Case: The State Of Bihar Vs. Shailabala Devi

2. The respondent was the keeper at all relevant times of the Bharati Press at Purulia,. A pamphlet under the heading "Sangram" was printed at the said press and is alleged to have been circulated in the town of Purulia in the district of Manbhum. The Government of Bihar considered that the pamphlet contained objectionable matter of the nature described under section 4 (1) of the Indian Press (Emergency Powers) Act and required the press to furnish security in the sum of Rs.section 3 (3) of the Act by the 19th September 1949.On the 26th September 1949, the respondent applied to the High Court under section 23 for setting aside the above order. This application was allowed by the majority of the Judges constituting the Bench. Shearer J. was of the view that the application should be dismissed.3. Several objections were raised to the validity of the order passed by the Bihar Government but it is unnecessary to mention all of them. The two points which were seriously pressed before the High Court were that the leaflet did not contain any words or signs or visible representations of the nature described in section 4 (1) of the Act, and that the provision of section 4 (1) of the Act were inconsistent with Article 19 (1) of the Constitution and as such void under Article13. The High Court reached the conclusion that the pamphlet did come within the mischief of the Act Sarjoo Prasad J., with whom Ramaswami J. concurred, on the construction of the decisions of this Court in ROMESH THAPAR v. STATE OF MADRAS, 1950 S.C.R. 594, and BRIJ BHUSHAN v. STATE OF DELHI, 1950 S. C. R. 605, found, though with some reluctance, that section 4 (1) (a) of the Act was repugnant to the Constitution and therefore void. Shearer J. however held that pamphlet was a seditious libel and that there was nothing in the two decisions of the Supreme Court referred to above which compelled the court to hold the provisions of section 4 (1) (a) of the Act to be void.

Reasoning:
4. In my opinion, Shearer J. was right in the view that there is nothing in the two decisions of this Court which bears directly or indirectly on the point at issue in the present case and that both Sarjoo Prasad and Ramaswami JJ. were in error in holding that these decisions were conclusive on the question of the invalidity of clauses (a) and (b) of section 4 (1) of the Act. Towards the concluding part of his judgment, Sarjoo Prasad J. observed as followsam 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 positionin the light of the anomalous situation pointed out above. It seems to me that the words used in the Constitution Act should be assigned a wide and liberal connotation even though they occur in a clause which provides an exception to the fundamental right vouch safed under Article 19 (1) (a) of the ConstitutionI speak with greata complete lack of understanding of the precise scope of the two decisions of this Court referred to(a) of section 4 (1) deals with words or signs or visible representations which incite to or encourage, or tend to incite to encourage the commission of any offence of murder or any cognizable offence involving violence. It is plain that speeches or expressions on the part of an individual which incite to or encourage the commission of violent crimes, such as murder, cannot but be maters which would undermine the security of the State and come within the ambit of a law sanctioned by Article 19 (2) of the Constitution. I cannot help observing that the decisions of this Court in ROMESH THAPARS CASE, 1950 SCR 594   and in BRIJ BHUSHANS CASE, 1950 S. C. R. 605 have been more than once misapplied and misunderstood and have been construed as laying down the wide proposition that restrictions of the nature imposed by section 4 (1) (a) of the Indian Press (Emergency Powers) Act or of similar character are outside the scope of Article 19 (2) of the Constitution inasmuch as they are conceived generally in the interests of public order. Sarjoo Prasad J. also seems to have fallen into the same error.5. The question that arose in ROMESH THAPARS CASE, 1950 S.C.R. 594 was whether the impugned Act (Madras Maintenance of Public Order Act, XXIII of 1949) in so far as it purported by section 9to authorise the Provincialthe purpose of securing the public safety and the maintenance of public order to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof any document or class ofa law relating to any matter which undermined the security of or tended to overthrow the State, and it was observed that whatever ends the impugned Act may have been intended to subserve and whatever aims its framers may have and in view, its application and scope could not, in the absence of delimiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State, nor was there any guarantee that those authorized to exercise the powers under the Act would in using them discriminate between those who act prejudicially to the security of the State and those who do not.Section 4 (1) (a) of the impugned Act, however, is restricted to aggravated forms of prejudicial activity. It deals specifically with incitement to violent crimes and does not deal with acts that generally concern themselves with the maintenance of public order. That being so, the decision in ROMESH THAPARS CASE, 1950 S.C.R. 594 given on the constitutionality of section 9of the Madras Maintenance of Public Order Act has no relevancy for deciding the constitutionality of the provisions of section 4 (1) (a) of the Indian Press (Emergency Powers)that as it may, the matter is now concluded by the language of the amended Article 19 (2) made by the Constitution (First Amendment) Act which is retrospective in operation, and the decision of the High Court on this point cannot be sustained.Mr. Basant Chander Ghosh contended that the amendment made in Article 19 (2) of the Constitution with retrospective operation was repugnant to Article 20 of the Constitution inasmuch as it declared a certain act an offence which was not an offence at the time when the act wascommitted. This contention is untenable. The respondent is alleged to have violated the provisions of section 4(1) (a) of the Indian Press (Emergency Powers) Act which was a law in force in the year 1949 when the offending pamphlet was published. She has not been convicted of any offence so far and is not being again convicted for the same by reason of the amendment in Article 19 (2). Article 20 has no application whatever to the present case. Article 19 (2) empowers a legislature to make laws imposing reasonable restrictions on the fundamental rights conferred under Article 19 (1) of the Constitution. It does not declare any acts which were not offences before as offences with retrospective effect. Moreover, in the year 1949, the respondent was not possessed of any fundamental right which could be said to have been contravened by the amendment.7. Though, as I have said above, the High Court is in error in the finding that the provisions of section 4 (1) (a) of the Indian Press (Emergency Powers) Act are repugnant to the Constitution, its judgment has to be maintained as it is also in error in holding that the pamphlet in question fell within the mischief of section 4 (1) (a) of the Indian Press (Emergency Powers) Act.It seems to me that the learned Judges of the High Court took this writing too seriously. It did not deserve that consideration. It is some kind ofwork, with no consistency or cohesion between its different parts. Fortions of it are unmeaning nonsense and in other parts it talks of revolution in the abstract. There is no appeal to anybody in particular or for any known or specific cause. No mention is made of any specific kind of operation or injustice that is intended to be remedied. The desire is to change the face of the earth by ending all oppression, tyranny and injustice. There is no evidence whatsoever for connecting this pamphlet with any agitation or movement at the time it was written in that locality. I have read the writing several times and I think that Mr. Ghosh is right when he says that the pamphlet contains merely 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. Writings of this character at the present moment and in the present background of our country neither excite nor have the tendency to excite any person from among the class which is likely to read a pamphlet of this nature. They will necessarily be educated people. Such writings leave their readers cold and nobody takes them seriously. People laugh and scoff at such stuff as they have become too familiar with it and such writings have lost all sting. Anyperson who promises to change the order of things by bloody revolution and assumes the role of a new Messiah is merely theof his readers and creates an adverse impression against himself rather than succeed in stirring up any excitement in the minds of the readers. Rhetoric of this kind might in conceivable circumstances inflame passions as, for example, if addressed to an excited mob, but if such exceptional circumstances exist it was for the State Government to establish the fact. In the absence of any such proof we must assume that the pamphlet would be read by educated persons in the quietness of their homes or in other places where the atmosphere is normal. I would therefore hold in the words of my brother Bose in BHAGWATI CHARAN v. GOVERNMENT OF C. P. and BERAR, I.L.R. 1946 Nag 865, that though the pamphlet in question uses extravagant language and there is in it the usual crude emotional appeal which is thetrade of the demagogue as well as a blundering and ineffective attempt to ape the poets but that is all, and there is nothing more in it. The time is long past when writings of this kind can, in normal circumstances, excite people to commit crimes of violence or murder or tend to excite anybody to commit acts of violence. Again, the language employed is full of mysticism and cannot be easily understood and it creates no impression of any kind on anylearned Government Advocate placed reliance on the decision of Harries C. J. in BADRI NARAIN v. CHIEF SECRETARY, BIHAR GOVERNMENT, AIR 1941 Pat 132   SB. The learned Chief Justice therein held that in order to show that certain words fall under section 4 (1) (a), it is not necessary to show that the words tend to incite or to encourage the commission of a particular offence or offences and that it is sufficient if they tend to incite to or to encourage the commission of cognizable offences of violence in general. In that case, a poem entitled "Labourers, the mainstay of the world" began by emphasing that labourers are the mainstay of the present world and then proceeded to describe their unfortunate and pitiful lot. In a subsequent portion, the author stated that though speeches today, when organized the labourers will be as powerful as millions and this portion of the poem ended with these wordsare you helplessly tolerating the exploitation of yourremaining lines were as followsraise now the cry of revolution. The heavens will tremble, the Universe will shake and the flames of revolution will burst forth from land and water. You who have been the object of exploitation, now dance the fearful dance of destruction on this earth, truly, labourers. Only total destruction will create a new world order and that will bring happiness to the whole word.It is quite clear that here an appeal was made to labourers inciting and encouraging them to commit acts of violence. The words used certainly tended to achieve that result. They were no empty slogans or abstract propositions. It had one consistent and coherent purpose, i.e., to excite labourers and to bring then into action. Any observation made about this writing can have no apt application for the determination of the present case. The learned Chief Justice in the concluding part of the judgment very pertinently pointed out that a commonsense interpretation must be given to the document complained of the question to be answered always being, what impression will the documents or words give to a man of ordinary common sense. My answer to this query in the present case is that the document read at first sight is not intelligible unless it is explained to that man of ordinary common sense by a learned person and hence it can by itself crate no impression of any kind on such a person. After the writing is explained to such a man, he will merely laugh at it and how it in the wastepaper basket without taking it seriously. He will refuse to believe that a person of this kind can create a new world order by appealing to a bloody revolution.13. As I pointed out in my judgment in HARKRISHAN SINGH v. EMPEROR, AIR 1946 Lah 22, the use of such words as appear in this document creates no impression on the mind of any reasonable reader. That case dealt with clause (d) of section 4 (1), but the principle underlying it also applies to the construction of writings which are alleged to fall under section 4 (1) (a). I do not mean to suggest or to lay down as a general proposition that some of the words used in the pamphlet in question in the context of any other writing would not fall within the mischief of section 4 (1) (a). Certain parts of the pamphlet, if read as isolated passages, may have the tendency to excite people to commit crimes of violence but that is not the effect if the pamphlet is read in its entirety.