed it a great popular' assembly like the Parliament of England had put into the power of a Legislature which has not; and in the nature of things could not have, any representative character the power of abrogating or tampering with such fundamental laws.' The question in that case related to the right of the High Court' to issue a writ of Habeas Corpus to produce a person detained in custody. It was held that the right of the subject to move the High Court was not taken away by any Act of the Indian Legislature. I do not think the observations above quoted can affect the present case. As Lord Justice Buckley pointed out in West v Gwynne (1911) 2 Ch. 1, there is no presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, according to the learned Lord Justice, interfere with existing rights. An Act of the Legislature in this behalf cannot be regarded as interfering with the allegiance of the subject: Markby, J., said in the appeal from the decision of Mr. Justice Norman in the same case [In the matter of Ameer Khan 6 B. L.R. 459, that an Act of the Legislature does not affect the prerogative of the Crown and conversely the allegiance of the subject merely because it affects the liberty of the subject. The foundation of all criminal laws in India would be shaken to its root, if it; is held that the Legislature has no power to enact laws depriving the subject of his liberty. So also with reference to property. It is possible to argue---I do not wish to commit myself definitely to an opinion en this matter---that any Act of the Legislature' which permanently deprives the subject of his property without' vesting in a judicial' tribunal the power to pronounce on the legality or justice of the step taken may by said to strike at the root of the allegiance due from the subject: This question requires a great deal more argument than has been addressed to us; but under the Press Act; Section 4, the subject is not deprived of the right of showing that the forfeiture has not been incurred. Instead of taking the decision of the Court' first and then declaring the forfeiture, the process has been reversed; such a procedure cannot be said; to affect the allegiance of the subject. The Indian Legislature has enacted other pro visions of a similar nature, e. g., Sections 88 and 89 of the Code of Criminal Procedure. I am of opinion that Section 4 is not ultra vires of the powers of the Imperial Legislature. Mrs. Besant seemed to suggest that she carried with her to India her inherent rights under the Bill of Rights and the Great Charter; but she did not press the point.
124. I now turn to the construction which the learned Advocate-General sought to put on the various Sub-clauses of Section 4 (1). I thought, at first, that he was asking us to put a very illiberal construction upon them; because, if accepted, it would make the publication of any respectable newspaper impossible;. but on thinking over the matter, I am not sure that I have been fair to the learned Advocate-General. I do not think that the seriousness of the consequences is the right test We have to administer the law as we find it. In my opinion, there is great force in the arguments for the Crown, although I do, not accept them in their entirety. The language of the Section is this: containing any words, signs or visible representations which are likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication or otherwise.' The word likely refers to the probable inference that may be drawn; when that word is followed' by the words 'may have a tendency', the contention that the barest possibility of the words, etc., conveying a particular impression was contemplated seems not unreasonable. I asked, in the course of the argument, whether the probability or possibility should not be reasonable. The learned Advocate-General, replied that a possibility is not generally reasonable. I do not think the word reasonable would be misapplied even to a possibility. I am not prepared to hold that what the Legislature, had in mind was an Unthinking, perverse and blind possibility and not a consequence, however far-fetched and remote it, might be, which can be deduced by a reasonable human being. The process by which the inference is to be drawn is very tightly worded. When the probability on possibility is to be reached 'directly or indirectly, whether by inference, [suggestion] allusion, metaphor or implication or otherwise,' it looks as if all egress is barred. The word otherwise is the finishing stroke. It is no wonder that the learned Chief Justice of the Calcutta High Court pronounced the right vested in the High Court as illusory.
125. If the language had stopped here, I would have considered it a waste of time to examine the articles complained of, because by no stretch of ingenuity can they be said not to contravene one or the other sub Sections of Section 4 (1). But there is explanation II, and it is mainly with reference to its language that the keeper of the press can expect to get some redress. The learned Advocate-General drew our attention to the difference in language between the explanations to Sections 1241A and 153A of the Indian Penal Code and the explanation to Section 4 of the Press Act. The latter is impersonal, whereas the former apparently refers to the motives and intentions of the offender. There is much force in this observation; At the same time, I am not prepared to hold that the intention of the writer is of no consequence in applying the provisions of the Press Act, I adhere to the opinion which I expressed during the course of the argument that while the operative portion deals purely with the language employed, divorced from considerations of motive or intention, explanation II furnishes a ground of exemption, if it can be shown that there was no intention to excite or to attempt to excite hatred, contempt or disaffection. It is true that in the vast majority of cases the intention must be gathered from the language employed, but it is possible to show that what prima facie appears objectionable should not be given the meaning attributable to the words employed. The difference is very thin no doubt; but I think that the Legislature was contemplating in explanation II the possibility of proof by the person proceeded' against that the intention to create disaffection was not in the mind of the writer. The other alternative would c impel us to hold that whatever the motive, if the words employed have the remotest tendency to make a single unreasoning individual disaffected the press should be forfeited. In other, words, it is the forbearance of the Grown front taking steps under the Act that gives life to a respectable newspaper and not any protection which has been introduced into the Act by the explanation. I am unwilling to proceed on this basis.
126. The meaning to be attributed to the words without exciting or attempting to excite hatred, contempt or disaffection' is not-free from difficulty. The learned Advocate-General' relied upon the summing up of Strachey, J., in Queen-Empress v. Bal Gangadhar Tilak 11 Ind. Dec. 656 in explanation of the various terms I may say at once that I agree with the conclusion that the word disaffection is used in the sense of disloyalty. That was how Sir Gomar Petheram understood it in Queen-Empress v. Jogendra Chunder Bose 9 Ind. Dec.470 and that was also the view taken by Mr. Justice Strachey. The learned Judge's interpretation of the words hatred and contempt' requires more examination. This is what he says: 'But if he goes beyond that, and whether in the course of comments upon measures or not, holds up the Government itself to the hatred or contempt of his readers,---as for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people,----then he is guilty under the Section, and the explanation will not save him.' With' a good portion of the sentiments expressed in this sentence, I agree. Some qualifications are, however, necessary. The times have changed a great deal since the learned' Judge delivered his charge. If I may use a very hackneyed expression, the angle of vision has changed largely. In a solemn document issued under the signature of a Viceroy, the legitimacy of the claim to have political autonomy in India under certain conditions was discussed. This implies that the time may come when Indians can be trusted to largely administer the affairs of their own country. The process may have to be gradual. But when the possibility is recognised, one cannot get away from the fact that it is the administration of non-Indians that would be replaced in the endeavour to reach autonomy. Consequently, when the learned Judge says, 'dwelling adversely on its foreign origin and character' would make a man guilty of exciting hatred and contempt, I am not prepared to accept it, without qualification. In my opinion, suggestions to the effect that an indigenous agency would be more suitable in certain departments of the administration and should be more largely employed in others should not be regarded as exciting hatred or disaffection. Of course, language may be employed which may render this advocacy dangerous. But prima facie I would be unable to discern in criticisms of this kind an intention to excite hatred or contempt. I would also qualify the phrase which says that attributing indifference to the welfare of the people would amount to sedition. In Reg. v. Alexander Martin Sullivin 11 Cox Cr. L.C. 51. Fitzgerald, J., told the Jury that a. journalist may canvass and censure the acts of Government and their polity' Piggott's case 11 Cox Cr. L. C. 60. The learned Judge also said: A writer may criticise or censure the conduct of the servants of the Crown or the acts of the Government---he can do it freely and liberally, but it must be without malignity and not imputing corrupt or malicious motives. The law does not seek to put any narrow construction on the expressions used and only interferes when plainly and deliberately the limits are passed of frank and candid and honest discussion.' In Sullivan's case 11 Cox Cr. L. C. 51, the same learned Judge cautioned the Jury thus: 'It is not mere strong language, such as desecrated Court of Justice,' or tall language, or turgid language that should influence you. You should, I repeat, deal with the articles in a free, fair, and liberal spirit. You should recollect that to public political articles great latitude is given. Dealing as they do with the public affairs of the day such articles, if written in a fair spirit, and bona fide, often result in the production of great public good. Therefore, I advise and recommend you to deal with these publications in a spirit of freedom and not to view them with an eye of narrow criticism.' I do not see why these salutary tests should not be applied in considering whether the articles in question are protected by the explanation. If criticism attributing indifference to the welfare of the people is couched in language which imports corrupt or malicious motives, the writers cannot escape. But if it aims only to draw attention to a weak point in the administration in the hope that the criticism may lead to the redress of grievances or the removal of a disability, I do not think the writing can be condemned. Subject to these reservations, I accept the summing up of Mr. Justice Strachey as fairly accurately explaining the words I have referred to.
127. The next argument dealt with the meaning to be attached to the various clauses of Sub-section (1) of Section 4. Before Mrs. Besant addressed the Court, in answer to a suggestion from the learned Officiating Chief Justice, the Advocate-General pointed out under what clauses the offending articles included in the declaration of forfeiture fell. I shall discuss the articles separately later on. At present, it is enough to say that almost all the articles were regarded as coming under Section 4(1)(c), while (a) and (e) were added to a few. The important question which might have necessitated a great deal of discussion was fairly solved by the admission of the learned Advocate-General that he had instructions to say that the discussion as to 'Home Rule' was not per se objectionable. A reservation was made that the discussion might amount to bringing into hatred or contempt the Government established by law in British India, if the methods advocated to gain 'Home Rule' and the language employed in pushing it forward were calculated to disseminate hatred or contempt. There can be no doubt that two essentials should be kept in mind in asking for changes in the machinery of Government. The allegiance to the throne and person of the Sovereign should be held as inviolate; and there should be no suggestion that the connection which makes India an integral part of the British Empire should be severed Within these limits, it is permissible to ask that the details of the administrative machinery should be re-adjusted to meet the exigencies of the times, A demand for change there will be in the most perfect form of popular Governments. That demand ex-necessitate would show that the existing machinery is out of gear in some particular or other. In one sense such a criticism may excite disaffection towards the Government established by law. It is conceivable that there may be even dislike; but if the object is to re-arrange the personnel and even in a measure substitute new classes of men in the places occupied by the old, provided the advocacy is attributable to a genuine desire to strengthen the feeling of loyalty and the link that binds the Empire, there can be no room for saying that hatred, contempt or disaffection was preached. Mr. Justice Batty has given clear expression to this idea in Emperor v. Bhaskar Balvant Bhoputkar 8 Bom. L.R. 421. This is what he says: 'One particular set of persons may be open to objection, and to assail them and to attack them and excite hatred against them is not necessarily exciting hatred against the Government because they are only individuals, and are not representatives of that abstract conception which is called Government. Individuals come and go, but the Government is supposed to remain,' and again 8 Bom. L.R. 441., the learned Judge says: 'Changes in policy and changes in measures are liable to criticism, and to criticise and urge objections to them is a special right of a free press in a free country. The British nation has always specially boasted that it bad a free press but the freedom of that press is conditional upon one thing; every liberty is given to all men to express their opinions, so long as they do not misuse or abuse that power to the injury of others, including, among injuries to others, injury to the State. It is only on that condition that it is possible to have a free press.' I entirely agree. Stephen in his Digest of the Criminal Law says: 'An intention to show that Her Majesty has been misled or mistaken in her measures, or to point out errors or defects in the Government or constitution as by law established, with a view to their reformation, or to excite Her Majesty's subjects to attempt by lawful means the alteration of any matters in Church or State by law established, or to point out, in order to their removal, matters which are producing, or have a tendency to produce, feelings of hatred and ill-will between classes of Her Majesty's subjects, is not a seditious intention.' The demand that there should be alterations in the State is one of those claims which every law-abiding subject interested in the well-doing of the Government might legitimately advance. I am not to be understood as suggesting that the expression 'Government established by law in British India' applies only to British Sovereignty and the British connection. I adopt Mr. Justice Strachey's definition of these words. He says: 'it means, in my opinion, British Rule and its representatives as such, the existing political system as distinguished from any particular set of administrators.' It is the system of Government that Section 4(1)(c) contemplates, and not the persons who for the time being carry on the details of the administration. Clause (a) does not require much comment. A great deal will depend upon the language used. Clause (e) is not easy to define. The objects aimed at must be those which would render friendly co-operation between the different races living in India impossible. The language mast be such as to lead to the breaking of the peace. Otherwise, any argument tending to suggest that particular persons are not carrying on the machinery of Government efficiently may be said to incite the people to interfere with the maintenance of law and order. Dissatisfaction with men and measures is believed in many quarters as a healthy sign of progress. It is not necessarily incompatible with a desire not to interfere with the administration of the law or with the maintenance of law and order. I propose to keep before me these principles in judging of the character of the articles complained of.
128. On one other Section of the Act, I shall say a word, before discussing the articles. When Mrs. Besant wanted to put in copies of other articles which appeared in the ' New India' newspaper, the learned Advocate-General contended that it is only the Crown that is entitled to this right under Section 20 and not the petitioner; I do not think such a contention can be upheld. The more serious question under the Section is whether articles evidencing the general policy of the paper can be received in evidence. In my opinion, there must be some connection between the subject-matter of the articles tendered and of the articles which are objected to. The articles are to be received 'in aid of the proof of the nature or tendency of the words, signs of visible representations contained, in such newspaper', Speaking for myself, I would have rejected some of the articles tendered on either side as being unconnected with the views taken exception to. But, however, we have let in only such of them as either bear on the general policy of the paper or are connected with the subject-matter of the impeached articles. I am content to accept the decision come to by the learned Chief Justice on this question.
129. Now, I proceed to deal with the articles.
130. Extract No. 1---I gave expression, during: the course of the argument, to my ideas-regarding the inappropriateness of the language employed in this letter. It is ill-balanced and foolish. I am not at the same time, able to attach to the language the sense which the learned Advocate-General; imputed to it. To one reference in this letter, he attributed a meaning which I cannot but regard as far-fetched. This reference is to the 'grim contest between Hiranya and Prahlada.' I am afraid I must adopt the role of the Puranic storyteller for the nonce. The story is very familiar to the readers to whom, in the main, the paper is addressed. Hiranya was not a bad king. At least, I am not aware that it is with reference to his misrule the story has been told. Hiranya, in the Purana, symbolises the egotistic self. He is his own (rod. He says to himself; and to others that there is none greater than himself: There is no God to whom Hiranya is accountable. His son personifies the abnegation of self;---the subjection of the man to the dictates of the Supreme. From his cradle he lisps the name of God. In school, he invokes God's name. He infuses this spirit into his fellow-students. The teacher is much upset and complains to Hiranya. At first, the father is contemptuously tolerant, then he coaxes his son into accepting his dogmas, then there is threat violence afterwards, followed by every attempt to be rid of the stripling who defies all his cherished ideals. Even here, the father, by instinct of nature, resists the temptation to kill the boy himself. He employs other agencies. Even the fond mother is pressed into service; but all the machinations prove of no avail. The patient trust in God and the uncomplaining tenacity of purpose so exasperate Hiranya that he resolves to lay his own hand on his son. Before he takes the fatal step, he asks his son to point to the place where the God he worships can be found. The boy, boldly replies, 'He is everywhere,' The irate father asks, 'Is He in this pillar?' 'Yes, He is everywhere' is the quiet answer. Then the father kicks the pillar violently saying, 'let Him come out, if He is there'. God does come out of the stone pillar and destroys Hiranya. This is the story recounted everywhere to prove the omnipresence of God and the immanence of righteousness and virtue. In the Hindu theology, Prahalada is the foremost, of religious devotees.
131. Now in this story, Prahlada does not wage war against Hiranya. He does not kill his father. Prahlada is in the letter intended to represent the Indian; and Hiranya, the Anglo Indian. It is clear, therefore, that the people are not incited, to violence against the Anglo-Indians. If they behave like Prahlada, they must leach uncomplaining, lives, leaving the justice of their cause to be vindicated in the fulness of time. I do not say that a certain amount of dislike will not be engendered by, the comparison; but I do not think that hatred or contempt will be inculcated, by, the reference, if that story is understood rightly. Nor do I think that the Anglo-Indian will be incited to hate the people by his being, depleted as Hiranya. The cultured few who represent that class are not likely to be led into a feeling of hatred or contempt by hysterical writing off this kind. At the same time, I cannot but condemn, in strong terms, the latitude which the writer has, allowed himself in describing men and measures. Mrs. Besant, like most others, might exclaim, 'Save me from my friends.' She has rightly, taken the responsibility for this effusion on herself, and while I am unable to see that the article is of covered by any, of the clauses of Section 4 (1), I cannot help saying that it is a mischievous and an ill-balanced production.
132. Extract No. 2.---This letter lacks the adjectival exuberances which characterised the previous one; but portions of it and more culpable than the former. The paragraph in page 15 beginning with line 29 and ending with line 35 is unjustifiable. I think it is calculated 'to bring into hatred or contempt' the Government of Madras. Prussian aggression' and 'atrocity in civic life in peaceful times' are expressions which cannot be condoned. Further, the sentence 'that the missionaries are the parasites of the Government' is unwarranted. I hold that portions of this letter come under Section 4(1)(c). I do not think Sub-clause (e) applies.
133. Extract No. 3.---I can see nothing wrong in this article. It is true, as pointed out by the learned Advocate-General, the article ignores the fact that the Arms Act does not apply to the Agency Tracts. But the subject-matter of the grievance is not what affects these tracts. The general sentiment is in no way incompatible with perfect submission to everything that the most fastidious can insist upon as being due from the subject to the Government.
134. Extract No. 4.---Here again, there has been a misunderstanding of the law as declared by the Punjab Chief Court. It is extraordinary that an overruled judgment' should have been allowed to be the basis of comment so long. The learned Advocate-General has informed us that the decision in Mathradas Ramchand v. Secretary of State 5 S. L.R. 140, on which these articles were based was reversed on appeal in April 1913 Mathradas Ramchand v. Secretary of State 7 S. L.R. 42. The articles were all written since the date of the appeal decision. There is no doubt that there has been a great want of judgment in the writer not having taken care to ascertain whether Mathradas Ramchand v. Secretary of State 13 Ind. Cas. 237 was modified or set aside. I say nothing about the correctness of the law as expounded on appeal; but granting that the critic ought to have exercised more care and caution, I fail to see how hatred, contempt or encouragement to interfere with the administration of the law can fairly be attributed to these articles, I think they are covered by the explanation. The editorial note finding fault with the persons who walked out is only an exhortation to submit themselves to some personal inconvenience in order that the legality of the procedure adopted by Railway Companies may be tested in a Court of Law. I hold that these articles do not offend any of the provisions of Section (1).
135. Extract No. 5.---This is a quotation from 'Herald,' London. At first, I was inclined to think that its place under the Home Rule Section' was objectionable; but on carefully reading it through, I find that nobody is held up to hatred or contempt and none is encouraged to break the law. The burden of the article is 'the price of liberty is death.' It is a call to make heavy sacrifices; not an exhortation to use violence, but a call to stand at the post of duty even to the point of death, if the person is in earnest in securing rights. The theme is in the main religious. The martyrdom of Catholic?, Protestants, and Atheists is extolled. They suffered death to testify to the strength of their conviction. It is the spirit of self-sacrifice that the 'Herald' preached to the pacifist who refused to join the army corps. In inserting the article under the heading 'Home Rule,' the person responsible for the selection wanted those that advocated 'Home Rule' to act in this spirit. I am unable to see in this article anything which brings it within the mischief of Section 4 (1).
136. Extract No. 6.---This is strong writing. But I am unable to detect anything in it which is calculated to bring the Government into hatred or contempt. The word Prussianism has been objected to. In this article, it is applied to a particular journal and not to any class. I hold this article is not obnoxious to Section 4 (1).
137. Extract No. 7.---As was suggested by the learned Officiating Chief Justice during the course of the argument, I read this article once again, forgetting, for the time being, that it was written by Bepin Chandra Pal. I am not able to detect its sinister import. If one reads a great deal between the lines and then begins to argue that the article is dangerous, he must be prepared for the answer: You are not condemning my words, but words which you are interpolating.' On the face of it, the writer points out how the political anarchists have not been brought under the grip of law, notwithstanding the severe measures taken to put them down. He suggests a new mode of defiling with their crimes. I am not able to spell out of this article an intention to extol anarchism and to invite unwary youths to commit acts of violence with impunity. I do not think that Sub-clauses (a), (c) arid (e) of Section 4 (1) apply to this contribution.
138. Extract No. 8.---I hold this article comes under Section 4(1)(c). Mrs. Besant said that she wrote it under great provocation. That is apparent. To say that the escutcheon' of the Bombay Government should have the words Justice gagged, sable and gules,' and the legend: 'My strong arm and your wrong,' is calculated to bring that Government into hatred and contempt.
139. Extract No. 9.---This article extols the Englishmen at home at the expense of those that have come out to India. I do not think this article contravenes Section 4(1)(c).
140. Extract No. 10.---This refers to the probable result of an internment order. The reference to four men who are his personal enemies and 'who are his enemies in thought and belief' is undoubtedly misconceived. I am not prepared to say that the characterisation of the personnel of the Government as the personal enemies of the writer is calculated to excite contempt or hatred. I do not consider this article comes under Section 4(1)(c).
141. Extract No. 11.---I am satisfied that this article comes within the purview of Section 4(1). The statement that the arrest which was conceded to be legal is 'truly unlawful' and breaks 'the sacred Law of Justice which holds society together,' is meaningless. But the sting of the article is in its tail: 'Civilisation does not protect us; we should be better off in a state of savagery for then we should be on our guard, we should carry arms, and protect ourselves. We are helpless; we pay taxes to be wronged.' The appeal to barbarism may incite violence, and the sentence that we pay taxes to be wronged' is calculated to bring the Government into contempt, by suggesting that the taxes are utilised for oppression. I think this article is within Section 4(1)(c) and (e).
142. Extract No. 12.---This long extract from the 'Commonweal', is not really objectionable. The reference to the Gita and the appeal to evince the true Kshatriya spirit are not intended to create disaffection. It is intended to whip up laggards. The gate of heaven, in this case, being the gate to 'Home Rule', the exhortation is to the people to come forward at once, and not to lose the opportunity of gaining their rights. The suggestion is not to fight, but to take time by the forelock. The word Prussianism' seems to have a fascination to writers of this school, but I am inclined to think that these men do not use the word with a knowledge of what it imports, Such catchwords are the stock-in-trade of writers aspiring to write to newspapers and other periodicals The statement that 'political petitioning and prayer should be abandoned' is not an appeal to give up constitutional methods, but an advice to proclaim rights without following it up by deputations for their enforcement. I do not think this article is impeachable under Section 4(1)(c) or (e). I certainly see nothing in it to bring it under Section 4.(1)(a).
143. Extract No. 13.---Portions of this article are clearly objectionable. The suggestion that the Bombay Government is in league with Sir Valentine Chirol is certainly calculated to bring that Government into contempt. I hold this is covered' by Section 4(1)(c).
144. Extract No. 14.---This article; was written after the extraordinary meeting of the Senate of the Madras University. I am not able to see in it anything which brings it within Section 4(1)(c). The statement about insanitary surroundings refers to the agitation to provide hostels.
145. Apart from the legal tests, it is not easy to lay down any absolute Rule by which the culpability or otherwise of these articles can be judged. Personal inclinations would necessarily play a great part in passing judgment upon a question of this description. Experience of life, and a knowledge of the modes of thought and of the activities which actuate men who, though engaged in politics, are honestly devoted to their Sovereign and are unquestionably endeavouring to promote good-will and a closer understanding between the rulers and the ruled,, may also serve as guides. Even here temperament would play no mean part. Considerations like those I have mentioned have weighed with me in the main.
146. To summarise my conclusions I hold that Extracts Nos. 2, 8, 11 and 13 contain statements and sentiments which are calculated to bring the Government established by law into hatred or contempt and to interfere with the maintenance of law and order. It is not for me to say whether the punishment inflicted is necessary to expiate the offence. We have no right to apportion the quantum of punishment. I, therefore, hold that Mrs. Besant has not shown that the extracts I have mentioned 'did not contain any words, signs or visible representations' of the nature described in Section 4, Sub-section 1. At the same time, I am clear that none of the articles to which our attention has been drawn has been written in a spirit of disloyalty to the Sovereign. If I may say so, they all aim at making India better understood and better appreciated. They undoubtedly very freely express disapprobation with the existing machinery of the Government. These comments, according to Mrs. Besant, were intended to make British Rule in India more firmly established and to remove causes of discontent which may have a tendency to undermine the British connection. I have little doubt that this has been the policy of the paper; but what we have to see is, not whether the intentions of the Editor are praiseworthy and the articles themselves may ultimately help good Government and law and order, but whether the articles taken exception to are not obnoxious to Section 4 of the Press Act. Viewing the four articles I have referred to from this point of view, I am of opinion that they do offend the Press Act. The petition must, therefore, be dismissed.