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PETITIONER:

THE STATE OF BIHAR

Vs.

RESPONDENT:

SHAILABALA DEVI

DATE OF JUDGMENT:

26/05/1952

BENCH:

MAHAJAN, MEHR CHAND

BENCH:

MAHAJAN, MEHR CHAND

SASTRI, M. PATANJALI (CJ)

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BOSE, VIVIAN

CITATION:

1952 AIR 329 1952 SCR 654

CITATOR INFO :

D 1960 SC 633 (9)

RF 1967 SC1643 (165)

RF 1973 SC1091 (2)

RF 1973 SC1461 (1705)

ACT:

Indian Press (Emergency Powers) Act (XXIII of 1931) s.

4 (1) (a)__Constitution of India, Arts. 19(1) and

19(2)--Restrictions imposed by s. 4 (1) (a) on freedom of

speech and expression--Whether fall within Art.

19(2)--Validity of s. 4(1)--Speeches of political dema-

gogues--Construction--Burden of prosecution.

HEADNOTE:

Section 4 (1) (a)of the Indian Press (Emergency Pow-

ers) Act (XXIII of 1931) is not unconstitutional as the

restrictions imposed on freedom of speech and expression by

the said section are solely directed against the undermining

of the security of the State or the overthrow of it

and are within the ambit of Art. 19(2) of the Constitution.

Romesh Thapar's case ([1950]

655

S.C.R. 594]) and Brij Bhushan's case ([1950] S.C.R. 605)do

not lay down any wide proposition that restrictions of the

nature imposed by s. 4 (1) (a) are outside the scope of Art.

19 (2) as they are conceived generally in the interests of

public order. At any rate, the amendment made to Art. 19 (2)

by the Constitution (First Amendment) Act which is retro-

spective in operation makes the matter clear.

In order to determine whether a particular document

falls within the ambit of s. 4(1) the writing has to be

considered as a whole in a fair, free and liberal spirit,

not dwelling too much on isolated passages or upon a strong

word here and there, and an endeavour should be made to

gather the general effect which the whole composition would

have on the minds of the public. Expressions which are the

stock in trade of political demagogues and have no tenden-

cy to excite anybody, and exaggerations in language, cannot

lead to that result. Rhetoric of this kind might in con-

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ceivable circumstances inflame passions, as for example, if

addressed to an excited mob, but if such circumstances exist

it is for the Government to establish the fact.

JUDGMENT:

APPELLATE JURISDICTION: Case No. 273 of 1951. Appeal

under Arts. 132 (1) and 134 (1)(c) of the Constitution of

India from the Judgment and Order dated I3th October, 1950,

of the High Court of Judicature at Patna (Shearer, Ramaswami

and Sarjoo Prosad JJ.) in Miscellaneous Judicial Case No.

220 of 1949.

S.K. Mitra (K. Dayal, with him), for the appellant.

Basant Chandra Ghosh and Arun Chandra Mitra for the

respondent.

1952. May 26. The Court delivered judgment as

follows:--

MAHAJAN J.--This appeal has been preferred by the State of

Bihar against the judgment of a Special Bench of the High

Court of Judicature at Patna allowing the application of the

respondent under section 23 of the Indian Press (Emergency

Powers)Act, XXIII of 1931. It appears that the petition was

argued by both the sides as it was one made under article

926 of the Constitution.

The respondent was the keeper at all relevant times of

the Bharati Press at Purulia, A pamphlet under

85

656

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. '2,000, under 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.

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 representation of the

nature described in section 4 (1) of the Act, and that the

provisions of section 4 (1) of the Act were inconsistent

with article 19 (1) of the Constitution and as such void

under article 13. The High Court reached the conclusion

that the pamphlet did come within the mischief of the Act.

Sarjoo Prosad J., with whom Ramaswami J. concurred, on a

construction of the decisions of this Court in Romesh Thapar

v. The State of Madras(1), and Brij Bhushan V. The State of

Delhi(2), found, though with some reluctance, that section 4

(1) (a) of the Act was repugnant to the Constitution and

therefore void. Mr. Justice Shearer, however, held that the

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.

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

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present case and that both Sarjoo Prosad

(1) [1950] S.C.R.594. (2) [1950] S.C.R. 605.

657

and Ramaswami JJ. were in error in holding that these deci-

sions 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 Prosad J. ob-

served as follows:--

"I am compelled to observe that from the above discus-

sions of the Supreme Court judgments, it follows logically

that if a person were to go on inciting murder or other

cognisable 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 of-

fends 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, there-

fore, wish that my decision on the point would sooner than

ever come to be tested by the Supreme Court itself and the

position reexamined in 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 pro-

vides an exception to the fundamental right vouchsafed under

article 19 (1)(a) of the Constitution Act."

These observations--I speak with great respect-disclose

a complete lack of understanding of the precise scope of the

two decisions of this Court referred to above. Section 3

(3) of the Act under which the notice was issued in the

present case enacts as follows:

"Whenever it appears to the Provincial Government that

any printing press is used for the purpose

658

printing or publishing any newspaper, book or other document

containing any words, signs or visible representation of the

nature described in section 4,sub-section (1), the Provin-

cial Government may, by notice in writing to the keeper of

the press .....order the keeper to deposit with the Magis-

trate security ..." Clause (a) of section 4 (1) deals

with words or signs or visible representations which incite

to or encourage, or tend to incite to or encourage the

commission of any offence of murder or any cognizable of-

fence 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 matters 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 Thapar's case(1),

and in Brij Bhushan's case(2) 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

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order. Sarjoo Prosad J. also seems to have fallen into the

same error.

The question that arose in Romesh Thapar's case(1) was

whether the impugned Act (Madras Maintenance Public

Order Act, XXIII of 1949) in so far as it purported by

section 9 (1-A) to authorise the Provincial Government "for

the purpose of securing the public safety and the mainte-

nance 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

of documents" was a law relating to any matter which under-

mined 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

(1)[1950] s.C.R. 594. (2) [1950] S.C.R.

605.

659

aims its framers may have had 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 prejudical-

ly to the security of the State and those who do not. Sec-

tion 4(1)(a) of the impugned Act, however, is restricted to

aggravated forms of prejudicial activity. It deals specifi-

cally with incitement to violent crimes and does not deal

with acts that generally concern themselves with the mainte-

nance of public order. That being so, the decision in Romesh

Thalbar's case(1) given on the constitutionality of section

9(1-A) of the Madras Maintenance of Public Order Act has no

relevancy for deciding the constitutionality of the provi-

sions of section 4(1)(a) of the Indian Press (Emergency

Powers) Act. Towards the concluding portion in Romesh Tha-

par's judgment(1) it was observed as follows :--

"We are therefore of opinion that unless a law restrict-

ing 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 although the restrictions which

it seeks to impose may have been conceived generally in the

interests of public order. It follows that section 9(I-A)

which authorizes imposition of restrictions for the wider

purpose of securing public safety or the maintenance of

public order falls outside the scope of authorized restric-

tions under clause (2), and is therefore void and unconsti-

tutional."

The restrictions imposed by section 4(1)(a) of the

Indian Press (Emergency Powers) Act on freedom of speech and

expression are solely directed against the undermining of

the security of the State or the overthrow of it and are

within the ambit of article 19(2) (1) [1950] S.C.R. 5 94.

660

of the Constitution. The deduction that a person would be

free to incite to murder or other cognizable offence through

the press with impunity drawn from our decision in Romesh

Thapar's case(1) could easily

have been avoided as it was avoided by Shearer J. who in

very emphatic terms said as follows:-

" I have read and re-read the judgments of the Supreme

Court, and I can find nothing in them myself which bear

directly on the point at issue, and leads me to think that,

in their opinion, a restriction of this kind is no longer

permissible."

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Be that as it may, the matter is now concluded by the

language of the amended article 19(2) made by the Constitu-

tion (First Amendment) Act which is retrospective in opera-

tion, and the decision of the High Court on this point

cannot be sustained.

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 was committed. 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 amend-

ment in article 19(2). Article 20 has no application whatev-

er to the present case. Article 19(2) empowers a legislature

to make laws imposing reasonable restrictions on the funda-

mental rights conferred under article 19(1) of the Constitu-

tion. 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 funda-

mental right which could be said to have been contravened by

the amendment.

Though, as I have said above, the High Court is in

error in the finding that the provisions of section ,4(1)(a)

(1) [1950] S.C.R..594,

661

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 section4 (1)(a) of the Indian Press

(Emergency Powers) Act.

The document is written in high-flown Bengali language

and contains a good deal of demagogic claptrap with some

pretence to poetic flourish. It enunciates certain abstract

propositions in somewhat involved language and it cannot be

followed except with considerable effort. The High Court

held that the document offended against the provisions of

section 4(1)(a) inasmuch as certain parts of it contemplate

a bloody and violent revolution and that the central theme

that runs through the whole gamut of the offending pamphlet

is that the author is anxious to bring about a bloody revo-

lution and change 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.

Particular reference was made to the following passages in

the writing which in the opinion of the learned Judges

support that conclusion. The first of these passages is in

these words :--

"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 pro-test is against

parochial national politics."Another passage reads thus :-

`` Death is my secret love; poison is my drink the flames

of fire are my sweet breeze; the wailing of a hundred be-

reaved childless mothers is just a tune in my flute; the

weeping of widows at their widowhood is just a rhythm of my

song."

The next passage referred to is in these terms :--

"I am the cremation ground. I am the bloodthirsty

goddess Kali who lives and moves about in the cremation

ground. Plague or famine is my great joy ....... I am

thirsty, I want blood, I want revolution,.

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662

I want faith in the struggle. Tear, tear the chain of

wrongs; Break thou the proud head of the oppressor."

Reference was also made to a passage in which 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 and in which he claims that he is

the messenger of death, that his revolutionary song signals

the door of each of the listeners 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 that with the blood of

those followers let the revolution grow. It winds up with

an invocation to the readers in these terms :--

"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, oppres-

sion and injustice. We should not tolerate wrongful oppres-

sion. Oh, thou the people with the burning pain of thine

heart burn the heart of the oppressive, high-handed oppres-

sor. Let all wrongs, all high-handedness, all oppressions,

all tyrannies be burnt in the flame."

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 of patch-up work, with no

consistency or cohesion between its different parts. Por-

tions 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 oppression or injus-

tice that is intended to be remedied. The desire is. to

change the face of the earth by ending all oppression,

tyranny and injustice. Their 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

663

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 characters 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. Any non

descript person who promises to change the order of things

by bloody revolution and assumes the role of a new Messiah

is merely the laughing-stock of 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 Shukla v. Government of C.P. & Berar(1), that though

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the pamphlet in question uses extravagant language and there

is in it the usual crude emotional appeal which is the

stock-in-trade of the demagogue as well as a blundering and

ineffective attempt to ape the poets, 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 any-

body to commit acts of violence. Again the language employed

is full of mysticism and

(I) I.L.R. 1964 Nag. 865

664

cannot be easily understood and it creates no impression of

any kind on any person.

In order to determine whether a particular document

falls within the ambit section 4(1), the writing has to be

considered as a whole and in a fair and free and liberal

spirit, not dwelling too much upon isolated passages or upon

a strong word here and there, and an endeavour should be

made to gather the general effect which the whole composi-

tion would have on the mind of the public. Expressions which

are the stock-in-trade of political demagogues and have no

tendency to excite anybody, and exaggerations in language

cannot lead to that result. The learned Government Advocate

placed reliance on the decision of Harries C.J. in Badri

Narain v. Chief Secretary, Bihar Govermnent(2). The learned

Chief Justice therein held that in order to show that cer-

tain 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 emphasising 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 speechless today, when organized,

the labourers will be as powerful as millions and this

portion of the poem ended with these words:

"Why are you helplessly tolerating the exploitation of

your masters."

The remaining lines were as follows:-

"Labourers, raise 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

(2) A.I.R. 1941 Pat.132

665

create a new world order and that will bring happiness to

the whole world."

It is quite clear that here an appeal was made to la-

bourers 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 them 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 commonsense. My answer to this

query in the present case is that the document read at first

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sight is not intelligible unless it is explained to that man

of ordinary commonsense by a learned person and hence it can

by itself create 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 throw it in the waste paper 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.

As I pointed out in my judgment in Harkrishan Singh v.

Emperor(1), 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 propo-

sition that some of the words used in the pamphlet in ques-

tion 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

(I) A,I.R, 1946 Lah, 22.

666

crimes of violence but that is not the effect if the pam-

phlet is read in its entirety.

The result is that I would dismiss the appeal but in

the circumstances would make no order as to costs. The

State Government has succeeded in its contention that sec-

tion 4 (1) (a) of the Act is constitutional and that was the

real ground on which it came to this Court.

PATANJALI SASTRI C.J.--I agree with the judgment just

delivered by my learned brother Mahajan J. and have nothing

to add.

MUKHERJEA J.--I concur in the judgment delivered by my

learned brother Mahajan J. and I would like to say a few

words, regarding the publication itself which led to the

demand of security by the Government under the provision of

the Indian Press (Emergency) Act.

The point that requires consideration is, whether the

words contained in the impugned publication are of the

nature described in section 4 (1) (a) of the Act; or in

other words whether they 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. It is

well settled that to arrive at a decision on this point, the

writing is to be looked at as a whole without laying stress

on isolated passages or particular expressions used here and

there, and that the court should take into consideration

what effect the writing is likely to produce on the minds of

the readers for whom the publication is intended. Account

should also be taken of the place, circumstances and occa-

sion of the publication, as a clear appreciation of the

background in which the words are used is of very great

assistance in enabling the court to view them in their

proper perspective.

The leaflet in question is entitled "Sangram" or

struggle. It is written in high-flown Bengali prose with a

large mixture of poetic expressions borrowed at random from

the writings of some well-known

667

poets of Bengal. The object of the writing as far as could

be gathered from the document is to give a poetic or ideal-

istic picture of what is meant and connotated by

"struggle"or revolution. The aim and end of "struggle ", as

stated in the leaflet, is to wipe outs, "oppression, injus-

tice or wrong" which is "pervading all over the world from

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the past to the future"; and it is only after all wrongs,

injustice and oppression have perished that a new world

could be built up. This seems to be the main or central

theme of the composition, clothed, though it is, under much

incoherent talk and seemingly meaningless utterances. There

is no indication throughout the writing as to what kind of

oppression, injustice or wrong the author had in mind. Far

from referring to grievances of any specific character, the

writer does not even hint at such general causes of discon-

tent as political inequality, economic exploitation or class

warfare which are the subject-matter of agitation in many

parts of the world. The leaflet does not give indication

also of any unpopular measure or act of injustice affecting

the minds of the people in the particular area where it

was published and within which it was intended to be circu-

lated. In one part of the document the following words are

found to occur:

"If mother be true, let no disgrace spread in the name of

the mother. If mother tongue be equal to mother, then the

said language is your most revered goddess. Do not allow

disgrace to spread in her name".

It is not the case of the Government and there is no

statement or affidavit to that effect, that the passages

here have any reference to the language controversy which

agitated and probably is still agitating this particular

district. In another part of the document the expression

"narrow parochial politics" has been used, but here again

the Government has not made any attempt to explain, what

this expression could, in the particular context, mean or

refer to. As no acts of injustice or oppression are actually

mentioned in the document, it is difficult to say who the

"oppressors" are, whose "proud heads" the author asks his

668

readers to break. It is quite clear that the "oppressor"

mentioned here is neither the Government nor the party in

power, nor has it any relation to any particular class of

persons or a sect or community which might be harassing

others and trampling upon their rights. It may be, that to

attract the operation of section 4 (1) (a) of the Indian

Press Act, the incitement to murder or violence need not be

specifically directed against particular individuals or

class of persons; but when the whole talk is about injustice

or oppression in the abstract, which is stated by the author

to be in existence from the beginning of time and when in

hyperbolic language a hope is expressed of establishing a

better and a cleaner world through struggle, sweat and

blood, the words used may not improperly be looked upon as

an effusion of poetic fancy which, having no relation to

actual facts can have very little potency for doing mis-

chief. I will now proceed to examine the contents of the

pamphlet in detail.

The writer begins in an affected poetic vein and de-

scribes, in language, to which it is difficult to attach any

rational meaning, what "struggle" or revolution is. The

"struggle" which is personified in the article introduces

itself in the following manner:

"I am not wealth, nor popular strength, not the people

nor fame;...I am not joy nor a brag, nor the timid look of

the beloved's eyes .... I am not mother's affection, nor

sister's love".

If these words convey any sense, they can only mean that

the struggle or revolution which the writer wants to depict

is something different from what we ordinarily associate

with our social life and happiness; it is a negation of all

natural human feelings and sentiments. The next paragraph

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says in equal enigmatical language what "Sangram" or "strug-

gle" actually is. "I am old antiquated history" thus the

article proceeds;

" I am time eternal, I am the future, the present and

the past, in my heart is written the story of the past, the

problems of the present and the voice of the

669

future". I do not know whether this is a poetic way of

depicting the entire life process which is said to lie

through struggle and guide our evolution in this planet.

Struggle, according to the author, is coeval with time and

eternity.

In the next paragraph the writer passes on to say with

many repetitions of the word "wrong" that "it is wrong which

is pervading all over from the past to the future", and it

is this wrong that is to be righted by the struggle. The

struggle here is likened for reasons best known to the

author to a piece of torn grass in the middle stream of a

turbulent river, and to a grain of dust thrown in the face

of a cyclone. "It is dishonour, Unhappiness, endless pain."

It is again likened successively to the frown of the be-

loved, to famine, storm and evil days. The call is sent to

everybody to come on "where the sky is cracking and the

endless rough and thorny path is shrouded in darkness" and

assist in building up a new world.. Many of the expressions

used here are taken verbatim from the writings of some

well-known Bengalee authors, though they sound nothing but a

rigmarole in the present context.

The next paragraph begins with the word "revolution".

Struggle is revolution and through struggle and revolution

the world is to be built anew. It is then said that "death

is my darling and death is the only truth in this world".

If one has to die, there is no sense in dying of illness.

Let a man choose an honourable death by standing against

oppressors. Quite abruptly the author brings in the name of

Sri Subhas Chandra Bose in the midst of this talk and asks

his readers to listen "far far away across the hills, across

the jungle, across the rivers and rivulets the call of

Subhas Chandra Bose, the greatest revolutionary leader of

the world". The people are asked not to stop until the

objective is attained. Again it is said "I am struggle, I

am revolution ...... I am a Hindu, I am a Mussalman, I am

a Christian, I am a Jew, I am a Keduin, I am severed from

all religions by the fruits of my action in previous

births". Without the least attention to any sequence of

thought, immediately

670

after this, the imaginary oppressor is addressed by the

author as follows:

"Oh you foolish oppressor you want to terrify with your

red eyes, I fear not."

The author, or rather the personified "struggle" which

purports to speak, then repeats the well-known words of poet

Tagore and says that he does not seek salvation through

renunciation; he wants that salvation which lies in joy

amidst innumerable dangers and difficulties. The idea of

finding joy in all that is hated, avoided and dreaded in

this world is elaborated in the passages that follow.

"Death" it is said "is my secret love, poison is my drink,

the flames of fire are my sweet breeze, the cry of childless

mothers a tune in my flute and the weeping of widows a rythm

of my song". In this vein the author goes on conjuring up

all the uncanny and weird things in the world and associat-

ing them with struggle. "I am not joy, I am the remnant of

the dying cries ...... I am the bloodthirsty goddess Kali

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who lives and moves about in the cremation ground. I want

blood ............ Break the proud head of the oppressor.

I bathe in flames ............... Thunder is my kiss of

affection ......... I do not understand myself. I do not

know myself. I do not recognise myself still I want revo-

lution, still I want struggle". The learned Judges of the

High Court laid very great stress on these passages which in

their opinion constitute a direct incitement to bloody

revolution; and that is also the line of argument adopted by

Mr. Mitter who appeared before us on behalf of the State.

It has been argued by Mr. Ghosh appearing for the respondent

that the "struggle" which the author has depicted and which

he aims at is a non-violent struggle and the blood that is

to be shed is the blood of those who are called upon to

resist oppression and injustice. On the other hand, it is

argued on behalf of the State that the passages quoted above

can only mean that it is a bloody and violent revolution

which could carry men to their desired end. In my opinion,

neither of these contentions furnish to us the proper method

of approach to the question which requires

671

decision in the present case. We would have to look at the

article as a whole and focus our attention on what can be

regarded to be its central theme or purpose. As has been

said already, what the writer wants is to draw an ideal

picture of "struggle" or revolution quite unconnected with

any particular place, or any particular political or social

environment. Injustice or oppression exists, according to

the author, from the very dawn of time and so also does

struggle or revolution. It is an integral part of the world

process and is a sort of irrational or blind impulse. This

is expressed by saying "I do not understand myself,I do not

recognise myself, still I want revolution". In painting

death or war, the artist would naturally choose some uncanny

associations. The trappings of revolution, as the author

paints it, are all the fearful and hideous things in this

world. It is linked up with thunder and storm, fire and

devastation, cataclysm, famine, danger, destruction and

death. It is immaterial so far as this ideal picture is

concerned whether the blood that is spoken of is the blood

of the oppressor or of the oppressed, and whether the strug-

gle is violent or pacific. The goddess Kali in the Hindu

mythology is the goddess of destruction and death, but she

is the benign goddess also whose protecting hands ward off

all oppressions, danger and calamity. That is the reason

why revolution or struggle is assimilated to this goddess.

It cannot be denied that in painting this picture of "strug-

gle" or revolution the author has used very strong words;

but they would not be unnatural if it is only an ideal

picture that the author really desired to paint. If howev-

er, it can be shown that under the cloud of these general

enigmatical words something concrete and tangible lies

hidden, that the "oppression" and "oppressor" are not imagi-

nary abstractions but are real things not unknown to the

people to whom the article is addressed and there is in fact

a grievance agitating the popular mind, no matter whether it

is well or ill founded, against which the author desires to

inflame public opinion;then even though he uses veiled or

covert language, there

672

can be no doubt that the article would come within the

purview of section 4 (1) (a) of the Indian Press Act. But

the difficulty is that the Government has not made any

attempt to establish any of these facts. Without knowing the

attendant circumstances and the actual background of the

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publication, it is not possible for us to ascertain the real

intention that lies behind the writing; and absolutely no

materials have been placed before us by the Government which

might enable us to find out what in reality was the sub-

stance behind this camouflage of words, if camouflage it

actually is.

The rest of the article proceeds in the same hyperbol-

ic and enigmatical style There is repetition ad nauseam of

the same stock phrases and expressions. It goes on to say "I

am the messenger of death. I am untouchable, I am vague, I

am queer, 1 am nightmare, I am robber, I am enemy, I am un-

known. 1 am not Falgoon with its sweet smelling flowers; I

am eternal separation, I am restlessness". I am extremely

doubtful whether expressions like these would not, to an

ordinary reader, appear to be anything better than the

ravings of a mad man. I will cull a few more expressions

which occur subsequently and which loftily this impression.

"I see struggle on my darling's face, I see struggle in

the honey of flowers...I am storm, I am the Deepak Ragini.I

am misfortune. I am cry of distress, I am jealousy, I am

evil days."

The concluding portion of the article reads as

follows:

`` Let me speak the last word: If you are true, if you are

gift of God, if you are not a bastard...then come forward

with a fearless heart, struggle against the oppressor's

improper conduct, oppression and injustice. We shall not

tolerate wrongful oppression. Oh, the people, with the pain

of your heart-burn: the heart of the oppressive high-handed

oppressor, let all wrongs, all high-handedness, all oppres-

sions, all tyrannies be burnt in the flame."

673

There was a good deal of discussion before us as to whether

these passages hint at a violent or a non. violent struggle.

It may be capable of either interpretation. but as I have

said already, that by itself would not afford a decisive

solution of the question before us. It is also not much

material to consider whether the author wants that "Jealousy

and malice" which he has referred to

at the end of the article, are to develop and spread or they

are to be transformed into innocuous and sweet smelling

flowers. This is certainly a matter upon which difference of

opinion is possible. After all, we are to see what impres-

sion the article read as a whole would produce upon ordinary

people. An ordinary reader is not expected to seek the

assistance of an interpreter in trying to find out the true

meaning of the words used.

As has been said already, many of the expressions used

here have been taken verbatim from the writings of certain

noted Bengalee authors. They are stock phrases current in

Bengal and amongst the Bengali speaking community elsewhere.

If it strikes the reader that what the author wanted was to

pass himself off as a noted writer by sheer plagiarism, then

whatever else may be said about the article, it certainly

does not come within the purview of section 4 (1) (a) of the

Press Act. Taking the article as it is, it is nothing but a

tissue of high sounding and meaningless words and whether

the author wanted to imitate some of the welt known poets of

Bengal in attempting to give a poetic description of "strug-

gle"or revolution or wanted to give himself the pose of a

liberator of mankind, out to wipe out the last vestiges of

oppression and injustice from the face of the earth, no

rational person would take him seriously and would look

upon this composition as the vapourings of a deranged

brain. If, on the other hand, the whole thing is a clever

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ruse resorted to with the object of inflaming the

popular mind against certain persons or authorities, and

although only general and vague words are used, the words

have their meaning and significance to those

674

who are acquainted with the actual situation, it was incum-

bent upon the Government to clear up these matters and

present before us the background and the context without

which no meaning could be attributed to this species of

empty verbiage. As Government did not discharge the duty

that lay upon them, I am clearly of opinion that no security

order could be passed against the respondent under the

provision of section 4 (1) (a) of the Press Emergency Act.

DAS J.--During the course of the arguments I enter-

tained some doubt as to the innocence of the meaning and

implication of the pamphlet in question, but, in the light

of the judgments of my learned brothers Mahajan J. and

Mukherjea J., which I have had the advantage of perusing

since, I do not feel that I would be justified in dissenting

from the construction they have put upon the language used

in the pamphlet. I accordingly concur in their conclusion.

Bose J.--I agree with my brothers Mahajan and Mukher-

jea.

Appeal dismissed.

Agent for the appellant: R.C. Prasad.

Agent for the respondent: P.K. Chatterjee.