Bharati Press v. C.S Government Of Bihar

Sarjoo Prosad, J.:— In this case the petitioner, who is the keeper of the Bharati Press, Purulia; has moved under section 23 of the Press (Emergency Powers) Act (Act XXIII of 1931) (hereinafter called the Press Act) for setting aside an order calling upon him to deposit security under sub-section (3) of section 3 of the said Act.

On the 9th of September, 1949, a notice was served by affixing a copy thereof on the premises of the said Bharati Press. The notice is dated Ranchi, the 8th September 1949, and is addressed to the keeper of the Bharati Press, Purulia. It has been signed by one B.K Dutt, described as Under-Secretary to Government and “by order of the Governor of Bihar” requiring the said keeper to deposit with the Deputy Commissioner, Manbhum, on or before the 19th of September 1949, security to the amount of Rs. 2,000 in money or in Government securities. This demand for security, as appears from the notice, has been made under sub-section (3) of section 3 of the Press Act, and the notice further recites that the demand for security has been made inasmuch as

“it appears to the Governor of Bihar that the Bharati Press, Purulia, is used for the purpose of printing and publishing, matters specified in the schedule annexed hereto which are of the nature described in clause (a) of subjection (1) of section 4 of the Indian Press (Emergency Powers) Act, 1931 (XXIII of 1931)”.

In the schedule to the notice is mentioned “The Bengalee leaflet entitled ‘Sangram’”.

The petitioner in his application challenges the validity of the demand of security mainly on two grounds: The first ground is that the said notice demanding security from the petitioner is illegal because it does not state the “words, signs or visible representations” of the nature described in sub-section (1) of section 4 of the Press Act; and secondly that the Bengali leaflet entitled ‘Sangram’ does not contain any “words, signs or visible representations” of the nature described in sub-section (1) of section 4 of the Press Act. There was a further ground taken in the petition itself which was to the effect, that the press of the petitioner did not print or publish any leaflet entitled ‘Sangram’ that is of the nature described in clause (a) of sub-section (1) of section 4 of the Press Act. But it has been conceded in argument before the Court that the leaflet in question had been printed and published by the press of the petitioner. Therefore, so far as the factum of printing and publication of the offending document is concerned, there seems to be no dispute. The arguments have thus been confined to the two points stated above as also to a further point which was subsequently raised by the learned Counsel for the petitioner for the first time in argument before the Court. The point is one of constitutional importance. It is to the effect that section 4(1) of the Press Act is inconsistent with Article 19(1)(a) of the Constitution of India, and, as such, is void; and, therefore, the State Government or the Provincial Government had no jurisdiction to take any action against the petitioner on account of any violation of the said provision of the Press Act.

On behalf of the State the learned Government Advocate objected to the last question being raised at a late stage of the hearing. The point being one of constitutional importance, the learned Governments Advocate claimed that he should have been given sufficient notice of the matter and the petitioner, therefore, should not be allowed to raise this question. It is true that this constitutional point has been raised at a very late stage of the proceedings and ordinarily the Court would have been disinclined to entertain it but as the question is one of importance and affects the very jurisdiction of the State Government to take action under the specified provisions of the Press Act, the petitioner could not be shut out from raising the question even though at a late stage of the proceedings.

The records disclose that a copy of the offending leaflet ‘Sangram’ was not attached to the notice which was served on the petitioner nor does it appear that the notice in question specified any “words, signs or visible representations” contained in the document which in the opinion of the State Government constituted an incitement to or encouraged, or tended to incite or encourage the commission of any offence of murder or any cognizable offence involving violence as contemplated by section 4(1)(a) of the Press Act. On behalf of the petitioner it has been contended that it was very material that a copy of the offending pamphlet should have formed a part of the notice, and the objectionable passages contained in the pamphlet should have been specified in the body of the notice. It is argued that the failure to specify those passages affected the validity of the notice and the legality of the demand for security. Now, under section 28 of the Press Act a notice which is directed to the keeper of a press could be served by affixing a copy thereof to some conspicuous part of the place where the press is situate, provided the service could not in spite of due diligence be effected in the manner provided for the service of summonses under the Code of Criminal Procedure. I have already stated that the service in this case was effected by affixing a copy of the notice on the premises of the Bharati Press. It would have been certainly desirable to attach to the notice a copy, of the pamphlet mentioned in the schedule thereof; but it does not, in my opinion, affect the validity of the notice itself. At least it amounts to some irregularity. On behalf of the State an affidavit has been filed which has been sworn to by one Rajeshwar Prasad, an assistant in the office of the Political Department, Special Section, Government of Bihar. To the affidavit has been attached a copy of the pamphlet ‘Sangram’, which has been marked Ext. A, with an English translation thereof. Since it has not been disputed that this document was actually printed by the press in question and that this was the document mentioned in the schedule to the notice, there does not appear to have been any prejudice to the petitioner, and, therefore, the irregularity in not attaching a copy of the pamphlet mentioned in the schedule at the time of the service of notice did not vitiate the legality of the order demanding security from the petitioner. The other question, namely, that the offending passages in the document were not specified in the notice is also not very material in this case. Where the objection is not only to any particular passage or passages in the document but to the document as a whole, then no passage or passages can possibly be specified as the objection does not relate to any particular passage but to the whole tenor of the document which has the undesirable effect as contemplated by section 4(1)(a) of the Press Act.

The question then arises whether the document in question is of such a character as is described in, section 4(1)(a) of the Act. If we are not satisfied that it is of such a nature, then it is open to this Court under section 25 of the Press Act to set aside the order demanding security from the petitioner. As the English translation of the document which formed a part of the affidavit filed on behalf of Government was objected to as not being an accurate translation of the original so as to give a correct impression of the tenor and contents of the document, we have had the document translated by a translator of this Court. I have read the document both in original as also from a Romanised copy thereof and I have also read the aforesaid translations. The document is written in high-flown Bengali language and contains a good deal of demagogic claptrap with some pretence to poetic flourish. The first few paragraphs indicate that the writer of the document finds wrong and tyranny pervading all over, from the past to the future. It says that history records the names of those who struggled against this tyranny in the past, and so shall history record the names of those who struggle against it in the future. The writer says he is starving and begging for a fight and his revolt is against oppression; fascism and wrongful harassment. He, therefore, calls upon everyone to join the struggle and to build a new world order by bringing about a complete revolution. So far there could not be anything objectionable in the pamphlet because revolution can be both by constitutional or non-violent methods and it can also be by a bloody and violent struggle resulting in death and carnage on a mass scale. As the subsequent paragraphs of the document indicate, the revolution contemplated by the writer is not a non-violent or constitutional revolution but a revolution of the last category, namely, a revolution brought about by bloodshed and destruction. He wants revolution and wants destruction; through struggle and revolution the world is to be built anew after the oppressors have perished. He says that this struggle has to be brought about by courting death and suffering and the struggle is directed personally against those who are the director of the wrong and the injustice. The writer thinks that there is no protection against the oppressor except by standing up to fight in a body and destroy the oppressor. In one of the paragraphs the writer says:

“Ore nirbgdh atyachari—chokh rangiye gala mota kore jururbhoy dehhate chas—dekhas, Bhoy kari na…………tai sankirna rasira niti birudhe amar pratibad”

which freely translated means:

“Oh thou foolish oppressor, you want to cause abject terror in me with your red eyes and full throated voice—do that, I am not afraid………. My protest is against parochial national politics”.

In another passage the writer says:

“mrityu amar gopan priya; bish amar paniy, dabanal shikha snigdha batas Shata vutrahin jananir krandan amar Bansharir ehti sur, priyahara priyar (bidhabar) krandan amar ganir ekti koli”

which means

“death is my secret love: poison is my drink: the flames of, fee are my sweet breeze; the wailing of a hundred bereaved childless mother is just a tune in my flute; the weeping of widows at their widowhood is just a rhythm of my song”.

In other words, the passage suggests that even if hundreds of persons the in the struggle, it should not make any difference at all and in fact the dire consequences should be welcomed without caring for the wails and tears of bereaved mothers and widows. In another passage the writer further says.

“Ami Smashan; ami smashan bashini mashan charini ??? Kali. Mahamari durbhiksha amar ullas……………… ??? chai rakta……… ami chai biplab……… ami chai sangram. Rakte, ami chai satya: biplabe ami chai nyoy sanarame, sangrame ami chai biswas chhinr chhinr re anyay shikal Bhang bhangre—atyachair garba shir

This passage may be rendered info English as follows:

“I am the cremation ground. I am the blood thirsty goddess-Kali who lives and moves about in the carnation ground. Plagne and Famine is my great joy…………… I am thirsty. I want blood. I want revolution, I want faith in the struggle. Tear, tear the chain of wrongs. Break, break thou the proud head of the oppressor”;

and further on the writer says that he personifies total destruction and that he is the venomous fangs of the snake. These passages, to my mind, indicate beyond any shadow of doubt that the revolution contemplated by the writer is a revolution built on blood and carnage by the destruction of those who are in the opposite camp; in other words, persons who are regarded as oppressors. The writer wants a total destruction of those oppressors, and he appears to enjoin upon the readers of the pamphlet that they should break and break the proud head of the oppressor. The writer desires that his cries should be heard by people far and near, that his call should be hearkened far far away across the hills, the jungles, across the rivers and rivulets and all those who hear should come forward to join the ranks in destroying the oppressor. He says that he is the messenger of death. He says that his revolutionary song signals at the door of each, of the listners and signals to them to come out if they have life, if they have health, if they have courage to come and dash to pieces those who commit oppression on the mother; and he says with his blood and with the blood of those followers let the revolution grow in volume. About this symbolic mother, in a later passage, the writer observes that if mother-tongue be equal to mother, then the said language is the most revered goddess and disgrace should not be allowed to spread in her name. The pamphlet then winds up with an invocation to the readers which translated reads as follows:

“If you are true, if you are the gift of God, if you are not a bastard, then come forward with a fearless heart to struggle against the oppressors improper conduct, oppression and injustice. We should not tolerate wrongful oppression. Oh, thou the people, with the burning pain of thine heart burn the heart of the oppressive high handed oppressor. Let all wrongs, all highhandedness, all oppressions, all tyrannies be burnt in the flame.”

These passages I have only quoted to show that the document as a whole is a clear invocation to the readers to join a total and a deadly struggle to bring about a revolution by violence resulting in complete annihilation of those whom the writer considers, as oppressors. There is a clear implication in the pamphlet that in the opinion of the writer the present order of society is totally oppressive and must be destroyed at all costs in which people should combine to lend a helping hand and fight to the finish. The “oppressor”, it is true, is not very clearly defined in the body of the pamphlet. At one place the writer suggests that his protest is against parochial national politics. At another place the writer suggests to his readers to take up courage and dash to pieces those who commit oppression on the mother. At yet another place the writer suggests that the mother-tongue is equal to the mother, and that the said language is his most revered goddess; therefore no disgrace should be permitted to spread in her name. These expressions are undoubtedly vague. They may have reference to some language controversy which perhaps might have been going on at the time of the publication in Purulia; and the publication of the pamphlet under those circumstances must have clearly conveyed to the readers what the intention of the writer was and against whom the pamphlet was directed in particular; but the innuendos contained in the publication have not been explained on behalf of the State. In the absence of any such material we cannot assume to whom the writer actually refers in those, passages as being the perpetrators of the tyranny or the oppression against which he is raving.

In the affidavit filed before us the State Government only say in paragraph 4 that the matter contained in ‘Sangram’ may have the effect of inciting or encouraging violence or bringing into hatred or contempt the Government of Bihar established by law or of exciting disaffection towards the said Government. The affidavit in other words, suggests that the offending pamphlet falls under section 4(1)(d) of the Press Act. This was also the line adopted in argument by the learned Government Advocate appearing on behalf of the State. There are however, two serious difficulties in accepting this argument advanced on behalf of Government. The first difficulty is that in the notice served on the petitioner it is alleged that the matters specified in the schedule to the notice were of the nature described in clause (a) to sub-section (1) of section 4 of the Press Act. There is no mention there that the published matter was of the nature described in clause (d) to sub-section (1) of the said section. It has been, therefore, argued on behalf of the petitioner that it is not open to Government now to alter their position and to urge that the offending pamphlet comes under section 4(1)(d) of the Act. In support of the argument reliance is placed on the observations of Divatia, J. in the Special Bench case of, Bishnu Gangadhar Ketkar v. Government of Bombay where it was contended in argument by the learned Advocate-General appearing on behalf of the Government of Bombay that the Court had to see whether the passages in question fell under any of the clauses (a) to (i) of sub-section (1) of section 4, and not merely clause (a) or (b) of the said section; because the object of the notice given to the petitioner mentioned in general words of the nature described in sub-section (1) of section 4. In the case in question it was admitted that in the statement of objected words attached to the notice (it had been expressly mentioned that the said statement fell under clause (a) or (b) of section 4(1) of the Press Act: it was nonetheless contended by the learned Advocate-General that the Court was not bound by any such limitation mentioned in the notice, and the Court was entitled to see whether the statements fell within any one of the clauses mentioned in section 4(1) of the Act. This argument did not find favour with their Lordships who observed as follows:

“The statement is a part of the notice itself under section 3(3) which requires a ‘notice in writing to the keeper of the press stating or describing such words, etc.’ The statement is, therefore, a statutory provision and is in the nature of a charge which gives particulars about the specific clauses of the sub-section that are alleged to have been infringed. The petitioner has come to this Court to set aside an order which purports to be based on that charge. We do not think, therefore, that Government can now go behind or enlarge those particulars which are an integral part of the notice. The material clauses in the notice would be (a) and/or (b), but as the book falls under Explanation (1) to sub-section (1), the only question before us is whether the book has a tendency to incite to or encourage the commission of any offence involving murder or violence as stated in clause (a).”

These observations undoubtedly support the petitioner. Here also the notice specifies that the published matter mentioned in the schedule to the notice was of the nature described in clause, (a) to sub-section (1) of section 4 and not in clause (d) of the said sub-section. There is, however, one difference that in the Bombay case there was a statement of objected words attached to the notice and in respect of those particular words it had been mentioned that they came either under clause (a) or under clause (b) of section 4(1) of the Press Act. Here the objection in the notice refers to the entire pamphlet and not to any particular words or phrases used therein. Under section 23 of the Act the Court has to decide whether the document complained of was of the nature described in sub-section (1) of section 4. In construing the document or the offending passages if the Court comes to the conclusion that it falls under any particular clause of sub-section (1) of section 4, then the Court, in my opinion, can hold that the order made under sub-section (3) of section 3 was a valid order. The mere defect in the frame of a charge so long as it does not prejudice the accused has been held to be curable under the Code of Criminal Procedure; and similarly, in my opinion, the defect in the frame of a notice of this character cannot have any more serious consequences. It is true that if the objection in the notice is confined only to particular passages in the document, then it would not be open to Government to enlarge the discussion by reference to many other offending passages and to invite the Court to come to a decision that those other passages fell within one or the other of the various clauses of section 4(1) of the Act. That would be asking the Court to enter into a roving enquiry as to passages or words in the document to which exception had not been taken originally in the notice itself, and such a procedure may well be deprecated as Their Lordships appear to have done in the Bombay case, the procedure being evidently prejudicial to the accused. In the present case it does not appear to me to be necessary to go to the length of holding that merely because a particular clause of sub-section (1) of section 4 is specified in the notice, therefore the Court must be confined merely to see whether the offending publication did come within that clause, even if on a perusal of the document as a whole the interpretation of the Court is that it comes under some other clause of section 4(1) of the Act. Here the Government are not asking the Court to broaden the enquiry and thereby prejudice the case of the petitioner. The objection in the present case relates to the entire pamphlet. I think, however, that the more serious difficulty is that on a construction of the document itself I cannot hold that it comes under clause (1)(d) of section 4 of the Act. I propose to reproduce here the two relevant clauses of sub-section (1) of section 4 of the Act, namely, clauses (a) and (d). They are as follows:

“4(1) Whenever it appears to the Provincial Government that any printing-press in respect of which any security has been ordered to be deposited under section 3 is used for the purpose of printing or publishing any newspaper, book or other document containing any words, signs or visible representations which—

(a) incite to or encourage, or tend to incite to or to encourage, the commission of any offence of murder or any cognizable offence involving violence, or

(d) to bring into hatred or contempt His Majesty or the Government established by law in British India or the administration of justice in British India or any class of section of His Majesty's, subjects in British India, or to excite disaffection towards His Majesty or the said Government,”

Now, there are no words in the document which can be said to bring into hatred or contempt the Government established by law or the administration of justice in the province or to excite disaffection towards the said Government. The word “oppressor” or the words which refer to those who encourage parochial national politics or those who bring disgrace to the mother-tongue cannot be regarded as having any reference to the Government established by law and nothing has been brought before us on behalf of Government to explain that in the circumstances or the conditions prevailing in the district of Purulia or amongst persons for whom the circulation was intended the words or phrases conveyed a veiled reference to Government established by law and intended thereby to create or excite disaffection against that Government. That may or may not be so. It is, therefore, not possible to hold that the publication was necessarily meant to bring into hatred or contempt or excite disaffection towards the State Government or the authorities of the State Government. The question then arises whether they refer to any class or section of the people and tend to bring into hatred or contempt such class or section of people. It appears to be well established that the “class or section” of people referred to in the clause must be a determinate and an ascertainable class. There is no such thing here. The references are completely vague at least to the mind of a person who has nothing else before him except the offending pamphlet. In this context I may refer to a decision of the Special Bench of this Court in Kumar Badri Narain Singh v. Chief Secretary to Government of Bihari, where Their Lordships relying upon a decision in Emperor v. Miss Maniben L. Kara, …(Original Accused)* held that clause (d) contemplates “a definite of; ascertainable class”. I cannot, therefore, hold on a consideration of the entire document that it comes Under clause (d) of section 4(1) of the Act.

I shall now turn to see whether it does fall under clause (a) of section 4(1). I have already analysed in detail the various paragraphs of the pamphlet and the effect which it produces upon the mind of the reader. The general effect of the document unmistakably is to produce an impression that it excites and encourages a bloody revolution in which the revolutionaries are to fight to the bitter end and fight to death even if it resulted in the loss of hundreds of sons and husbands. To put it in the language of Harries, C.J, in the case of Badri Narain v. Chief Secretary, Bihar Government, aforesaid:

“In my judgment, words tending to, incite to or to encourage bloody revolution and the destruction of the present social order by bloodshed and force clearly come within section 4(1)(a) of the Act. Bloody revolution and forcible and violent destruction of the present social order involve all kinds of cognizable offences involving violence end would in all probability involve murder. In my view it is unnecessary to show that the words tend to incite to, or to encourage the commission of a particular offence or offences. It is sufficient if they tend to incite to or to encourage the commission of cognizable offences of violence in general.”

I respectfully agree with these observations of His Lordship (though not without some irony to myself). It is true that the pamphlet in the present case does not encourage any particular kind of violence or murder but in general it talks of violence and destruction and of bloodshed in order to bring about a revolution in the country after destruction of, the oppressors, under whose tyranny the writer of the pamphlet appears, to be smarting and groaning. For the petitioners has been very strenuously urged by Mr. Ghosh that the language of the pamphlet should not be too literally construed, and that the, expressions used are merely figures of speech in order to make the appeal of the writer, effective. The learned Counsel urges that even if they refer to bloodshed and violence, the reference is only to the persons engaged in the struggle who have to the struggling and court death and destruction. It does not talk of violence or destruction of anybody else, and, therefore, it cannot be said that it encourages the commission of any offence of murder or cognizable offence involving violence. In my opinion, this cannot be the correct reading of the pamphlet in question. Expressions like the following which have been so often used in the document, namely, “Let all oppressors perish”; “death is my darling I am blood-thirsty goddess Kali who lives and moves in the cremation ground”; “I am thirsty I want blood”; “I want revolution; break, break the proud head of the oppressor”; “I am total destruction”; “lam the messenger of death”; “if you have got courage come and dash to pieces those who commit oppression on the mother” unquestionably connote that the writer of the pamphlet does not merely want that he and has followers should alone spill their own blood but that they should also spill the blood of others. Total destruction of those against whom they are struggling, namely, persons who in the opinion of the writer are the oppressors or who are directors of wrong and injustice or who take part in parochial national politics or who bring into disgrace the mother-tongue is the chief object of the publication. I, therefore, cannot but hold that the pamphlet to which exception has been taken by Government does fall under section 4(1)(a) of the Act, and I cannot agree with the contention of Mr. Ghosh that it contains mere empty slogans carrying no particular meaning except some amount of figurative expression or language borrowed at random from various authors with a touch of poetic flourish about it. The central meaning of the writer of the document is absolutely clear. The central theme which runs through the whole gamut of the offending pamphlet is that the author is anxious to bring about a bloody revolution and challenge completely the present order of things by causing a total annihilation of the persons and the policies of those who according to him, are in the opposite camp. Such a pamphlet, therefore, does come within the mischief of the clause referred to in the notice and the demand for security would be justified under the Act unless we were to hold that the said provision of the Act was repugnant to the Constitution of India and infringed the fundamental right of freedom of speech and expression as provided in Article 19(1)(a) of the Constitution Act.

I shall, therefore, now address myself to an examination of this constitutional problem. Of course it goes without saving that a demand of security from the press for publishing a certain material is a restriction put upon the freedom of speech and expression. The writer has endeavoured to express himself through the press and under the Constitution of India, he should be free to do so except within the bounds of limitation put by the Constitution itself. The only limitation to this freedom of speech and expression is provided by Article, 19(2) of the Constitution. Article 19(2) runs as follows:

“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

That the Press Act is an existing law must also be conceded. Now, in so far as the provisions of the Press Act relate to matters specified in clause (2) of Article 19, its operation cannot be affected by clause (1)(a) of that Article. These, therefore, are the only exceptions and it will have to be examined whether section 4(1)(a) of the Press Act falls under any of these exceptions mentioned in clause (2) of Article 19 of the Constitution of India.

The point undoubtedly is one of far reaching importance, and as the Government Advocate had complained that he had not had sufficient time to meet the point, it having been raised for the first time in arguments, we heard the parties again in the matter at a later stage. On behalf of the State it is contended that section 4(1)(a) of the Press Act relates to matter which

“undermines the security of or tends to overthrow, the State”.

As such, it is stated, it is saved under Article 19(2). It is contended that this clause must be read in conjunction with the various other clauses contained in the section, and in the context it must be assumed that the clause in question refers to political assassination or violence subversive of the security of the State. It must be observed in this connection that several of the clauses mentioned in section 4(1) refer to matters which unmistakably relate to the security of the State, e.g, clause (c) refers to seduction of any officer of the army, the navy or the air force or any police officer from his allegiance to the State; clause (f) deals with interference with the administration of the law or with the maintenance of law and order; while clause (g) deals with attempts to induce a public servant to forbear or delay the exercise of his public functions; and clause (i) with attempts to prejudice recruiting to the armed forces. On the strength of these clauses it may be urged with great plausibility that the intention of the law was to prevent bringing about a general insurrection in the land by persons or parties who wanted to effect a coup detate and usurp by force the reigns of the Government. Indeed the statement of objects and reasons at the time when the law was put on the legislative anvil leads to the same conclusion. It says:

“it was the policy of many newspapers ‘consistently’ to foster conditions of disorder, and that a section of the press was giving direct or indirect incitement to violent and revolutionary crime”.

It must, however, be noted that clauses (c) to (i) were introduced at a later stage in the Act by Act XXIII of 1932. In that view it seems difficult to accept the contention that all the various clauses of sub-section (1) of section 4 must be read together so as to form a component and an integral part of the legislation intended to prevent actions which may have the effect of undermining the security of the State or that of overthrowing it. Now let us examine whether clauses (a) and (b) of section 4(1) of the Act taken conjointly lead to the inference that they were directed mainly and solely towards crimes of violence and political assassination subversive of the State. Clause (a) deals with a publication that incites or encourages the commission of any offence of murder or any cognizable offence involving violence; whereas clause (b) refers to direct or indirect approval or admiration of any such offence, or of any person, real or fictitious who has committed or is alleged to have committed any such offence. It may be argued that the two clauses must refer to political assassinations or murders or subversive crimes of that character, because otherwise it was not possible to expect that any person would approve or admire the commission of any such offence by any person real or fictitious. The plain grammatical meaning of the two clauses does not necessarily lead to any such inference, and where the language of the Statute is perfectly clear and unambiguous reference to statement of objects and reasons is irrelevant and unwarranted. Cases may be conceived where the publication may relate to murders or offences involving acts of violence without any political motives and yet publications relating to such murders may come within the mischief of section 4(1)(a) of the Act. Cases may also be conceived where directly or indirectly murders or acts of violence of that kind may be approved or admired. Let us for instance, take the case of an individual who is a terror in a particular locality because of his being the head of a gang of dacoits and robbers. The man may have been clever enough to escape the clutches of the law, yet the people in the locality are so tired of him that pamphlets or leaflets are published inciting his murder or assassination. It may also be that even after the man is murdered, the people of the locality or some of them may publish documents approving the conduct of the murderer. Evidently, these acts have been done, not with any political motive, yet these publications come as much within the mischief of section 4(1)(a) and (b) as any other publication relating to crime of a political character. As I said, according to the plain language of the two clauses, there would be nothing to differentiate between the two kinds of publications, and Government would be justified in demanding security from the press for printing and publishing any such matter. It cannot be said that in such the High Court would be justified in setting aside the order demanding security because it would not be a case of misapplication of the law. On the contrary, the conduct of the authorities in making the demand would be perfectly justified within the meaning of the law.

Article 19(2) of the Constitution Act came in for consideration in two very recent decisions of the Supreme Court: Ramesh Thappar v. State of Madras, and Brij Bhushan v. State of Delhi. Ramesh Thappar's case was a case which arose under the Madras Maintenance of Public Order Act, 1949. This Act, as the preamble shows, was for the purpose of preventing

“disorders involving menace to the peace and tranquility of the Province”

and affecting

“public safety”.

The Government of Madras acting within the provisions of the said law had prohibited the entry and circulation of a certain journal called ‘Cross Roads’ (printed and published in Bombay) in the Province of Madras. The printer, publisher and editor of the journal then moved the Supreme Court under Article 32 of the Constitution for a writ of mandamus and certiorari on the ground that the order of the Madras Government contravened the fundamental right of the petitioner to freedom of speech and expression conferred upon him by Article 19(1)(a) of the Constitution, and was, as such, a void no order being inconsistent with the fundamental right aforesaid. The majority of the Judges constituting the Bench held that “public safety” or “public order” were matters of wide connotation and could not necessarily be confined to matters which undermine the security of the State or tend to overthrow the same. A legislation, therefore, which put limitation upon the right of freedom of speech and expression on these grounds was illegal and void. The language of Patanjali Sastri, J., who delivered the judgment of the Supreme Court is quite explicit. He says: “whatever aims its framers may have had in view, its application and scope cannot, in the absence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State”.

In this case even if it is held that section 4(1)(a) of the Press Act was intended to apply mainly to political assassinations or cognizable offences involving violence subversive of the State, yet there are no words of limitation in the language of the section itself which would restrict their operation only to such cases and not to ordinary murders and cognizable offences involving violence. Their Lordships further observed as follows:

“Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education so essential for the proper functioning of the processes of popular Government is possible.

We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.”

Similarly, here also it may be observed that although the impugned provision of the Press Act may have been conceived generally for the purpose of safeguarding the security of the State, yet it could not be said that the provision was solely directed to that purpose. It was further contended before the Supreme Court that if the provision fulfils two purposes, namely, that it is intended to safeguard against matters which undermine the security of the State or tend to overthrow it and may at the same time be applicable to offences of minor character, the provision should not be declared wholly void; it should be upheld so far as it is within the bounds of permissible legislation as required by Article 19(2) of the Constitution Act. This argument was naturally thown out by Their Lordships because in their view the language of the provision was not severable. In doing so, Their Lordships made the following pertinent observations:

“Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.”

These observations apply with equal force to the present case. It cannot be argued that the language of clause (a) of section 4(1) or that of clause, (b) are severable in their effect so as to be consistent with the Constitution for one purpose and inconsistent for another purpose. Both these provisions are worded in general terms and they may apply both to aggravated forms of offences like political assassinations as also to ordinary murders or cognizable offences involving violence. I cannot, therefore, hold that to any extent these clauses of section 4(1) can be saved as permissible legislation under Article 19(2) of the Constitution Act. I make no pronouncement so far as the other clauses of section 4(1) of the Press Act are concerned, because, in my opinion, those later provisions of the Act are clearly severable from the provisions aforesaid.

The other case before the Supreme Court, namely, Brij Bhusan's case related to the validity of section 7(1)(c) of the East Punjab Safety. Act which provided that—

“The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher or editor—

(c) require that any matter relating to a particular subject for class of subjects shall before publication be submitted for scrutiny.”

The printer and publisher as also the editor of a certain weekly of Delhi called ‘Organiser’, to which Province also the Act in question had been extended, moved the Supreme Court for writs of certiorari and prohibition under Article 32 of the Constitution Act impugning an order passed by the Chief Commissioner of Delhi under the said Act. In this case, again Their Lordships observed that the imposition of pre-censorship on a journal was a restriction on the liberty of the press which was an essential part of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution; and they held that inasmuch as the order in question was not saved under clause (2) of the said Article, as decided by them in Ramesh Thappar's case, they directed the order of the Chief Commissioner to be quashed. There can be no doubt that having regard to the seriously disturbed condition of the Punjab at the time when the Act in question was passed, the Act was primarily intended to safeguard the security of the State and to prevent acts which tended to its overthrow; yet, as the provision in question was directed against publishing an objectionable matter constituting a threat to public law and order, Their Lordships having already held that the words “public law and order” being far too general in their application, could not necessarily be confined to matters affecting the security of the State, they therefore found, the provision in the Act could not come within the bounds of permissive legislation as required by Article 19(2). These two decisions, in my opinion, sufficiently conclude the matter and in the circumstances I feel constrained to hold that clauses (a) and (b) of section 4(1) of the Press Act are void being inconsistent with the fundamental right given under Article 19(1) of the Constitution, and that these provisions are not saved under clause (2) of the said Article. As the demand for security in this case has been made for violation of section 4(1)(a) of the. Act, the order demanding security is void and must be quashed. The learned Advocate-General who appeared for the State of Bihar at one stage of the hearing also conceded that in view of the aforesaid decisions of the Supreme Court, it was difficult to hold that the said provisions of the Press Act were not inconsistent with the fundamental right of freedom of speech and expression guaranteed under the Constitution and were saved under the saving clause of the Constitution.

The question may again arise whether the impugned provisions of the Press Act refer to matters which offend against decency or morality and are thus saved under the Constitution. I must observe in this connection that the learned Government Advocate has not relied upon these Dhrases in Article 19(2) in support of his contention. Prima facie it may appear that a publication which incites or encourages murder or cognizable offences involving violence must be opposed to all sense of decency or morality, as we understand these expressions in common parlence. Ordinarily one may be inclined to think that the Constitution does not limit the meaning of those expressions to some peculiar kind of offence. Here again the trend of the Supreme Court judgments, above referred to, stand in the way of our giving such a wide meaning to the expression “offends against decency or morality”. The classification of offences in the Penal Code places these various kinds of offences under distinct categories for instance, offences against the State are dealt with in Chapter VI, offences against public tranquillity in Chapter VIII, offences against public health, safety, convenience, decency and morals in Chapter XIV, whereas offences affecting the human body are in Chapter XVI of the Code. These offences against decency and morality are put in a class altogether distinct from offences of murder and cognizable offences involving violence. Therefore, the offences must be deemed to be such offences as are mentioned in those classifications. This purports to be Their Lordships' view. The framers of the Constitution must have been conscious of these provisions in the Penal Code when the Constitution came to be drafted, and the expressions used in the Act may be deemed to have been used in the same sense in which they were used in the Penal Code. From that point of view, it is impossible to hold that the provisions of section 4(1)(a) and (b) of the Act can be justified on the ground that they relate to matters which offend “against decency and morality” as these expressions have been given a narrower connotation in the Penal Code and may be deemed to have been used in the same sense in the Constitution as well.

I am compelled to observe that from the above discussions of the Supreme Court judgments, it follows logically that if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity inasmuch as he would claim the privilege of exercising his fundamental right of freedom of speech and expression. Any legislation which seeks or would seek to curb this right of the person concerned would not be saved under Article 19(2) of the Constitution and would have to be declared void. This would be so, because such speech or expression on the part of the individual would fall neither under libel nor slander nor defamation nor contempt of court nor any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State. I cannot with equanimity contemplate such an anomalous situation but the conclusion appears to be unavoidable on the authority of the Supreme Court judgments with which we are bound. I, therefore, wish that my decision on the point would sooner than ever come to be tested by the Supreme Court itself and the position re-examined in the light of the anomalous situation pointed out above. It seems to me that the words used in the Constitution should be assigned a wide and liberal connotation even though they occur in a clause which provides an exception to the fundamental right vouchsafed under Article 19(1)(a) of the Constitution (Vide 1930 A.C 124 at 136).

It may well be observed that the Press Act which was an emergency legislation was not intended to be a part of the permanent statute of the land. Indeed, it must be so; but if the circumstances which necessitated the enactment of a statute of that character do operate, it cannot be said that the emergency has completely vanished.

It is not without much hesitation that I have come to the decision given above. In forming my conclusion I have not been unmindful of the fact that in a country like England a pre-censorship of this character on the press does not exist. It must be, however, borne in mind that in England the traditions of democracy are so firmly established that it would be generally unthinkable for any press to indulge in inciting acts of political violence and murder; and if it does, which of course would be rare, it is proceeded against under the general law of the land and punished accordingly. In a country like India where the roots of democracy have not yet taken a firm hold on the soil and where already dangerous and disruptive forces are working to destroy the sapling of freedom and democracy, a legislation, of this character could not be said to be altogether ill-advised. I have no doubt that the saner section of the press will always utilise its freedom of speech and expression to the furtherance of the cause of democracy but a press which is brought into being with the specific purpose of creating discord and disaffection and preaching violence and disorder on a mass scale cannot be expected to respect its freedom of expression. These are, however, matters with which this Court is not concerned and may better be left to the wisdom of the legislators.

The result is that the application must be allowed and the order complained against demanding security from the petitioner must be quashed.

Shearer, J.:— The Constitution of India contains no express declaration in favour of the freed om or liberty of the press, and the reason or one of the reasons for this omission may, I imagine, be that at no period in history and in no country in the world has the press been free; in the sense that the keeper of a press may print and publish any matter he chooses without thereby incurring any risk of punishment. The invention of panting led to the propagation and dissemination, on a far wider scale than had hitherto been possible, of ideas which were subversive of the existing order in Church and State. In 1501 Pope Alexandar VI published a bill against unlicensed printing. After the Reformation and the break up of the Holy Roman Empire, the sovereigns of the national states which came into existence, took similar steps to control the press, in England until]695 no book or pamphlet could be printed without the imprimatur of the Crown licensor, and the printers and authors of books or pamphlets, which had been issued without it, were liable to be brought before special courts, such as the Star Chamber, and most severely punished. Although in 1695, when the House of Commons declined to continue the Licensing Act, the press in England was emancipated from direct state control, in other countries on the Continent of Europe a system of pre-censorship continued until long afterwards. In 20th century Europe, in more than one country, the press, oil its political side at least, has again been subjected to strict Government control. In Facist Italy the responsible editor of every newspaper had to be approved by the prefect of the province. A prefect might warn a newspaper editor who published matter or news to which he took exception and might revoke his recognition of an editor who had been so wanted twice in a year. In Soviet Russia there is no independent press, and any persons venturing to propagate ideas, which are, in any way, inconsistent with the Communist creed, are liable to the most severe punishment. When we speak of the freedom or liberty of the press, we mean that freedom—no doubt a very substantial freedom, but, nevertheless, a freedom which is definitely limited and circumscribed —which is enjoyed by the press in the English speaking world. In 1784 in the celebrated case of Rex v. Dean of St. Asaph, Lord Mansfield said: “The liberty of the press consists in printing without any previous licence subject to the consequences of the law”. Now, in England and in America, it is a crime to print and publish matter of certain kinds. It is obvious that the existence of such laws and the consequent dread of punishment must act as a deterrent on persons, who hold certain ideas or opinions, seeking to propagate and disseminate them. Moreover, under the law of libel, including the law of seditious libel, not merely is the author of the libel responsible. Responsibility also extends to the publisher and printer and indeed, to every vendor of the publication. As ordinarily, a writer must find a publisher, the publisher must employ a printer, and the printer, in his turn, must rely on book-sellers to sell the book or pamphlet which he prints, it is clear that the possibility of a writer succeeding in communicating to any large body of the public ideas or opinions, the dissemination of which the law regards as culpable, is small. In India until 1910 the press was in very much the same position as it was in Great Britain and the Dominions and in America. In 1910 the Press Act, however, empowered the executive to demand security from the keener of a press and the publisher of a newspaper, and, in certain circumstances, to declare such security forfeited. The Press Act of 1910 was repealed in 1922, but in 1931 was re-enacted in a modified form. The statute of 1931 was described as “an Act to provide against the publication of matter exciting to or encouraging murder or violence”. In the following year it was amended in certain particulars by the Criminal Law Amendment Act, 1932, one such amendment being in the title which was altered to “an Act to provide for the better control of the press”. The question that arises in this case is whether, in consequence of article 19(1)(a) in the Constitution, it is still open to the executive to require the keeper of a press, which has published matter of the kind referred to in clauses (a) and (b) of section 4(1) of the Press (Emergency Powers) Act, 1931, to deposit security. The object of requiring security is, it is clear to ensure that the keeper of a press, who prints matter of a certain kind, may not evade liability or escape punishment. Such also, it may be observed, is the object of the law which requires the printer of every book or pamphlet to exhibit his name and address on the first or the last page of the book or pamphlet. In England, until the law so provided, persons, who were libelled, very often found it a matter of the greatest difficulty to ascertain who was responsible, and, in order to enable them to do so, general search warrants had to be issued. There can, of course, be no doubt that a system under which the keeper of a printing press can be required to deposit security is a system of control over the press, but the control so exercised is substantially the same kind of control as is exercised by making it a crime to publish matter of a certain kind. The author of the book or pamphlet, which contains or may appear to contain a libel on an individual or a seditious libel, will ordinarily find it difficult to get it printed, which is what the law intends, and he may find it more difficult to get it printed by a printer who has been required to furnish security than by a printer who has not yet been required to do so, which again is what the law intends. Is there, however, in principle any objection to the exercise of this further measure of control by the State? Professor Dicey in his Law of Constitution, 8th edition, page 244, observes: “No sensible person will argue that to demand a deposit from the owner of a newspaper or to impose other limitations upon the right of publishing periodicals is of necessity inexpedient or unjust.” A fortiori this observation applies to the keeper of a printing press, such as the appellant is, who publishes leaflets or pamphlets of the kind we are now concerned with. It is, and always has been, well-settled both in England and in India that security may be taken from a person who has committed certain crimes or who, having committed a certain crime, is thought to be likely to commit that crime again. As will appear later, a person who publishes matter of the kinds referred to in clauses (a) and (b) of section 4(1) of the Press (Emergency Powers) Act, 1931, commits a crime. It is true that security is, in the first instance demanded by the executive, but against its order there is a right of appeal, and the appeal must be heard by a bench of three High Court Judges. There is, in substance, in such a case at least, no serious departure from what Professor Dicey calls the rule of law. It is also true that, in recent times, so far as I can ascertain, security has never, in England, been demanded from a printer. But security has, on occasion, been demanded from persons proposing to address public meetings [Wise v. Dunning)] In other words, the taking of security has sometimes been used to fetter the expression of opinion. I am unable to subscribe to the sweeping generalisation of my brother Ramaswami, on which his whole judgment appears to me to be based, that the taking of security is something alien and repugnant to “the concept of the freedom of the press”. Article 21 of the Constitution is so drawn as to preserve to the Courts the power to demand security under Chapter VIII of the Code of Criminal Procedure. Why should it be supposed that the Constituent Assembly intended that the practice of requiring the keeper of a printing-press to deposit security in order to prevent the publication of seditious libels should cease? In construing the relevant, provisions of the Constitution, it is, in my opinion, necessary to keep any such a priori assumption out of one's mind. Indeed, if any assumption at all is to be made, it ought, I think, to be an assumption the other way.

Article 19(1)(a) of the Constitution provides that all citizens shall have the right to freedom of speech and expression. It is clear that the word “expression” is used by way of amplification of the word “speech” which immediately precedes it. Subject to what is contained in article 19(2), article 19(1)(a) renders immune from punishment not merely the individual citizen who gives expression to his opinions in conversation or at a public meeting, but also to the journalist, the writer, the printer, the sculptor, the dramatist, and, in short, every kind of creative artist. The editor of a newspaper, who moulds or is in a position to mould public opinion, may, perhaps, come within the purview of the article, but in my opinion, the keener of a printing press, quite certainly, does not. Printing may sometimes be an art but the generality of printers do not give expression to ideas and opinions of their own. They are merely engaged or employed by other persons to give a wider publicity than could otherwise be achieved, to ideas and opinions of their. Indirectly, no doubt, the article may operate in such a way as to prevent certain restrictions being imposed on printers. It is for instance, not open to Parliament to enact a law that, before printing any book or pamphlet, which he may have been employed to print, the printer shall submit it for pre-censorship. The reason, however, why such a law would now be an unconstitutional law is not that it imposes a restriction on the printer, but that in substance, it is a restriction imposed on the writer or author. It is well known that the Constituent Assembly examined the constitutions of other countries. Now, there are constitutions in which not merely the right to speak, write and publish, but also the right to print is conferred on all citizens. An instance in point is article 18 of the Belgium Constitution of 1832 which is reproduced in Dicey's Law of the Constitution, 8th edition, page 234, and the constitutions of some of the component States in the United States of America (vide Colley's Constitutional Limitations, Volume 2, page 876). I refer particularly to the Belgium Constitution of 1832 as, not only does it confer on every citizen the right to print, but also prohibits the taking, of security from the keeper of a printing-press. It will be observed that, under it the keener of a printing-press is immune from punishment if the author of the book or pamphlet, which he has printed, is a person who is known and who is domiciled in Belgium. So long as the keeper of a printing-press takes the precaution of ascertaining who the author is and that he is domiciled in Belgium and can, in consequence, be made liable for the publication of matter which offends against the law, the printer is no more responsible than is the colour-man who supplies the canvas and paints with which an artist paints an obscene picture. The article appears to have been drawn in such a way as to enable writers and authors to obtain without any difficulty the services of a printer and so disseminate to the widest possible extent their opinions and ideas. In other words, the right conferred on printers was, in substance, a right conferred on writers and authors. As, however, I have already pointed out, it is an integral part of the system of control, albeit indirect control, over the press which obtains in the English-speaking world that the printer shall be as much responsible at law as is the writer or author. I am unable to read into the word “expression” in article 19(1)(a) any implied right in writers and authors to obtain the services of printers to enable them to reach the widest possible public. In other words, I can find nothing in the five words contained in this article which leads me inevitably to the conclusion that the power to demand security from the keeper of a printing-press is a power which the executive may no longer exercise.

If this is the correct interpretation of article 19(1), there is an end of the matter. But I will assume, for the sake of argument, that the article does, in fact, confer on the keeper of a printing press a right to print whatever he may choose, and proceed to consider whether the taking of a deposit is not one of the restrictions which may be imposed on the exercise of this fundamental right under article 19(2). It is clear that the principal object of the Constituent Assembly in enacting this article was to define the limits within which Parliament might, and beyond which Parliament might not, make the dissemination and propagation of ideas and opinions a crime. More particularly, the Constituent Assembly would seem to have restricted within narrower limits the crime, which is ordinarily known as the crime of seditious libel, and given to the citizens of India a right to criticise the Government, which is at least as ample as that enjoyed by the citizens of the United States of America and more ample than has ever been enjoyed by the citizens of Great Britain and the Dominions of the British Commonwealth. If, however, this had been the sole object of the Constituent Assembly, it would not have used the language which it did. The expression “law relating to libel” cannot possibly be construed as connoting nothing more than a law which makes libel punishable. If that were so, the provision of law which requires the name and address of the printer to appear on every book and pamphlet and requires the name of every editor, printer and publisher of a newspaper to appear on every copy of a newspaper would have ceased to be a valid law. For the reasons which I have already indicated, these provisions are part of the law relating to libel. By a parity of reasoning it must, I think, be concluded, that the provisions contained in section 4(11)(a) and (b) of the Press (Emergency Powers) Act, 1931, which enable security to be demanded from the keeper of a printing press, are part of the law relating to seditious libel. In order to prevent any misunderstanding, I wish at this stage to point out that clauses (c) to (i) in section 4(1) of the Act enable security to be demanded in a wide variety of circumstances. If the construction which I am myself disposed to put on article 19(1) is wrong and if printers have a fundamental right to print any matter they may choose, it may well be that, in certain of these circumstances, the demand for security can no longer be supported. But the narrow point which I have to decide here is whether security may be demanded from the keeper of a printing press who has published matter of the kind referred to in clauses (a) and (b) which are severable from the other clauses. In construing these clauses, it is permissible and, indeed, necessary to employ the method of historical investigation. The Press Act of 1910 was enacted in order to combat terrorist or revolutionary crime. It was repealed in 1922 because such crime had become far less common. It was re-enacted in 1931 because there had been a recrudescence of such crime, and in the following year it was enlarged and modified in consequence of non-co-operation movement. Although the promoters of that movement desired it to be a peaceful and nonviolent movement, certain persons took advantage of it to commit violent crime in order to effect a revolution and overthrow the existing system of government. Bearing this in mind, it seems to me quite clear that clause (a) of section 4(1) was aimed at political assassination and the commission of violent crimes intended to overthrow or weaken the State and that clause (b) was aimed at those who glorified such crime and, more particularly, preached the doctrine that, in certain circumstances and in order to achieve certain ends, murder was no crime at all. Mr. Basanta Chandra Ghosh, for the appellant, conceded that the language used in clause (a) of section 4(1) might justify a demand for security from the keeper of a press who had published a seditious libel, but contended that it might also justify a demand for security from the keeper of a press who had published a document which was not a seditious libel. In this connection the learned advocate, for the appellant, put forward a very extraordinary argument. Mr. Ghosh asked us to suppose that some individual had made himself a terror to the locality in which he lived and that eventually certain persons in that locality decided to print and circulate a leaflet suggesting that he should be killed. I agree with Mr. Ghosh that, if security was demanded from the keeper of a press at which such a document was printed, this Court would have to set the order aside as such a document is not a seditious libel and, quite possibly, not a libel at all. But, in doing so, it would be incumbent on this Court to point out to the authorities that other and more appropriate action might be taken. In Queen v. Most, one Johann Most was indicted for having published an article in a newspaper extolling the assassination of the Empress of Russia and holding it up as an example to revolutionaries throughout the world. Johann Most was tried and convicted for having published a seditious libel, but was also tried and convicted under 24 and 25 Victoria, Chap. 100, section 4, which made it an offence for persons to “conspire, considerate and agree to murder any person”, the reason being that the punishment provided for that crime was a more severe punishment than could be inflicted for the crime of seditious libel. It was contended that Johann Most could not be convicted as it was not shown that he had come into direct contact with any of the persons who read the newspaper and could not, therefore, be said to have incited them. This argument was overruled. I am inclined to think that, if ever a case of the kind suggested by Mr. Ghosh arises, it will not be impossible for the persons responsible to be prosecuted under the Penal Code. Much reliance was placed by Mr. Ghosh on two recent decisions of the Supreme Court—Romesh Thappar v. State Of Madras and Brij Bhushan v. the State of Delhi. The orders complained of in these cases were orders prohibiting the entry into or the circulation, sale or distribution in the State of Madras in the one case and in the State of Delhi in the other of two newspapers. In Ireland, from time to time, power has been conferred on the executive to seize and destroy newspapers or other publications containing seditious libels. A power of that kind is in effect a power of pre-censorship, and, under the Indian Constitution, cannot be conferred on the executive except in periods of emergency. The power conferred by the State of Madras and the State of Delhi, namely, a power to seize a certain newspaper, whether it contained matter amounting to a seditious libel or not, was a still wider power and one which is clearly prohibited by the Constitution. Pre-censorship and still more what was done or authorised to be done in Madras and Delhi is a direct invasion of the fundamental right of the editor and journalists who used the columns of those newspapers to give expression to, their opinions. What has been done here does not amount to an invasion of the fundamental right of the author of this pamphlet or leaflet. It is true that the press itself has been subjected to a further measure of control, but a control of exactly the same kind as is already imposed by the existence of a law which makes seditious libel a crime. If it is a restriction on any fundamental right possessed by the printer—and I do not myself think he has any—it is a restriction permitted by article 19(2). I have read and re-read the judgments of the Supreme Court, and I can find nothing in them myself which bears directly on the point at issue, and leads me to think that, in their opinion, a restriction of this kind is no longer permissible. I do not think it necessary to refer to any of the observations of Their Lordships except one which occurs towards the end of the judgment and on which Mr. Ghosh greately relies. Sastri, J. there said: “Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.” Now, it is clearly possible to sever clauses (a) and (b) from the clauses which follow them in section 4(1) of the Press (Emergency Powers) Act. There can be no doubt that a person who publishes a pamphlet or leaflet, such as has been published by the appellant, in which assassination and violence are advocated as a means of bringing about a change in the existing order in the State, is guilty of publishing, a seditious libel. That is so even under the narrower definition of “seditious libel” contained in Article 19(2) of the Constitution. The language used by Sastri, J. cannot, in my opinion, possibly support the argument of Mr. Ghosh that, as security may be demanded from the publisher of a leaflet advocating, for personal reasons, the murder of a private individual, security cannot be demanded from the keeper of a press which has published a seditious libel. As I have just pointed out, the action appropriate in such a case, if it ever arises, would be not to demand security from the press, but to prosecute the keeper of the press and other persons concerned for conspiracy to murder. The mere circumstance that a wholly wrong and unjustified use may conceivably be made of a power conferred on the executive is no reason whatever for supposing that power is one which cannot be conferred under the Constitution. At the present time in this country, as in other countries, subversive ideas are abroad, and there is reason to believe that some of those who propagate and disseminate such ideas have already been guilty of great and atrocious crimes, such as the derailment of passenger trains attended with great loss of life and suffering as well as material loss and damage to the State. It is notorious that the leaders of such subversive movements make use of small printing presses to put into circulation leaflets and pamphlets which, they hope, may win converts to their cause. It is also notorious that the keepers of such printings presses are frequently, as is this appellant, pardanashin women or persons whom it would be useless to prosecute for seditious libel. In other words, by having resort to such printing presses, the promotors of such movements are seeking to evade the law which makes seditious libel a crime, and, in requiring the keepers of such printing presses to deposit security, the State is taking counter measures. The Constitution of India has this peculiarity that, instead of leaving it to Parliament to examine the statute book and repeal any law which infringes on a fundamental right, it imposes on the judiciary the duty of declaring that law void. In discharging this onerous duty, the judiciary, in my opinion, ought to proceed with caution and circumspection. It ought not to declare an existing law to be void unless it is incluctably driven to the conclusion that it is, and it ought also to hesitate to come to that conclusion when the consequences of it will be to deprive the executive of a weapon which it may need to combat subversive movements and preserve the safety of the infant State. I do not feel myself driven to any such conclusion in the present case. It ought to be, and indeed, under the Constitution, must be, left to Parliament in its own good time and wisdom to repeal such provisions as are contained in the Press (Emergency Powers) Act, 1931, as it thinks fit. I would, therefore, myself dismiss this application, but, as my learned brothers are both of opinion that section 4(1)(a) and (b) of the Press (Emergency Powers) Act has ceased to be a constitutional law, the order of the Court must be that the application is allowed, and the order complained of is set aside.

Ramaswami, J.:— The important question raised in this case is whether section 4(1)(a) of the Press (Emergency Powers) Act of 1931 (which will be referred to as the Press Act) is constitutionally valid.

The petitioner, Srimati Shaila Bala Devi, is the keeper of a printing press, known as “Bharati Press” in Purulia town. On the 8th of September 1949, the Governor of Bihar in exercise of the powers conferred under sub-section (3) of section 3 of the said Act, ordered the petitioner to make a deposit of Rs. 2,000 with the Deputy Commissioner of Manbhum. It was alleged in the notice that the “Bharati Press” was used for the purpose of printing and publishing matters in a Bengali leaflet entitled “Sangram” which was of the nature described in clause (a) of sub-section (1) of section 4 of the Press Act.

The order of the Government states:

“Whereas it appears to the Governor of Bihar that the Bharati Press, Purulia, is used for the purpose of printing and publishing matters specified in the schedule annexed hereto which are of the nature describe in clause (a) of sub-section (1) of section 4 of the Indian Press (Emergency Powers) Act, 1931 (XXIII of 1931).

Now, therefore, the Governor of Bihar, in exercise of the powers conferred by sub-section (3) of section 3 of the said Act, is pleased to order the keeper of the said Press to deposit with the Deputy Commissioner, Manbhum, on or before the 19th day of September, 1949, security to the amount of Rs. 2,000 (rupees two thousand) in money or in Government securities”.

The petitioner asserts that this order violates the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. She impeaches the validity of section 4(1)(a) as being void under Article 13(1) of the Constitution by reason of its being inconsistent with the fundamental right.

At this stage I should state that upon the construction of the pamphlet I agree with my learned brother Sarjoo Prosad that it encourages violent revolution and overthrow of the existing social and political order by bloodshed and destruction, and falls within the mischief of section 4(1)(a) of the Press Act. Even so, the order of the State Government demanding security should be set aside; if we hold that section 4(1)(a) of the Press Act is not constitutionally valid.

It cannot be doubted that the freedom of press is included in the concept of “freedom of speech and expression”, and connotes in the main exemption from previous restraints upon publication. The principle is inconsistent with any scheme of licence or censorship, or a regulation requiring the keeper of a press to make a deposit of cash which would be liable in specified circumstances to forfeit. In Rex v. Dean of St. Asaph. Lord Mansfield states: “To be free is to live under government by law. The liberty of the press consists in printing without any previous license, subject to the consequences of law. The law of England says Lord Ellenborough”. “is a law of liberty and consistently with this liberty we have not what is called an imprimatur; there is no such preliminary license necessary; but if a man publishes a-paper, he is exposed to the penal consequences, as he is in every other act, if it be illegal” [Rex v. Cobbett].

It is, therefore, manifest that the order of the Governor of Bihar would be a violation of the petitioner's fundamental right under Article 19(1)(a) unless section 4(1)(a) of Act XXIII of 1931 is saved by the reservation mentioned in clause (2) of Article 19 which (omitting immaterial portion) saves the operation of any “existing law in so far as it relate to any matter which undermines the security of, or tends to overthrow the State”.

Section 3(3) of Act XXIII of 1931 states:

“Whenever it appears to the Provincial Government that any printing press-…………… is used for the purpose of printing or publishing any newspaper, book or other document containing any words, signs or visible representations of the nature described in section 4, sub-section (1), the Provincial Government may, by notice in writing …………… order the keeper to deposit with the magistrate within whose jurisdiction the press is situated security to such an amount, not being less than five hundred or more than three thousand rupees as the Provincial Government may think fit to require………………”.

section 4(1)(a) empowers the Provincial Government to forfeit the security if—

“any printing press in respect of which any security has been ordered to be deposited under section 3 is used for the purpose of printing for publishing any newspaper, book or other document containing any words, signs or visible representations which—

(a) incite to or encourage, or tend to incite to or to encourage, the commission of any offence of murder or any cognizable offence involving violence………………”.

The question, therefore, arises whether the impugned section of the Act so far as it authorises the State Government to order the keeper of the press to make a deposit on the ground that such a press is used for the purpose of printing and publishing a document which “tends, to incite the commission of any offence of murder or any cognizable offence involving violence” is a law which relates to any matter which undermines the security of or tends to overthrow the State.

In criminal law, offences are classified into broad categories—(1) offences against the external and internal order, and security of the State, (2) offences against administration of justice and public authority, (3) acts injurious to the public in general, (4) offences against the person and (5) offences against-property. In the Penal Code, Chapter VI enumerates “offences against the State” which include waging war against the Queen (section 121), sedition, (section 124A), etc., because they are calculated to overthrow or undermine the security of the State, Chapter VIII enumerates “offences against the public tranquillity” which include unlawful assembly (section 141), rioting (section 146), promoting enmity between classes (section 153A), etc. Chapter XVI contains “offences affecting the human body” which include murder, hurt, criminal force and assault, etc. It is inevitable that the categories should overlap to a certain extent—riot, insurrection rebellion and levying are offences which run into each other and boundaries are not clear cut. But it is plain that the offences of murder and of violence form a distinct category from offences which tend to overthrow or undermine the security of the State. To illustrate the distinction reference may be made to the summing up of the Lord President in the trial of Andrew Hardie (1820 State Trials New Series, Vol. I, 610 at 623):

“The distinction seems to consist in this, although they may often run very nearly into each other: where the rising or tumult is merely to accomplish some private purpose, interesting only to those engaged in it, and not resisting or calling in question the King's authority or prerogative, then the tumult however numerous or outrageous the mob may be, is held only to be a riot. For example, suppose a mob to rise, and even by force of arms to break into a particular prison and rescue certain persons therein confined; or to oblige the magistrates to set them at liberty; or to lower the price of provisions in a certain market; or to tear down certain inclosures, which they conceive to encroach on the town's commons. All such acts, though severally punishable, and though they may be resisted by force, do not amount to treason”.

In the present case the question to be determined is whether section 4(1)(a) of the Press Act which refers to commission

“of any offence of murder or any cognizable offence of violence”

is a law.

“which concerns or relates to any matter which undermines the security of or tends to overthrow the State”.

It was argued by the learned Government Advocate that section 4(1)(a) should be construed to refer only to offences of political assassination or insurrection or mass violence which would undermine the security of the State. Learned counsel urged that the object of the Act was to combat the Civil Disobedience Movement which had taken a subversive form at the time of the passing of the Act, Reference was made to the Statement of Objects and Reasons in which it is said that

“it was the policy of newspapers consistently……………… to foster conditions of disorder and that a section of the press was giving direct or indirect incitement to violence and revolutionry crime.”

In my opinion this argument is unwarranted and cannot be sustained. For the principle is settled that when the language of the Act is clear and explicit it is not permissible to speculate as to what the legislature probably meant. In Administrator-General of Bengal v. Prern Lal Mullick Lord Watson pointed out that in construing, an Act proceedings of the legislature cannot be legitimately referred to but must be excluded from consideration. In a subsequent case Krishna Ayyangar v. Nallaperummal Pillai the Judicial Committee reiterated the rule that “No statement made on the introduction of the measure or its discussion can be looked at as affording any guidance as to the meaning of the words”. Reference should also be made to Queen v. Capel, in which Denman, C.J, said “we are pressed with a history of the introduction of this proviso into the Act in its passage through Parliament. Of such facts, if capable of being ascertained, we are not permitted judicially to take notice. The law must ever, be interpreted by the general rules of construction and we cannot travel out of its language in search of any supposed intention”. The function of a judicial tribunal is therefore limited to construing words employed in the Act. It is not justified in forcing into them a meaning which they cannot reasonably bear. The question is not what may be supposed to have been intended by the legislature, but what has been said. The duty of the court is to interpret and not to enact.

In the present case it is manifest that section 4(1)(a) which plainly refers to “the commission of any offence of murder or any cognizable offence of violence” cannot without strain upon the language be restricted in its scope and connotation to such aggravated forms of murder, insurrection or violence which tend to overthrow or undermine the security of the State. In my opinion section 4(1)(a) of the Act cannot be construed as directly concerning or relating to any matter “which undermines the security of the State or tends to overthrow the State”. It follows that section 4(1)(a) is an infringement of the constitutional right of freedom of speech and expression guaranteed by Article 19(1) and is in consequence void.

This conclusion is supported by the recent decision of the Supreme Court in Brij Bhushan v. The State of Delhi, in which a question was raised as to the validity of section 7(1)(c) of the East Punjab Safety Act which enacted:

“The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is necessary for the purple of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher or editor—

(c) require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny”.

The petitioners before the Supreme Court were the printer and editor of an English weekly of Delhi called “Organizer” and they prayed for issue of writs of certiorari and prohibition to the Chief Commissioner. Delhi, with a view to quash an order made on 2nd March 1950 under the impugned section of the East Punjab Safety Act, 1949, directing them “to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies………….” The order recited that the Chief Commissioner was satisfied that the “Organizer” had been publishing highly objectionable matter constituting a threat to public law and order and that action was necessary for the purpose of preventing or combating activities prejudicial to public safety and maintenance of public, order. The Supreme Court held by majority that Article 19(2) of the Constitution only reserves a law which is directed solely against the undermining of the security of the State or overthrow of it and that section 7(i)(c) of the East Punjab Public Safety Act, 1949, which authorised imposition of restrictions for the wider purposes of securing public safety or the maintenance of public order fell outside the scope of authorised restrictions under clause (2) of Article 19, and was therefore void and unconstitutional.

On behalf of the State the argument was stressed that section 4(1)(a) of the Act could not be considered wholly void as under Article 13(1) an existing law inconsistent with fundamental right was void only to the extent of inconsistency and no more. It was contended that in so far as the matter encouraging the offence of murder or any cognizable offence involving violence would affect the security of the State, the impugned provision was covered by clause (2) of Article 19 and must, it was urged, be held to be valid. Learned counsel pointed out that section 2(1)(a) of the Act would include in its connotation and scope cases of political murder, insurrection and rebellion which doubtless undermine the security of the State and the application of the section to such cases cannot be held to be unconstitutional. But the argument must be rejected in view of the principle laid down in Romesh Thappar v. State Of Madras in which the Supreme Court held that where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restriction both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits as it is not severable. In other words clause (2) of Article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases] where danger to public security is involved an enactment which is capable of being applied to cases where no such danger could arise cannot be held to be constitutional and valid to any extent.

On behalf of the State Government the argument was stressed that there is a presumption in favour of the constitutional validity of the impugned Act—that such a meaning should be given to the statute as to uphold its validity for the legislative body must be held to intend to keep within its powers. But no such presumption can be invoked in the present case. In the first place the presumption does not apply to an Act, the language of which is unambiguous and the effect clearly beyond the competence of the legislature by which the Act was passed. Only in case of doubt will “every possible presumption and intendment be made in favour of the constitutionality of the Act”. The second and more important reason is that in the present case the presumption supporting legislation is balanced by the priority given in the scheme of the constitution to the fundamental liberties. When a statute appears on its face to invade the basic guarantee in the Constitution the presumption is against the validity of the law and the burden of proof will rest upon those who defend it to show that the invasion of civil liberty is justified by the exceptions enacted. The doctrine has been stated by Mr. Justice Rutledge in the American case Thomas v. Collins.

“The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, to which determines what standard governs the choice”.

It is manifest that the Constitution has set stringent limits to permissible legislation abridging the right of freedom of speech. The preamble solemnly proclaims that the framers of the Constitution have resolved that “liberty of thought and expression” shall be secured to all the citizens of the Republic. In the scheme of the Constitution freedom of speech and expression has been designated as a “fundamental right”. The phrase is not an empty one and so not lightly used. It reflects the belief of the framers of the Constitution that exercise of these rights lies at the foundation of free government, and that without freedom of speech the appeal to reason which is the basis of democracy cannot be made. To adopt the language of Mr. Justice Murphy in Thornhill v. State of Alabama.

“The safeguarding of these rights to the ends that men may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion is essential to free Government. Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. Noxious doctrines in those fields may be refuted and their evil averted by the courageous exercise of the right of free discussion. Abridgment of freedom of speech and of the press, however, impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government.”

Upon all these grounds I hold that section 4(1)(a) of the Press Act is unconstitutional and void and the order of the State Government dated the 8th of September 1949 made against the petitioner should be set aside.

Application allowed.

K.D