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Dhirendra Nath Sen and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1938Cal721
AppellantDhirendra Nath Sen and anr.
RespondentEmperor
Cases ReferredR. v. Sullivan
Excerpt:
- .....within the mischief of section 124-a of the penal code. in form, it is an onslaught upon a certain education bill, and the contention on behalf of the prosecution, which has been accepted by the court below, is that it excited hatred, contempt and disaffection towards the ministry in bengal and was therefore seditious. an article is in law, seditious when it brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in british india. government, in this connexion, denotes the person or persons authorized by law to administer executive government in any part of british india. the question before us then is whether the present article can fairly be construed as an attempt, successful or not, to bring into.....
Judgment:

Bartley, J.

1. Appellants, the editor, and the printer and publisher of a paper called the Hindusthan Standard, have been convicted of sedition, in respect of an article published in the issue of that paper dated 27th November last. The sole question for decision in this appeal is whether the article falls within the mischief of Section 124-A of the Penal Code. In form, it is an onslaught upon a certain Education Bill, and the contention on behalf of the prosecution, which has been accepted by the Court below, is that it excited hatred, contempt and disaffection towards the Ministry in Bengal and was therefore seditious. An article is in law, seditious when it brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in British India. Government, in this connexion, denotes the person or persons authorized by law to administer executive Government in any part of British India. The question before us then is whether the present article can fairly be construed as an attempt, successful or not, to bring into hatred or contempt, or to excite disaffection towards persons authorized by law to administer executive Government. Further, as the attack is upon the Ministry, that question involves the point whether the Ministry are persons-authorized by law to administer executive Government. If they are not, an attempt to excite hatred, contempt or disaffection towards them would not be an offence under Section 124. A of the Code.

2. Under Section 49, Government of India Act, the executive authority of a Province (which I take to mean the same thing as legal authority to administer executive Government), shall be exercised by the Governor either directly or through officers subordinate to him. All such action of the Government shall, under Section 59, be expressed to be taken in the name of the Governor. The rule of the Council of Ministers is defined in Section 50 as being 'to aid and advise the Governor in the exer-cise of his functions,' except in so far as he is given discretionary powers under the Act. It may further be taken that the Governor is bound to follow the advice of his ministers in certain cases, that is to say 'in cases other than those in which he is required by the Act to exercise his own discretion, or where in his opinion the advice is inconsistent with the special responsibilities committed to him under the Act. On the other hand, the Governor chooses his ministers, who hold office during his pleasure. He is empowered to allocate among them the business of the Government, and to regulate the transmission to himself of information, or of matters under consideration by a minister which may involve any special responsibility of the Governor. There is no specific provision in the Government of India Act vesting the ministry with executive functions. On the other hand such function a 'shall' in the words of the Act, 'be exercised by the Governor either directly or through officers subordinate to him.' The position seems to be that unless the Ministry can be held to consist of officers, subordinate to the Governor within the meaning of the Act, it cannot exercise executive functions. I entertain the gravest doubt whether any such description is applicable to a ministry chosen from the elected representatives of the people under a democratic constitution. There is no difficulty in the position that ministers are members of the Government. There is no difficulty in the position that they are servants of the Crown. It does however seem to me to be difficult to maintain the position that a ministry, chosen from the elected representatives of the people, and empowered, within, prescribed limits, to dictate the policy of the executive Government, is in any real sense a body of officers subordinate to the Governor.

3. On the merits of this appeal, it is necessary to examine the article in detail. It is, as I have said, an attack on an Education Bill. What appears from the evidence is that a draft bill, the Bengal Secondary Education Bill, had been sent for consideration in certain interested quarters. Its provisions, thus made public, inspired the article. There is no evidence before us as to the nature of the bill, except what can be derived from the article itself, and we are informed from the Bar that it has been dropped. The article, which is headed 'Where is Bengal today?' begins rhetorically 'Is Bengal dead? Has she been effaced from the map of Hindusthan?' It then alludes to the bravery of the men and women who in the past made rulers or administrators tremble and totter, and says that the time has come for another fight to the death. The Ministry in Bengal have declared war on the entire Province. They have attacked the traditions and culture of the past, derived from an independent intellectual life.

4. Next comes a reference to the last Governor, Sir John Anderson, as objectionable in its language as it is irrelevant to the topic under discussion. The only relevant portion is the statement that the Bill was his parting kick to his Hindu Ministers, and the insinuation that it was inspired by him. The writer then goes on to say that the 'outrageous illegality of the bill' had been exposed in his columns, and to describe it as an impudent challenge to the culture, thought and tradition of Bengal. Its purpose is to hand over education 'to the howling idiots, and worse than the howling idiots, to the communal maniacs and to panic-stricken officials who constitute a grave menace to educational independence.' Its sole aim is to create a body of communal terrorists and place them in entire charge of the educational policy of the Province.

5. Next follows a criticizm of the machinery to be set up for the control of education, which is described at some length; a reference to its sinister purpose, and a statement that Government has full powers to control the Education Board. The concluding paragraph avers that the entire bill has been begotten in iniquity and that its purpose is to be executed by terror and cruelty. It is an act of the most decided tyranny and barbarity ever perpetrated in the name of moral and intellectual healing. The article concludes with a further burst of rhetoric in which the 'inheritors of a great culture' are told that 'the land they love and worship is deliberately hurled into the abyss of communal savagery.'

6. From this analysis, it is clear in the first place that the article is an attack not on a ministry but on a measure. The bill itself is throughout the object of the attack. The sole references to the ministry in the whole article are the statement that they have declared war and attacked the traditions of the past and an ancient culture, and the statement that the writer refuses to believe that the ministry would have dared to sponsor the measure unless the former Governor of the Province had inspired and blessed it. The word 'ministry' is not to be found elsewhere in the article. The keynote of it indeed is 'the outrageous illegality of the bill,' a note, according to the writer, previously sounded in his columns. The attack is directed against the policy of the ministry, as revealed through proposed legislation. In this view of the real intention of the article, no comment expressing disapprobation of the measure with a view to obtain its alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection, would amount to an offence under Section 124-A of the Code. It has been said that in the present day at all events an attempt to remove from power the ministers in office, or any agitation for the repeal of an Act of Parliament cannot be seditious if no unlawful means are employed. It was laid down in R. v. Sullivan (1868) 11 Cox C C 54 that a journalist may canvass and censure the acts of Government and their policy-and indeed it is his duty. He is free to discuss their acts and their public policy and he may, if he thinks proper, censure the acts of Government and Ministers.

7. The article complained of in this case amounts in essence to nothing more than a censure, expressed in exaggerated, inflated and intemperate language, on a still-born bill. It is not however in my opinion seditious in the sense that it brought or attempted to bring the ministry into hatred or contempt, or that it excited disaffection in any greater measure than the measure implicit in the working of a democratic in R. v. Sullivan (1868) 11 Cox C C 54 constitution, apart altogether from the question whether it is seditious within the narrower limits imposed by the Indian Penal Code. In the result, I am of opinion that this appeal must be allowed, and the convictions and sentences set aside. Appellants will be discharged from their bail.

Khundkar, J.

8. I agree.


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