Dravida Nadu, a Tamil Weekly vs The Government of the Province of Madras

The petitioner is the editor and publisher of ""Dravida Nadu,"" a Tamil Weekly which is printed at and issued from Kanchee-Puram. He seeks to

set aside the order of the Provincial Government dated 26th May 1949 directing him to deposit with the District Magistrate, Chingleput on or

before 25th June 1949 security to the amount of Rs. 3,000. The order was passed in exercise of the powers conferred by Section 7(3), Indian

Press (Emergency Powers) Act, 1931, on the ground that the issues of the petitioner''s journal dated 4th April 1948 and 18th April 1948

contained matter of the nature described in Section 4(1)(h) of the said Act. A translation in English of the offending passages from the two issues

mentioned above was appended to the order. This application has been made u/s 23 of the Act and what this Court has to decide is whether the

news, paper in respect of which the order was made did or did not contain any words of the nature described in Section 4 (1) (h) of the Act.

The words which fall within the scope of Section 4 (1) (h) are words which ""tend directly or indirectly to promote feelings of enmity on hatred

between different classes of His Majesty''s subjects.

Explanation 4 which has to be read along with the main provision is as follows :

Words pointing out, without malicious intention and with an honest view to their removal, matters which are producing or have a tendency to

produce feelings of enmity or hatred between different classes of His Majesty''s subjects shall not be deemed to be words of the nature described

in clause (b) of this Sub-section.

It is well established that on an application like this the Court should consider the writing as a whole in a fair, free and liberal spirit, without

attaching undue weight to isolated passages, sentences or phrases. The Court should gather the general effect which the whole composition is likely

to produce upon persons who may be normally expected to read the newspaper in question. Flamboyant and exaggerated language and violence

of expression ought to be certainly taken into account, but they can never be conclusive in determining whether the writing as a whole falls within

the ambit of the enactment.

In the appendix to the order of the Government two extracts are given from two articles published on the two dates mentioned in the order. The

first is from an article under the caption ""Gandhi Ramaswami and Periar Ramaswami."" It is a fairly long article but only certain passages from it

have been extracted in the appendix. We have been taken through the entire article and the learned Advocate-General appearing for the

Government has not also confined himself to the extracts appended to the Government Order. The occasion for the article is indisputably clear. It

is the election of Sri Omandur Ramaswami Reddiar as the leader of the Congress Legislative Party in April 1948. The rival candidate was Sri T.

Prakasam. The article starts with a praise of the good qualities of Ramaswami Reddiar and then poses the question : Why was there any

opposition to such a man ? The writer draws pointed attention to the fact that the opposition to him did not come from another political party, but it

arose within his own party. The circumstance would not be strange by itself if the ground of opposition was that he was not a desirable parson or

that his policy was not acceptable. This part of the article may be summed up in the following words of the writer :

There has been opposition without any reason under circumstances in which no reason has been given out openly to a leader admitted by the

people of the land to be the good man in the party governing the land, His character has not been suspected; his policy has not been attacked, no

alternative policy has been formulated. Still there is rivalry--is it rivalry ..... Why ?

The rest of the article is devoted to an analysis of events and circumstances with a view to demonstrate that the opposition was due to the intrigue

and the ""communal frenzy"" of a selfish group in the Congress Legislative Party consisting of Brahmins. The writer refers to an alleged incident which

took place immediately on the announcement of the success of Ramaswami Reddiar. There were people assembled outside who are alleged to

have cried out ""Down with Brahmins."" The writer says that cry was due to the idea among the people that the Brahmins were responsible for the

contest, and in his opinion the people were right. He asserts that the contest took place only on the issue of Brahmin and non-Brahmin. According

to him, there is a group who belong to the same party as Omandur Reddiar who thought that however great he might be, if he did not help the

domination of Brahmins, he must be removed from office and another should be installed in his place who will be of use to them. The conclusion of

the article refers to ""Dravida Ramaswami"" evidently referring to Sri E. V. Ramaswami Naicker. The writer says :

If in spite of belonging to the same group and kinship being claimed on the basis of recognising the same flag and belonging to the same party if in

spite of worthy persons praising him as the Gandhi of Tamilnadu, it should happen that the intrigue and the amazing enmity and communal frenzy of

a selfish group will beep on attacking him, then we ask in what way is the Congress Bamaswami in any far better position than the Dravida

Ramaswami.

The writer laments that enmity should have been stirred up even against a person like Ramaswami Reddiar who delighted and felt proud in calling

all Brahmins as well as non-Brahmins as the sons of India.

After reading the article in its entirety, we are unable to follow the argument of the learned Advocate. General that there is in it an attack on the

entire community of Brahmins, whether they belonged to the Congress Legislature Party or not. He tried to maintain his contention by arguing that

the Brahmin members of the Congress Legislature were representatives of that community. It is impossible for us to accept this argument, because

it is opposed to the facts, There are no separate constituencies for Brahmins and the Congress Party does not set up any candidates as

representatives of any community. All the Congress members of the Legislature were elected on a common ticket as-professing the ideals of the

Congress. Simply because some of the members happened for-belong to one community, it will be hardly accurate to say that they are there as

representatives of their community. It is a matter of common knowledge that on some matters the elected members of the Brahmin community may

be holding opinions on certain social matters opposed to a large section of the Brahmin community. We fail to see in the article any attack on the

Brahmin community as such. Again and again there is reference to a group within the Congress Party which was determined to oust Ramaswami

Reddiar from the leadership, because he would not be of assistance to their selfish ends. It may be that this group is according to the writer

composed of Brahmins. But it is difficult to hold that on this ground the article would tend directly or indirectly, to promote enmity and hatred

between the Brahmins and the non-Brahmins in general.

Article 2 is even longer than the first, though the extract appended to the Government Order is confined to the last few paragraphs. It is a

dissertation on communalism. The learned Advocate-General very properly conceded that the major portion of the article, particularly in the

beginning is in no way offensive. A few passages will suffice to show the trend of the article :

We are forty crores of human beings -- But we get divided into four thousand castes, got split and became ruined. We quarreled among ourselves

saying your cast is high ; my community is superior ; you are inferior ; you belong to low caste'' and became ruined. The foreigner took advantage

of this. So long as this wretched caste difference exists in this country, the country will not improve. Only on account of the useless caste difference

did our country remain as a slave under the white man all these days.

Tamilians must cast off caste difference completely. Only one caste ...... Only one God ..... There should be unity among us. There should be no

communalism.

The writer then traces the fight for social justice and says that the word ""communalist is being used to decry persons working for the cause of

social justice. He refers to the fact that in Hindu society the vast majority are non-Brahmins and a minority are Brahmins, but that the majority,

were treating the minority, as members of a superior caste according to the authority of the Shastras and according to the customs and manners

and that on account of this situation the majority did not get equal lights and facilities in educational, industries'', economical, political, religious and

other fields, whereas the minority community, namely, the Brahmins have made great advance in all the fields. The Brahmins who thought that the

demand for communal justice would lead to the undermining of their power styled the persons who demanded justice as communalists. So the

writer says and he develops that idea giving extracts from other newspapers like ''Dinasari'' and ""Viduthalai."" The writer next pleads for destroying

the system which has for the last several thousands of years spread and struck root and has rendered the majority community ""born slaves"" and

walking corpses."" It is here that he uses the word ""Parpaneeyam"" translated as ""Brahmanism."" He hastens to assure that he and those who hold

opinions similar to him have no hatred against the Brahmins and they are opposing only the system, namely, Brahmanism, because it is on account

of this, several troubles have arisen in the body politic. Strong language is used to portray the evils of Brahmanism. The following are typical

passages:

As a result of parpaneeyam, the big Dravida community lies broken and scattered (The members of it) have become born slaves, talking dumb

persons and walking corpses. Devoid of the feeling of sensibility, it (the Dravida community) has become a plumpy and insignificant being. Those

who have studied the medical science say that if the father has syphilis, the child that is born will become blind. How can a blind infant know the

delightful sight of the Kuvalayam (white Indian water lily) ? Likewise, the Dravida community is afflicted by the syphilis called parpaneeyam"".

The concluding portion of the article indicates how the system can be destroyed. It can be destroyed only if there is unity, discipline, courage

and self-respect in the majority community. The writer asserts that no sensible parson can come forward to support parpaneeyam by giving

reasons. ""What is called parpaneeyam is a system which like Brittanism must be destroyed."" Finally there is an exhortation not to be afraid of abuse

by interested persons. There is a reference to Mahatmaji''s death, and the article ends with the following words :

When a great man has given up his life for the lake of truth, what if we lose ordinary fame and position. It is no loss. The country will get

deliverance.

On an application like this the Court is not concerned with the tenability of the opinions expressed by the writer of the offending article. In all

controversial matters, there is bound to be two opposing opinions and it is not the Province of the Court to examine the soundness or otherwise of

the reasons which the writer may give in support of a particular view. The question and the only question is to find out if there is anything in the

article which tends directly or indirectly to promote feelings of enmity and hatred between different classes. The learned Advocate-General

conceded that if instead of the word parpaneeyam (Brahmanism) the writer had used the expression ""caste system"" then the article would not come

within the scope of Section 4 (1) (h) of the Act. But he contends that the reference to the system as Brahmanism brings it within the mischief of the

enactment, Undoubtedly, the writer proceeds on a division of the community into two groups, the minority group of Brahmins and the majority

group of Non-Brahmins, and though in the beginning of the article, there is a reference to innumerable castes and the desirability of having only one

caste, in the last portion of the article, the antithesis is between the Brahmins on the one side and the members of the other castes on the other side.

But what we think, on a reading of the entire article, is that he is denouncing the system, whether it is called caste system or Brahmanism which has

led to the superior position in society of the Brahmins. Nowhere in the article does the writer say that the Brahmins of the present day have actually

done anything. His complaint is that the system ""has in the list several thousands of years"" spread and struck root. He expressly says that he has no

hatred against the Brahmins as individuals and states in the clearest of terms in more than one place that it is the system which should be destroyed.

There is no incitement anywhere of the Non-Brahmins to act in any inimical way or to inspire them with hatred against the Brahmins. As one of us

put it from the Bench during the course of the arguments, according to the writer the only way of destroying the system is for the majority

community to cast off their inferiority complex and to cultivate unity, discipline and self-respect. Except the passage which we have already cited,

there are no other passages in which the language is extravagant and violent.

When a writer sets out to ventilate the grievances of a class or community there is ex- necessity a likelihood of criticising adversely the action of

the class or community which is alleged to be taken as unfair advantage. In all such cases it would be wrong to say that a writing which ventilates

the grievances of a particular class or community would fall within the mischief of the enactment. Dealing with the provisions of the Indian Press

Act, 1910, and referring to Expln. 2 to Section 4(1) of that Act, their Lordships of the Judicial Committee in Annie Basant v. Advocate-General,

Madras, 43 Mad. 146 : A. I. R. 1919 P. C. 31 observed as follows :

The balancing of important political considerations which is effected by adding Expln. 2 to the enacting words, which are found in the earlier part

of the section has its analogy in Sections 124-A and 153-A, Penal Code. The language is not precisely the same, but there is the same delicate

balancing of two important public considerations, the undesirability of anything tending to excite sedition or to excite strife between classes and the

undesirability of preventing any bona fide argument for reform......The utmost that can be said is that the addition of the explanation with its

apparent repetition of the positive enactment in the guise of a qualification of the explanation shows an almost meticulous care to balance the two

considerations, prominence being given to the first consideration in the first part of the section, and to the second in the explanation.

In applying these balancing principles, it is inevitable that different minds may come to different results, one mind attaching more weight to the

consideration of freedom or argument, and the other to the preservation of law and order or of harmony."" More apposite to the present case are

the observations as regards the question of hatred or contempt of a class or a section. It was argued that the object of the article before them was

to attack the system, not a class or section. They say :

It may be assumed, for the purposes of this case, that there may be reference to a class or section of His Majesty''s subjects so couched as to

show that the attack is merely upon a school of opinion, and that unless the language is such as to excite hatred or contempt of persons, It may

escape condemnation. But assuming this, the appellant remains face to face with the difficulty that there is language used in certain of the articles

which may legitimately be construed as tending by inference or suggestion to excite hatred or contempt in such a fashion that it pay become

personal.

It may well be that the primary object was a legitimate attack upon a system, but unless care is taken it becomes difficult to make a fierce attack

upon a system without conveying some imputation upon the class which the system makes or which carries the system into practice. And it must be

remembered that those words in cl. (c) which refer to the hatred or contempt of a class or section are not limited by Expln. II, and that there has

been in this respect some departure from the policy of the Penal Code, which superadded a qualifying explanation which has not found place in the

Press Act.

It is necessary to say at once that there is no longer the departure from the provisions of the Penal Code (Section 153-A) in the Press

(Emergency Powers) Act. Explanation 4 to Section 4 substantially reproduces the explanation to Section 153-A, Penal Code.

Even if we were to hold that there has been in the article a fierce attack upon the system which, according to the writer, has resulted in the

subordination of the majority community by a small minority, we do not find any imputation upon the minority class, i.e., the Brahmins. There is in

our opinion no language to excite hatred or contempt of persons. Explanation 4 in our view, would very much cover a case like the present. The

learned Advocate General conceded that the writer does not call upon the Non-Brahmins to take any action against the Brahmins which is likely to

injure them.

Enmity and hatred are strong words. In a world of conflicting claims, it would be manifestly unfair to characterise every expression of

dissatisfaction and every ventilation of grievances as tending to the promotion of enmity and hatred. To point out facts and circumstances to serve

as an incentive to unity among the members of one class is not to create hatred or enmity between classes. It is true that here and there are

sentences and phrases which are not moderate and occasionally are provocative. The use of the word ''''Parpaneeyam"" is also certainly unhappy.

But as the security provisions of the Press Act are in a sense penal, the benefit of the doubt, if there is any, should always be given to the person

against whom action is taken. This is a case in which even if there be a doubt, the benefit should go to the petitioner.

A few decisions were cited before us, but we do not think any useful purpose will be served by discussing them as our decision must almost

entirely depend upon the language of the particular offending articles.

We hold that the articles in question do not contain words of the nature described in Section 4 (1) (h) read with Expln. 4, Press (Emergency

Powers) Act and set aside the order of the Provincial Government directing the petitioner to deposit security to the amount of Rs. 3,000.