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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.