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Judgment
P.V. Rajamannar, Officiating C.J.
This is an application u/s 23 of the Indian Press (Emergency Powers) Act, 1931, as amended by the Criminal Law Amendment Act, 1932, to
set aside the order of the Provincial Government, dated 7th August, 1947, passed u/s 7(3) of the said Act, directing the petitioner who is the
publisher of a newspaper entitled, "" Prajasakthi "" to deposit with the District Magistrate of Kistna on or before 25th August, 1947, security to the
amount of Rs. 2,000. The ground on which the order was passed is contained in the preamble to the order of the Government which runs thus:
Whereas it appears to the Government of Madras that the issues, dated 7th, 12th March, and 8th, 26th and 28th July, 1947, of the newspaper
entitled "" Prajasakthi "" published at the "" Prajasakthi Press "", Bezwada and in respect of which newspaper security under the provisions of the
Indian Press (Emergency Powers) Act, 1931, has not been required, contained matter of which a translation in English is appended hereto, of the
nature described in Section 4(1)(d) and (i) of the said Act;
The enclosure contained five extracts from the issues of the above dates.
Section 4(1)(d) and (i) run as follows:
(1) Whenever it appears to the Provincial Government that any printing press in respect of which any security has been ordered to be deposited
u/s 3 is used for the purpose of printing or publishing any newspaper, book or other document containing any words, signs or visible
representations which tend directly or indirectly;
(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 or section of His Majesty''s subjects in British India, or to excite disaffection towards His Majesty or the said Government, or
(i) to prejudice the recruiting of persons to serve in any of His Majesty''s forces, or in any police force, or to prejudice the training, discipline or
administration of any such force;
It is necessary also to refer to two explanations to this section:
Explanation 2.--Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means
without exciting or attempting to excite hatred, contempt or disaffection shall not be deemed to be of the nature described in Clause (d) of this
Sub-section.
Explanation 3.--Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to
excite hatred, contempt or disaffection shall not be deemed to be of the nature described in Clause (d) of this sub-section.
It may be mentioned at the outset that in our opinion there is nothing in any of the passages appended to the order of the Government which
would fall within Clause (i) of Section 4, Sub-section (1). The clause appears to be wholly inapplicable to the articles in question as they do not
have any reference to recruiting of persons to serve in any of His Majesty''s forces or in any police force, nor have they any prejudicial effect on
the discipline or administration of any such force. The question therefore for determination is whether the passages in question contain any words
which bring into hatred or contempt the Government established by law in British India, or any class or section of His Majesty''s subjects in British
India, or excite disaffection towards the said Government.
This clause has been considered recently in two decisions of Special Benches of this Court, namely, in O.P. No. 171 of 1947, and in O.P. No.
249 of 1947, (published as footnotes below) and we have derived considerable assistance from the Se two decisions.
The learned advocate for the petitioner wanted to rely upon certain affidavits filed by persons not parties to this petition deposing to certain
events alleged to have happened in the villages to which they belong. These affidavits were obviously filed to support a contention that the facts
alleged in some of the articles in question were true or in any event the writer or writers of the articles had material before them which justified the
articles. We have excluded these affidavits from consideration, because it has been ruled in the, two Special Bench decisions referred to above that
the truth or falsity of the impugned matter is immaterial for a determination of the question arising u/s 23 of the Act.
We have also refused to take into account two articles which appeared in two other Telugu newspapers which, according to the petitioner,
contained matter more or less similar to the matter contained in the impugned articles. The contention evidently is that as the Government have not
taken any action under the Act against the said two newspapers the action taken by the Government against the petitioner was not justified. In our
opinion, this argument is based upon a fallacy. If the impugned matter is such that it would fall within any of the clauses of Section 4, then the fact
that the Government failed to take action against other newspapers which published such matter cannot be a plea in defence to action taken by the
Government against the petitioner. Further, we are unable to hold that extracts from other newspapers would be admissible evidence under any
section of the Evidence Act.
It is convenient to deal with the passages extracted in the appendix to the Government order according to the dates. The first is from the issue
dated 7th March, 1947. The impugned article is headed "" Workers'' Minimum Demands Day--Meeting and demonstrations to be Celebrated on
March 18, 1947."" The sub-heading runs :--"" Andhra Trade Union''s call to the Workers."" The particular passage on which special emphasis was
laid by the learned Advocate-General may be reproduced. It runs thus:
The Congress leaders who have become ministers at the Centre and the Provinces, have been trying to put down this movement having fallen
victims to the capitalistic and imperialistic pressure.. The cruel policy of repression of the Imperialists is to-day being adopted by the Congress
Ministers over these movements. The Madras Ministry abandoned the election manifesto and has taken recourse to the Public Safety Ordinance
resulting in detentions and opening of fire by the police. It has intended to crush down the communists who are conducting the workers'' fight. On
the other side the Workers'' Dispute bill intended to destroy the workers'' right to strike is being enforced.
The workers and trade unions are taking the primary place in these peoples'' fight facing the repressive policy of Government....The sacrifices
made and the courage exhibited by the workers with an ultimate idea of crushing down the Imperial and Capitalists'' lootings can never be
forgotten. So it is incumbent on us to take up the fight with the united strength and revolutionary spirit on behalf of those who have sacrificed their
lives for achieving their sacred ideals.
It has been held by a Special Bench of this Court that the Cabinet of Ministers belonging to the Congress party which was administering the
Government of the Province of Madras must be held to be the Government established by law in British India within the meaning of those words in
Section 4(1)(d). The question then is whether there is any tendency, direct or indirect, in these words to bring into hatred or contempt this
Government established by law, or to excite disaffection towards the said Government. The gravamen of the charge made in the article in question
is that the Congress party in power has taken a capitalistic attitude and has an intention of crushing down the communists. It is this policy of the
Ministry and the action taken in pursuance of this policy that come in for criticism. Now it is quite clear that before we can hold that the words in
question have the tendency set out in Clause (d) of Section 4(1) of the Act it must be clear to us that this tendency must be felt by the ordinary man
in the street. In our opinion, it would not be sufficient that a member of the Communist party, on reading the article in question, will entertain
feelings of enmity or hatred against the Government, to bring the words within the mischief of the enactment. It will be indeed a dangerous doctrine
to hold that any adverse expression of opinion of the action of a particular party then in power by an organ or member of an opposite party should
by itself be held to fall within the enactment. No doubt if the language used is so violent and exciting as to lead to violence, insurrection or
disturbance, it may fall within other provisions under which appropriate action might be taken against the authors of such writing. Taking the
present article, there is nothing to suggest that the Government was guilty of any lootings. The utmost that can be said is that the action of the
Government is described as being definitely anti-communist and that it is inspired by capitalistic tendencies. In our opinion, this criticism of the
action of the Government, even if the disapprobation is expressed in strong language, would not fall within Section 4(1)(d) of the Act.
The passage is from the issue, dated 12th March, 1947, entitled "" New Criminal Tribes Act--Public Destruction Act--Worse than C.T. Act.
This article is, in its entirety, a criticism of the Public Safety Act. Comparison is made between the alleged drastic provisions in the two Acts
impinging on the freedom of the citizen, and it is said that the new Act, namely, the Public Safety Act, is in some respects, worse than the Criminal
Tribes Act and that it may be styled the Public Destruction Act. Some of the provisions of the new Act are severely attacked, and the article ends
with these words:
It is the duty of the public to agitate for the repeal of the Act which crushes the civil liberties. The patriots should bring pressure over the Ministry
for the release of the detenus suffering under this Act.
We have no hesitation in holding that this article would fall within Explanation 2 as being in the nature of an expression of disapprobation of the
measure of the Government with a view to obtain their alteration by lawful means. There is here no exciting or attempting to excite hatred,
contempt or disaffection. As has been held in one of the Special Bench cases, mere use of even vitriolic language is not by itself sufficient to bring
the words within Section 4(1)(d) of the Act. {Vide O. P. No. 249 of 1947 : (1948) 2 M.L.J. 169).
The three extracts from the issues of 8th, 26th and 28th July, 1947, go together. They relate to alleged atrocities committed by the police in
certain villages, namely, Munagala, Karivarala and Kolakova. The acts which the police are alleged to have committed are certainly high-handed,
cruel and indecent. But there is little or no comment in any of these three articles besides a statement of events alleged to have occurred.
It has been held that the police force as such forms part of the Government established by law in British India, vide In the matter of The
zamindar Newspaper, Lahore AIR 1934 Lah. 219 and O. P. No. 249 of 1947 2. In In Re: ""Janasakti"" of Sylhet and Others, it was held by a
Special Bench of the Calcutta High Court that when accusations were directed at nine police officers but there was no suggestion that the
misconduct of these officers was approved of by the administration or was part of a deliberate policy of repression, the words were not of the
nature described in Section 4(1). This statement of the law was apparently approved by the learned Judges who took part in the two Special
Bench decisions referred to above. The learned Judges say that a newspaper article criticising the action of nine police officers was held not to fall
within Section 4(1) of the Act when it was not suggested that their conduct was approved of by the administration (vide O. P. No. 249 of 1947 :
(1948) 2 M.L.J. 169). We have carefully examined the three articles. There is nothing in any of them to suggest that the high-handed and atrocious
acts alleged to have been committed by the police were committed under the orders or at the instance of the Government or with the approval
express or tacit of the Government. On the other hand, the last of the articles dated 28th July, 1947, concludes with an appeal to the Government.
The article which appears to be a statement issued by the Munagala Ryots'' Association and the Communist committee ends with these words:
We can prove the atrocities of the police if you personally visit the place and enquire into the matter. The police should be withdrawn so that the
people can approach you direct and present the matter. We request that the police who are responsible for the cruel acts should be punished and
they should be withdrawn from the estate.
These words certainly do not indicate that in the opinion of the writer the acts of the police complained of were at the instance or with the approval
of the Government. In O. P. No. 171 of 1947 : (1948) 2 M.L.J. 167 in which the learned Judges held that the articles fell within Section 4(1)(d)
there was an express imputation that the atrocities committed by the police were with the approval of the Government. In one of the impugned
articles it was stated that Mr. Prakasam, the then Prime Minister, had given an assurance of protection to the police and had shamelessly said that
the police and himself had become one. In the other case, in O. P. No. 249 of 1947 : (1948) 2 M.L.J. 169 the learned Judges held that there was
a clear suggestion that the Ministry did not take any steps to prevent the wrongs being committed by the police and that, on account of the conduct
and action of the police, black-marketeers, bribe-takers and others were free to pursue their wrong-doings, and those who opposed their activities
were liable to prosecution. As we have said, there is nothing in any of the last three articles similar to such suggestions. These also will therefore not
come within the mischief of Section 4(1)(d) of the Act.
The petition is therefore allowed and the order of the Government is set aside. The amount deposited as security shall be refunded to the
petitioner. The petitioner will be entitled to the costs of this petition.