1. By two orders, made on 9th November 1933, one under Section 6, Sub-section (1) and the other under Section 10, Sub-section (1), Press (Emergency Powers) Act 23 of 1931, it has been declared that Rs. 1,000 out of the further securities deposited respectively by the keeper of a press, named the 'Ananda Press,' and by the printer and publisher of a vernacular newspaper of the name of 'Anandabazar Patrika' which is printed in the said press, was forfeited. The present application has been made under Section 23 of the said Act, to set aside the said orders of forfeiture.
2. The offending passages are contained in two articles, one of which was published in the issue of the newspaper dated 22nd Bhadra 1340(=7th September 1933), and the other in its issue dated 1st Kartik 1340(18th October 1933). Before us the orders have been sought to be supported on the basis of the passages contained in the former of the articles. The passages run in these words:
(1) In brief, what underlies this arrangement is, in (the language of) modern political dictionary, 'reprisal.'
(2) The retaliatory measures of medieval sternness which exist are adequate enough for the preservation of order and discipline.
3. The passages occur in an article, which, on a plain reading of it, was intended to support a protest which had been issued by some Indian leaders against the measure which had been adopted by the Government of transporting to the Andman Islands prisoners punished for political offences. This protest is referred to at the very commencement of the article. It is then stated that this measure is one of those severest measures which had been adopted for the suppression of revolutionary movement. It is plain, upon a reading of the article, that the writer of it is not so much concerned with the question whether other classes of prisoners should be so transported or not; and that, though he would condemn the system as undesirable from the point of view of humanity and civilization, it would seem that he was willing to concede that as a measure it was not unsuitable or undesirable for some particular classes of convicts. For he has said:
And it was a matter of pleasure that the Government, taking favourably the decision of the Jail Committee and public opinion in the country, directed that none that would be sentenced to transportation or imprisonment for life would be sent to Andamans against his will and that the said measure would be meant exclusively for the turbulent homicides and dacoits of various character of the frontier provinces.
4. The writer then quotes the report of the Jail Committee of 1919, which condemned the system as injudicious and as leading to moral degradation, and regrets that the protests that were raised against the sending of political prisoners to the Andamans were ignored by the Government, and that, under the new arrangement introduced, not only people sentenced to transportation and life imprisonment, but also political prisoners sentenced to imprisonment for three or four years, were being sent to the Andamans. The writer then gives two reasons neither of which was his own, as to why this was being done. One was what was said by the Government, namely:
That only such irresponsible and obstinate people as are of violent character and disturb the peace and orderliness of jail at every step were being sent to Andamans.
5. Another was what was put forward by some others, who were in support of the measure and who said:
These revolutionaries, if kept in Indian jails, get opportunities for communicating news to and get news from outside and it was necessary to deprive them of such opportunities.
6. Immediately following the last mentioned passage, appears the first of the two objectionable passages, which as already stated, runs thus:
In brief what underlies this arrangement is, in (the language of) modern political dictionary, 'reprisal.'
7. The writer then proceeds to narrate that the adoption of the measure was immediately followed by hunger-strike and deaths in jail and gives certain details thereof. He then states that, notwithstanding certain measures which the Government had adopted to remedy the situation, the position was, in his view still unsatisfactory. He then says that any change in the system could only be made by the Government of India. Having said all this the writer proceeds to observe:
The jails in India are not indeed heaven. The harsh retaliative measures of medieval sternness, which exist, are adequate enough for the preservation of order and discipline.
8. The second sentence in the observations just quoted is the second of the two objectionable passages. The article then proceeds to say that, though the authorities had been influenced by the consideration that harder punishment was necessary, such punishment was not really necessary, and, further, that the persons, at whose advice and instance the Government had adopted the measure, had not given good and farsighted advice. The above, in my opinion, is the true import of the article. Now, so far as the first passage is concerned, a question arises at the outset, namely, whether it is resume of the passage immediately preceding in which the reason given by some of the supporters of the measure is set out or is the opinion of the writer himself as being the ground underlying the measure. I think, on a fair reading of the passage, taken along with the context, that he is there summing up the whole situation and means to say that whether you take the explanation of the Government that
only such irresponsible and obstinate people as are of violent character and disturb the peace and orderliness of Jail at every step were being sent to 'Andamans,
or you take the reason of the supporters of the measure that the revolutionaries should be completely and effectively segregated, the underlying idea was 'reprisal,' The word 'reprisal,' the writer says, he has borrowed from the 'modern political dictionary.' What he means, as I understood, is that he is using a terminology of modern politics. The word 'reprisal' denotes an act of retaliation for some injury or attack, especially in warfare, the infliction of similar or severer punishment to the enemy. Divested from the context and used with reference to an act by the Government towards the people, the word would be objectionable inasmuch as it implies an idea of retaliation. 'Reprisals' are admissible for international delinquencies only. But the writer here was borrowing a term of International law for describing relations between the Government, on the one hand, and the revolutionaries, who are the enemies of law and order, and so, in a sense, enemies of the Government itself, on the other. He borrowed the word from what he calls 'modern political dictionary,' though strictly speaking there can be no question of 'politics' as between the Government and the people. And he used the word as descriptive of the two ideas which underlie the two grounds, namely, the one given by the Government and which was to the effect that prisoners who behave in a lawless manner while in jail should be brought under control, and the other by which some of the supporters of the measure justified it, namely that the measure was needed to deprive the revolutionaries of the opportunities of communicating news to and getting news from outsiders,-a matter which he had stated in the passage immediately preceding. Whatever may be the lexicographical meaning of the word 'reprisal,' the sense in which he has used it is clear. To no reader of the article would the word convey any other meaning. The offending passage, inasmuch as it was meant to reproduce that idea and nothing else, by visiting the word 'reprisal,' cannot in my judgment be taken to 'tend to bring into hatred or contempt the Government established by law in British India'-or to excite disaffection towards the said Government,' which are the only parts of Section 4(1) of the Act 23 of 1931 as amended by Section 16, Act 23 of 1932, we are concerned with in the present case. I may observe here that I have heard no arguments before me that the statement which the writer has made about the reason given by some of the supporters of the measure is not true or is a figment of perverted imagination on the part of the writer of the article. If such was the case, I would have looked upon the article in a different light altogether.
9. In the second of the offending passages, which immediately follows the passage, 'the jails in India are not indeed heaven,' the writer is evidently referring to the punishments which the Jail Codes provide for prison offences and breaches of prison regulations. His only object is to say that those measures are quite sufficient for subduing recalcitrant prisoners and for the maintenance of peace and orderliness. He is ascribing no base motive to the Government, but is only characterising the jail measures aforesaid as harsh and retaliative. The use of the epithet 'retaliative,' with reference to the punishments that the Jail Code provides, is, in my opinion not hit by the Act.
10. The article read fairly and as a whole, is open to no real objection. It expressed disapprobation of a certain measure of the Government with a view to obtain its alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection, and what was said in it could not possibly tend directly or indirectly to bring into contempt or hatred the Government established by law in British India or to excite disaffection towards His Majesty's Government. In the orders complained of in the petition before us it was also said in the alternative that the passages tended to incite the commission of a cognizable offence involving violence. Of this I do not see any indication anywhere in the article. I am therefore of opinion that the application should be allowed and the orders complained of should be set aside.
11. I regret that I have not been able to share the views of the Other members of the Court. It is to be observed, at the outset, that in a matter of this kind, we are not concerned with the intention of the writer. In a previous case, in which the same publication was concerned, [In re, Anandabazar Patrika, 1932 Cal 745], and entitled:
In the matter of Anandabazar Patrika and Ananda Press and in the matter of an application under Section 23(Act 23 of 1931) and in the matter of Satyendranath Majumdar, petitioner 1, and Jagadeeshchandra Mukherji, petitioner 2,
in the course of the judgment of the Court, we said this:
The intention of the writer is a thing which we are not entitled to take into account, we are concerned with the effect of the words used by the writer.
12. In my opinion, the question we have to consider, in the present instance, is what is the effect of the words used in the passages complained of. I need hardly say that the criterion to be applied is that laid down in Queen-Empress v. Bal Gangadhar Tilak (1897) 22 Bom 112, as was pointed out by the learned Advocate-General, while he was addressing us in the course of the proceedings. He referred us once more to the passage at p. 137 of the report of the case of Queen-Empress v. Bal Gangadhar Tilak (1897) 22 Bom 112. In that passage, there is the authority for saying that an offence may be constituted where the words used impute to the Government by law established in this country a base motive. Looking at the article, which appeared in the Anandabazar Patrika of 7th September 1933, we find that the actual sentence which is set out in the order is in these terms:
In brief, what underlies this arrangement is, in the language of modern political dictionary reprisal.
13. The learned Advocate-General says that, in order to ascertain what is meant by this sentence, one has to look back to the opening words of the article. They are in these terms:
A statement protesting against the new measure of transporting to Andaman Islands prisoners punished for political offences has been issued by a host of reputed judicial leaders and they have requested the Government to bring back the prisoners to the jails in India immediately.
14. It follows therefore that the sentence complained of is referring to the question of sending political prisoners to the Andaman Islands and the sentence, taken by itself, would seem to say that the measure is in the nature of a reprisal for something which the political prisoners or their associates have themselves done. The other passage referred to in the order of Government of 9th November is in these terms:
The retaliatory measures of medieval sternness which exist are adequate enough for the preservation of order and discipline.
15. In the official translation by the translator of this Court the epithet 'harsh' appears in front of the adjective 'relative' as applied to the word 'measure.' I do not think that this second passage, taken by itself, would be objectionable. But it seems to me that the first passage does suggest that the Government is acting from oblique and improper motives in bringing into operation the measure which is commented upon in this article. In my opinion, it is very difficult to say that if the Government acts from any improper motive it is not acting from a base motive. It is at that stage in the chain of reasoning that I think the matter does fall, though perhaps only just within the ambit of the criterion laid down by Strachey, J., in Queen-Empress v. Bal Gangadhar Tilak (1897) 22 Bom 112. It is argued on behalf of the present applicant that this sentence, which in the official translation is given at p. 18 of the paper-book and reads in this form:
In fact, the thing underlying this measure is 'reprisal' in the vocabulary of modern statesmanship
was not in fact a comment on the part of the writer, but is merely a continuation of the previous part of the paragraph, in which he was setting forth the views of other persons with regard to the introduction of the measure commented upon. The previous sentence reads thus:
Some, in order to support the Government in this act, said that those revolutionaries, if kept in Indian jails, got opportunities for communicating news to and get news from outside and it was necessary to deprive them of such opportunities,
and then comes the sentence complained of. I have not, of course, the advantage of being able to read the article in the language in which it was originally written: but, taking this official translation to be reasonably accurate, it seems to me that this last sentence is not merely a quotation of somebody else's opinion as to the reason underlying the 'measure' of the Government, but is in fact, the author's own comment upon it. That point was stressed by the Advocate-General in his argument before us. He invited us to take the view that this sentence was in fact, the author's own comment on the position. I think that is the, reasonable view of the matter. It is all very well to say that 'reprisal' is a word which finds considerable space in modern discussions about political movements and the relations between the Government of one country and the Government of another or even between the Government of a country and revolutionary bodies. I cannot help feeling, none the less, that to say that the Government is adopting measures in the nature of reprisals or retaliation against any body of persons who are subjects of the country in question or against any individual is to say in effect that the Government is not merely putting into operation the ordinary laws of the land and the normal procedure of penal administration, but is also adopting some extraordinary and improper means of dealing with the persons concerned. In those circumstances, I have-though with some hesitation come to the conclusion that the article does fall within the mischief aimed at by Section 4 of the Act of 1931 as amended by the amending Act of 1932 and, there fore, this application ought to be dismissed.
S.K. Ghose, J.
16. This is an application under Section 23, Indian Press (Emergency Powers) Act, 1931 and it is directed, against certain orders made under Sections 10(1) and 6(1) of the said Act. There is a Bengali vernacular daily newspaper called the 'Anandabazar,' Patrika, of which petitioner No. 1 is the printer, publisher and editor, petitioner No. 2 being a registered company. By two orders, dated 9th November 1933, made under Sub-section (1), Section 10, Indian Press (Emergency Powers) Act of 1931, it was directed that each petitioner should forfeit the amount of Rs. 1,000 out of the security furnished by them. The charge as set forth in the aforesaid orders was that, in the issue of the newspaper Anandabazar Patrika of September 7 and 18th October 1933, articles containing words of the nature described in Sub-section (1), Section 4 of the Act, the objectonable passages of which were given in the annexure thereto, were published, and that the said passages, in the opinion of the Governor-in-Council tended to bring into hatred or contempt the Government established by law in British India, or to excite disaffection towards His Majesty's Government, and also tended to incite to the commission of any cognizable offence involving violence. In this Court, the learned Advocate-General, appearing for the Crown, has stated that he would not press the case with regard to the article of 18th October 1933. Accordingly, the article of 7th September 1933, is the only article which is now relevant to the present proceedings. The question is whether the aforesaid order can be justified on the basis of the offending passages which are given in the annexure, viz:
(1) In brief, what underlies this arrangement is, in (the language of) modern political dictionary, 'reprisal.' (2) The retaliatory measures of medieval sternness which exist are adequate enough for the preservation of order and discipline.
17. The relevant sections are Section 4, sub-8. (1), Clause (a) of the Act of 1931 and Section 16, Clause (d), Act 23 of 1932, and with this should be read the Expln. 2 and 3 to this section, those being to the same effect as those to Section 124-A, I.P.C. There is no dispute as to the application of these sections, though the Government order does not specifically refer to the Act of 1932. The learned Advocate-General has contended that the two offending passages impute base motive to, and consequently they seek to excite disaffection towards, His Majesty's Government. This argument was supported by a reference to the remarks of Strachey, J., in the case of Queen-Empress v. Bal Gangadhar Tilak (1897) 22 Bom 112. The principle of the argument need not be disputed. The question in a particular case is whether the evidence of the words used is sufficient to show that the imputation of base motive is a natural inference, so as to justify the conclusion that there is an attempt to excite disaffection towards His Majesty's Government. The two passages, by themselves, do not signify anything and they have to be taken along with their context. The first passage occurs at the end of a paragraph in about the middle of the article. It runs-in the paper book, there being a slight difference in the translation:
On the contrary, it was noticed that under the new provision not only people sentenced to transportation and life-imprisonment but also those who are sentenced to imprisonment for 3-4 years were sent to Andamans and the Government said that only such irresponsible and obstinate people, as are of violent character and disturb the peace and orderliness of jail at every step, were being sent to Andamans Some in order to support the Government in this Act said that these revolutionaries, if kept in Indian jails, get opportunities for communicating news to and get news from outside and it was necessaryy to deprive them of such oppurtunities. In fact the thing underlying this mesure is 'reprisal' in the vocabulary of modern statesmanship.
18. The second passage occurs at the beginning of the concluding paragraph of the article and it runs thus in the paper-book:
The jails in India are not indeed heaven The harsh retalative measures of medieval period that are there are quite sufficient for the maintenance of peace and orderliness. On the top of that, the introduction of Andaman-oppression is absolutely unnecessary. We shall of course remain silent to-day about the grudge born of apprehension of those persons at whose advice and instigation the authorities have approved of the short-sighted system. The authorities have been influenced by the mentality that even harder punishment should be given to those accused persons who are under sentence passed by the Court, on the supposition of the inadequacy ot that punishment and have opened the Andaman jails. But the leaders requested the Government to change the arrangement not only because the Government have broken the promise of their predecessors, that they have also expected a favourable consideration of the Government with a view to stopping of regrettable occurrence that was due to the hunger strike Naturally enough the people of this country are anxious to learn what the Government of India say in reply thereto.
19. The article is headed 'Transportation to Andamans and the text of the article is given in the opening paragraph which runs thus:
A statement, protesting against the new measure of transportation to Andaman islands prisoners punished for political offences has been issued by a host of reputed leaders and they have requested the Government to bring back the prisoners to the jails in India immediately.
20. The entire article is in support of this protest. It amplifies the subject and ends up by referring to the fact that.
the leaders requested the Government to change the arrangement.
and stating that,
the people of this country are anxious to learn what the Government of India has said in replay thereto
21. It does not seem to me that the two offending passages, on which the proceeding is based, are the only, or even the main, argument relating to the theme of the article. The second passage evidently refers to practices in the jails in India and may be a reflection on those responsible for the administration of the jails, rather than on His Majesty's Government. The first passage refers more clearly to the Government as a whole and stress is laid on the word 'reprisal' which is quoted in English. I do not think it necessary to enter upon a research into the question of the exact meaning of the word reprisal' in modern politics, because I feel that the writer himself was doing no more than trying to display a learning which he did not possess. Reprisal or retaliation ascribed to an act of Government may indicate condemnation of such act, but the point is whether it necessarily ascribes a base motive. Mr. Bose for the petitioners has contended that the writer has used the words of the arguments unintelligently, without appreciating their true import and without any desire to inflame or incite any one, far less to excite disaffection towards the Government. Reading the article as a whole, I am disposed to agree with him. Mere disapprobation, however strongly and flagrantly expressed, does not imply that the intention was to excite disaffection. This has been held in several cases, for instance, in the case of Monomohan Ghose v. Emperor (1910) 38 Cal 253 and it is borne out by the express direction in the statute, the explanations to Section 16 of the Act of 1932. In the present case, there was clearly disapprobation of the Government, but the two passages, upon which alone the proceeding is now based, afford too slight a foundation for the conclusion that they tend to bring into hatred or contempt the Government established by law in British India, or to excite disaffection towards His Majesty's Government, and also tend to incite to the commission of any cognizable offence involving violence.
22. I think, therefore, the two orders of 9th November 1933, made by the Governor-in-Council under Sub-section (1), Section 10, Indian Press (Emergency Powers) Act of 1931 should be set aside.
Mukerji, Costello and S.K. Ghose, JJ.
23. The Court by a majority directs that the orders complained of in this application be set aside.