In Re: Mrinal Kanti Ghose, Keeper vs Unknown-18/08/1932

If the author’s main purpose is not to excite hatred or contempt or disaffection (the supposition is a little difficult), then in aid of some other purpose he has put together a collection of epithets which are highly abusive and upon the question whether the tendency of the passages is to bring into hatred or contempt, or to excite disaffection towards, the Government, it is, in my judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022), quite impossible to give a finding in the negative.

CALCUTTA HIGH COURT

In Re: Mrinal Kanti Ghose, Keeper vs Unknown 

Equivalent citations: AIR 1932 Cal 738, 140 Ind Cas 304

DATE: 18 August 1932

ACT: Section 23, Act 23 of 1931, the Indian Press (Emergency Powers) Act-1931

JUDGMENT

C.C. Ghose, J.

1. These are two applications (1) by Tarit Kanti Biswas– publisher of the newspaper Amrita Bazar Patrika and (2) by Mrinal Kanti Ghose, keeper of the Amrita Bazar Patrika Press, under Section 23, Act 23 of 1931, the Indian Press (Emergency Powers) Act, praying that certain orders of the Governor of Bengal in Council dated 22nd June 1932 calling upon the petitioners to deposit securities to the amount of Rs, 3,000 each may be set aside in the circumstances set out in the petitions. Under the orders of the Governor of Bengal in Council notices under Sub-section (3), Section 3, Indian Press-(Emergency Powers) Act, 1931 dated 22nd June 1932 were served on the petitioners directing them to deposit “with the Chief Presidency Magistrate, Calcutta, securities to the amount of Rupees 3,000 each in money or the equivalent thereof in securities of the Government of IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more on or before 26th July 1932. The securities demanded have been deposited with the Magistrate. According to the Local Government, the petitioners have respectively published and printed in the Amrita Bazar Patrika on 26th May 1932 an article headed “India in travail” by one S. K. George containing, it is said, words of the nature described in Sub-section (1), Section 4 of the said Indian Press (Emergency Powers) Act 1931 as amended by Section 63, Emergency Powers Ordinance 1932 and further amended by Ordinance 7 of 1932 the objectionable passages wherein being set out in the annexure to the order of the Local Government and the question now for our decision is whether the said objectionable passages do or do not contain any “words, signs or visible representations” of the nature described above.

2. Before I deal with the meritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process. of the applications I desire to notice two arguments of a technical nature raised by Mr. N. K. Basu on behalf of the petitioners. It is argued that, although the preamble to the Emergency Powers Ordinance, 1932, contained a recital of an emergency having arisen, there was no such recital in Ordinance No. 7 of 1932 and that in the circumstances the Governor-General had no power to promulgate the last-mentioned Ordinance. In the second place it is argued that inasmuch as the order of the Local Government did not specify which of the clause of Sub-section (1), Section 4 of the said Indian Press (Emergency Powers) Act, 1931 as amended by Section 63, Emergency Powers Ordinance 1932 had been contravened by the petitioners, the order of the Local Government was vague and illegal and that in the circumstances, the Local Government had no power to demand of the petitioners securities in manner referred to above. As regards the first point, it may be stated at once that it was the subject of debate and decision in the Ananda Bazar Patrika case in which judgment was delivered by this Court on 2nd August last. For the reasons given in my judgment in the said case I am of opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. that Mr. Basu’s first point has no substance in it and that it must be negatived. As regards the second point taken by Mr. Basu I am of opinion that having regard to the wide language used in Sub-section (3), Section 3, Press (Emergency Powers) Act, 1931, there has been sufficient compliance on the part of the Local Government and that in law the action taken by the Local Government cannot be questioned or attacked in manner indicated by Mr. Basu. Mr. Basu’s second point therefore must also be negatived.

3. It is apparent that the contention of the Local Government is that the words used in the objectionable passages are hit by the provisions of Section 63, Clause (d), Emergency Powers Ordinance, 1932; in other words, the contention, is that the words used tend directly or indirectly to bring into hatred or contempt the Government established by law in British India or to excite disaffection towards the said Government.

4. For the purpose of determining this question it is, in my opinion, necessary to set out the entire article wherein the objectionable passages occur. The article is set out below; I have numbered in it the passages, held to be objectionable by the Local Government and put them into separate paragraphs:

Dear Fellow-Believers, “The story of our religionReligion ‘The word ‘Religion’ -Re Legion- A group or Collection or a brigade, is a social-cultural construction and Substantially doesn’t exist. Catholic religion is different from Protestant religion. It is not Dharma. is nothing but the record of the appearances of Divinely inspired prophets coming forward with compelling messages for their times, to lead their follow-men to fuller life and a closer walk with GodGod People in most cultures believe in the existence of supernatural beings and other supernatural concepts. God is attributed to both anthropomorphic properties (“listens to prayers”) and non-anthropomorphic properties (“knows everything”). Conceptualizing God is associated with willingness to get the COVID-19 vaccine or Vaccine hesitancy. Pope requested people not to practice “Jesus is my vaccine”. For the Jewish, family (Avestan universal) god became national God:  I am the God of Abraham, and the God of Isaac, and the God of Jacob,”(ex 3:15).  See Ishwar. . But that story is also full of warnings to us, not to fail to discern the signs of the times, to know the day of our visitation for it has been the lot of most of those prophets to be despised and rejected in their own generation, though later ages have built their tombs and enshrined their memory. It is India’s glory that in these latter days God has raised up a prophetProphet Προφητεύω (Prophesy) - He who tells in advance. A prophet may not be a Messenger from God. He may simply predict something may happen in the future. Hebrew prophets claimed to have the capacity to see the future or interpret the present situation for future circumstances. Narada in Indian Puranas was the Messenger from Devatas (Vishnu). Vyasa gave power to Sanjaya to see from a distance and not the future. Whether 'future' exists or not is the investigative subject of Physics. If the future is fixed from the past, why should people move (Karma) for anything? Elohim never created any future for Adam in Genesis (1.1), like unto these ancient men of God, from among her children.

(1) ” For it is our conviction that Mahatma Gandhi has been raised up by God in these days, as Moses of old to lead his people out of the desolation of foreign domination, and to set their feet on the path of self-realisation and world-service. But the representatives of Insolent Might have, as of old, driven from before their faces the people’s representative and God’s.

” But what of the people? Will they too reject and disown him? We are persuaded better of the people of India as a whole (?) For India has never stoned her prophets or rejected those that have been sent to her. But what of our Christian minority?

(2) “India is on “trial.” We are confident that her people will come out vindicated and triumphant out of this travail. But ChristianityChristianity It formed in Alexandria and not in Jerusalem as thought. Whether the theology, organisation, or reading materials, everything formed in Alexandria in or around 20-30 CE and then exported everywhere by traders. in India is also on its trial. We wish we could have been equally confident about that issue too. So far Indian Christians, as a community, have held aloof from the national struggle, and allowed their inaction to be interpreted as acquiescence in reactionary measures and thus estranged themselves from their countrymen whom they seem to serve. But we trust they will not miss this last great opportunity to take their religion to the heart of the new India in the making. For this timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) the struggle will be swift and the issue decisive.

” We Christians ought to be devoutly thankful that that struggle is directed along strictly non-violent lines, enabling us to bear our part in it with a clear conscience.

(3) ” To us, our Christian profession has already committed us to this struggle both as to its objective and its method. For as Christians we are bound to stand out against all injustice and oppression, and we take it, it needs no labouring the point at this time that British rule in India, in spite of all its seeming benefits, has in its totality done more harm than good to the country; and that in the interests both of India and Britain, the present relations between the two countries must be radically altered.

” As to nonviolence, it is our Master’s method; the way of the cross; and it is certainly up to us to be interpreters of its meaning and guardians of its integrity, integrity in the Holy war that has already begun.

(4) ” If we appeal to Indian Christian men and women in all parts of the country, it is because we believe that this movement will lead to a partial realization at least of that great goal before mankind, the Kingdom of God, of which our prophets have seen visions and for which our Lord lived and died. It is our Christain duty, duo both to God and country, to help in the realization of that ideal. May we not be found wanting in this hour of our trial.

” As to methods and programme, Mahatmaji in his last appeal to the community, issued through the Nationalist Christian Party of Bombay, has suggested two items in which Indian Christians can and ought to join. These are khaddar and prohibition. As he puts it, he has felt that the poor Indian Christian community needs khaddar as much as any other community in the land, for its economic salvationSalvation σωτηρίας (σωτηρᾱ), Moksha in Sanskrit, Moksha can not be achieved without performing Dharma, acquiring Artha ( money and meaning in life), enjoying Kama (fulfilling desires according to Dharma). αἴτιος σωτηρίας (Philo) - Delivery from molestation. Σωτηρίας- Safety money. paying the cost to the Father God for worldly safety and delivery from slavery. . So he expresses the hope in his own inimitable language that, ” every Indian Christian house will be adorned with the charka and every Indian Christain body with khaddar spun and woven by the hands of their poor countrymen and country-women.”

” As for prohibition, he could not understand, he says, how a Christian could take intoxicating drink. If we Christians have not been in the forefront of this work it is because we have been culpably indifferent to one of the curses, that is ruining our country.”

” The fullest co-operation with the country in these two items of constructive work seems to us the least the Indian Christian community as a whole can do at this juncture.

(5) ” But if individual Christians feel they ought to do more, they ought to do so in the name of the ChristChrist Lamentations 4:20 > The breath of our nostrils, the Christ (Mašíaḥ) of Yahweh, was captured in their pits, of whom we had said, “Under his shadow, we shall live among the nations.” Greek Septuagint (OT), χριστός derived from χρίω (anointed one). Whether Jesus was Christ? NT declared in affirmative. Jews never accepted Jesus as a chosen leader. His violent death was interpreted as a curse by Yahweh. For Hindus, Christian claims are absurd. Performing Dharma leads to liberation. For Muslims, Jesus never died on the Cross. He who confesses that Jesus is Christ is Christian. Confessing Muhammad is the Last Prophet (Rasul) earned the name of Mohammedan. . we serve and we appeal to all Christian churches and leaders to send them forth with their blessings land to uphold them with their prayers.

5. In para. (1) of the said objectionable passages the words taken exception to on behalf of the Crown are “the desolation of foreign domination” and the “representatives of Insolent Might.” In para. (2) the words taken exception to are ‘ reactionary measures” for this time the struggle will be swift and the issue decisive.

6. In para. (3) the words taken exception to are “injustice and oppression” and “British rule has in its totality done more harm than good.”

7. The learned Advocate-General who appeared for the Crown stated that it was not necessary to take into consideration any of the expressions in the other paragraphs of the objectionable passages, because the expressions already referred to were sufficient for his purpose as showing conclusively that the writer was bent upon dwelling adversely on the foreign origin and character of the Government. It was contended that the writer had thereby brought himself within the rule laid down by Strachey, J., in the Tilak case I.L.R. 22 Bom. 112 at p. 137 and that in the circumstances the petitioners could not be heard to say that the words used by them did not come within the purview of Section 4, Indian Press (Emergency Powers) Act, as amended by 63 (d) of the Emergency Powers Ordinance 1932. On the other hand, Mr. N. K. Basu, on behalf of the petitioners contended that, although it was perfectly true that the intention of the writer was not a circumstance which could be taken by us into consideration in the present proceedings, yet for the purpose of finding out the meaning of the words used in the said objectionable passages, regard must be had to the entirety of the article and to the context in which they appear.

8. The onus of proof in a case like the present is on the petitioners and they have to prove a negative but while that is so, there is no reason to hold that a canon of construction, is different from what is ordinarily applicable to matters which form the subject of prosecutions under Section 124-A, I. P. C., must be applied in respect of the article set out above. I would therefore hold that the article in the present case must as a matter of law, be read as a whole in a fair, free and liberal spirit and should not be viewed, with an eye of narrow and fastidious criticism. As I read the article, it is, to my mind, a call to Indian Christians to see that the present political relations between Great Britain and India are radically altered and that such alteration should take place swiftly or without delay. The struggle to achieve this object is described figuratively as if it were a Holy WarWar Whenever Christians wage a war, it is a Just war (City of God). Jesus asked his followers to purchase swords (Luke 22: 35-36). Those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility (Catechism 2265). Without Jihad there is no Islam. In Mahabharata, Krishna tried to stop the War imposed by Kurus. Lord Rama killed Ravan in the war to restore his wife. Deva and Asura battles are not available in Vedas. and the writer says that the methods to be employed by those who take part in this struggle must proceed on the lines of nonviolence which, according to the writer, is the way of the cross. The writer himself is a Christian and he believes that the Cross is an eternal principle, an immortal and inexhaustible source of strength and power. In other words, the writer believes that there is in the Cross already present and available a limitless store of spiritual power and of divine goodwill through which everything may be achieved. It is apparent that it is in this frame of mind that the writer composed the article set out above. It is, in my opinion, entirely wrong to say that the article is a crusade against the British Government under the guise of a religious sermon.

9. Bearing the above in mind and being not unmindful that an attempt or incitement to secure a change in the form of Government is not an offence : see In re, Beni Bhusan Roy, I. L. B. 34 Gal. 998,. and also of the fact that the object of the recent legislation is to strike at those who advocate violent or revolutionary action or those who obstruct the paths of peacePeace εἰρήνη and ordered progress, I now proceed to examine the question whether on a proper and dispassionate reading of the all ending passages it can be said that the writer has used words which bring the Government into hatred or contempt or excite disaffection against it. In the first all the said objectionable paragraphs the writer states that:

Mahatma Gandhi has been raised up by God as Moses of old to lead his people out of the desolation of foreign domination and to set their feet on the path of self-realisation and world service.

10. Any student of the Bible need not be reminded that the comparison of Mahatma Gandhi to Moses was not to be and could not be taken literally and that the words used could not possibly mean that Mr. Gandhi is engaged in the deliveranceSalvation σωτηρίας (σωτηρᾱ), Moksha in Sanskrit, Moksha can not be achieved without performing Dharma, acquiring Artha ( money and meaning in life), enjoying Kama (fulfilling desires according to Dharma). αἴτιος σωτηρίας (Philo) - Delivery from molestation. Σωτηρίας- Safety money. paying the cost to the Father God for worldly safety and delivery from slavery.  of India’s people in the same manner as Moses secured the deliverance of the Israelites out of the clutches of Pharaoh. It is, if one may say so, a mere historical panegyric upon Mr. Gandhi or a rhetorical flourish rather than an attack upon the Government. It is true that the writer speaks of leading the people out of the desolation of foreign domination, but what he really means is that an attempt is being made so that the people may be rid of the mortification that may be felt of being under alien rule and that with an early transformation or alteration of the present political relations between India and Britain the people of India may be called to a larger destiny, i. e., to quote the words of the present Prime Minister of EnglandEngland In England, the Parliament was originally an advisory body summoned to consult with the monarch, and the courts exercised delegated royal powers, as “lions beneath the throne”.:

that the British Raj is there not for perpetual domination and that the people of India should not forever be silent and negative subordinates to foreign rule: sea House of Commons Command paper No. 3778 at p. 498.

11. I do not read this passage as suggesting that the connexion between India and Britain should be brought to an end now or at any time by means of what may be called direct or violent action or otherwise, nor do I think that the contention can rightfully be maintained, if one has the whole article in mind, that the writer is suggesting that alien rule has made India desolate in a physical or material sense. The expression “foreign domination” by itself cannot possibly come under Section 63 (d) of the Emergency Powers Ordinance, 1932. The only question is whether the presence of the word “desolation” in the context in which it appears is sufficient to show that the writer is hit by Section 63 (d) of the Ordinance. If an innocent meaning can be legitimately given to the expression, I see no compelling necessity to hold that the writer can be roped in the wide words of the Ordinance. And so long as criticism or expression of opinion of any sort is allowed it is not right that isolated expressions should be subjected to scrutiny under the microscope as it were and a sinister meaning ferreted out and drastic action taken under the Emergency Powers Ordinance, 1932. The word “desolation” means, among others, “deprivation of comfort” “dreary sorrow” or “grief” : see the Oxford Dictionary Vol. 3, p. 250; see also Lord Morley’s Voltaire where he speaks of “the hopeless inner desolation which is the unbroken lot of myriads.” The way in which I read it is, in my opinion, consistent with the remainder of the article and I am not prepared to hold that by the use of the words referred to above the writer has brought himself within the mischief of Section 63 (d). I now come to the expression the representatives of Insolent Might have, as old, driven from before their faces the people’s representative and God’s.

12. Now, the expression “insolent Might” strikes one as peculiar; but a cursory acquaintance with Biblical literature is sufficient to show that the expression is merely a paraphrase of “pride of power” or “loftiness” or “arrogancy” or haughtiness” referred to in several passages in the Bible. I should read the expression “the representatives of Insolent Might” as meaning people who personify or em-body in them “pride of power,” or, to put it shortly, who are exceedingly proud. The expression “driven from before their faces” is a Biblical Hebraism or Hebrew idiom (see the Oxford Dictionary Vol. 4, p. 5, Col. 1, para. 2), and the sentence taken as a whole, in my opinion, means nothing more than this : that the mighty people, i. e., people who personify or embody in themselves “pride of power” have driven away from themselves or refused to admit in audience or grant an audience to, the people’s representative who, according to the writer, is also God’s representative. I am not concerned to find out whether the action taken by the authorities to which the writer takes exception was right and proper or otherwise or whether the criticism by the writer was just, but all that I am concerned with at the moment is to see whether the writer has brought himself within the wide words of the provisions of the law referred to above. In my opinion, the paragraph in question read in the way which I have indicated is capable of yielding a rational meaning and the writer is not hit by Section 63-D of the said Ordinance.

13. As regards the expressions in para. 2 commented on by the learned Advocate-General, here again the key to the same and indeed to the whole article itself is to be found in the expression the present relations between the two countries must be “radically altered.” The word “struggle” cannot possibly mean that the struggle will be one of a violent character; the writer indicates sufficiently that it is or will be a moralMorality Mental frame. It can be high morality or low morality, savage morality or civilised morality or Christian morality, or Nazi morality. Decent Behaviour is acceptable norms of the nations. Christian morality starts with the belief that all men are sinners and that repentance is the cause of divine mercy. Putting Crucified Christ in between is the destruction of Christian morality and logic. Now morality shifted to the personal choice of Jesus. What Jesus did is 'good'. The same would be the case of Ram, Krishna, Muhammad, Buddha, Lenin, etc. Pure Human Consciousness degraded to pure followership. There exists no proof the animals are devoid of morality. struggle; and beyond this no other suggestion is possible. The writer’s suggestion is that the relations between the two countries must be radically altered–by following whose methods ?–not the methods of violent or revolutionary people but the method of Christ, the way of the cross, i. e., self-suffering, and self-sacrifice. The writer speaks of acquiescence in “reactionary measures.” I should be sorry to think that this expression can attract the provisions of Section 63, Clause (d) of the Ordinance and I will not therefore pause to dwell on it. As regards the other expressions referred to in para, 3 of the objectionable paragraphs the idea apparently is that the Christian is the redresser of all human wrongs and therefore it is suggested that he should see that the present deadlock should be ended and also see to the amelioration of the present political relations between the two countries, the idea being that such early amelioration would conduce to the happiness and contentment of the people of both Great Britain and India, the destinies of which have been woven together by Providence. I am prepared to admit that some of the words used are somewhat crude; but that is neither here nor there. The totality of the words used in the article, I repeat, must be taken into consideration and the main question is whether taking all the expressions together as used in the said article the writer has brought into hatred or contempt the Government established by law in British India or has excited disaffection towards it. I would answer the question in the negative.

14. It is said that the writer has contravened the rule laid down by Strachey, J.; I would point out that what was considered seditious under Section 124-A, I. P. C., in 1897 may not necessarily be held to be so in 1932; one cannot shut one’s eyes to change in political conceptions due to the march of events and to the declared] objectives of the Government of the day. After the most anxious consideration, I am of opinion that if one reads the whole article dispassionately written as it has been obviously by a Christian with a certain amount of knowledge of the Bible and of Bible history, the orders made by the Local Government should be set aside. I would therefore allow the applications, set aside the orders of the Local Government and direct refunds of the securities already deposited.

Rankin, C.J.

15. These two petitions are by the publisher of the newspaper Amrita Bazar Patrika and the keeper of the Amrita Bazar Patrika Press under Section 23, Indian Press (Emergency Powers) Act 23 of 1931, in respect of an order made on 22nd June by the Local Government requiring them to deposit security to the amount of Rs. 3,000 each under Sub-section 3, Section 7 and Sub-section 3, Section 3 of the said Act. This order was made in respect of an article which appeared in the Amrita Bazar Patrika on 26th May 1932 entitled “India is in travail.” On the merits of the matter the question before us is whether that article contained words:

which tend, directly or indirectly to bring into hatred or contempt the Government established by law in British India or to excite disaffection towards the said Government.

16. This definition is contained in Section 4, Act (23 of 1931) read with Section 63, Emergency Powers Ordinance 1932 (2 of 1932) and Section 2, Amending Ordinance 1932 (7 of 1932). S. (3,Ordinance 2, which was promulgated on 4th January 1932, purported to insert certain additional clauses into Section 4 of the Act. In so doing, the draftsman by mistake omitted to insert any governing words to introduce the additional clauses. Ordinance 7, promulgated on 6th February 1932, by Section 2 thereof, supplied the omission, the words “which tend directly or indirectly being introduced to govern Clauses (c) to (i) added by Section 63 of the former Ordinance. Mr. N. K. Basu for the applicants put forward two preliminary contentions. The first was that Ordinance 7 does not commence, as other Ordinances have done, by a recital to the effect that an emergency has arisen. The recital is as follows:

Whereas it is necessary to amend the Emergency Powers Ordinance 1932, and the Prevention of Molestation and Boycotting Ordinance, 1932 : Now therefore in exercise of the power conferred by Section 72, Government of India Act, the Governor-General is pleased to make and promulgate the following Ordinance.

17. Accordingly Mr. Basu contends that the ordinance is either ultra vires upon the ground that there was no emergency, or else that this Court cannot enforce it in the absence of evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 to the effect that there was an emergency. In my judgment there is no foundation for this argument. It was pointed out by the Judicial Committee in the case of Bhagat Singh v. Emperor that:

a state of emergency is something that does not permit of any exact definition : it connotes a state of matters calling for drastic action, which is to be judged as such by someone. It is more than obvious that someone must be the Governor-General, and he alone.

18. Accordingly the Judicial Committee rejected the suggestion that in a Court of law the Crown can be called upon to prove affirmatively that a state of emergency existed. In the present case the Governor-General, on 4th January 1932, was of opinion and declared that an emergency had arisen which made it necessary to confer upon Government, inter alia, special powers to deal with cases where words had been published of the character defined by Section 63, Ordinance 2 of 1932. Certain words having been left out per incuriam, on 6th February 1932, the Governor-General declared that it was necessary to amend the previous Ordinance and that he was doing so in exercise of the power conferred by Section 72, Government of India Act. As the validity of the Ordinance rests neither upon proof of an emergency nor upon the recital of an emergency but upon the judgment of the Governor-General that immediate action of this character was necessary, there is, in my judgment, no basis for the contention that the Ordinance was not valid and effective. In no event could the validity of the Ordinance be determined by evidence adduced before the Court as to whether a state of emergency did or did not exist. The second contention of Mr. Basu was to the effect that the Government’s order was bad because it did not state the particular clause in Sub-section 1, Section 4, Press (Emergency Powers) Act, 1931 as amended, against which the article in question was found to have offended. The Act itself however carefully provides what the notice is required to contain. The provision is not framed in the same manner as in previous Press Acts. The requirement is:

stating or describing the words, signs, or visible representations which in its opinion are of the nature described above.

19. In the present case the Local Government have carried out the directions of the Act and it is not for this Court to impose any further requirements. This contention therefore fails. Upon the question of merits it is to be noticed that the article objected to is stated to be a circular letter issued by Mr. S. K. George to all Christians in India. Mr. S. K. George is described in the article as ” Lecturer (resigned) Bishop’s College, Calcutta ” though the headlines to the article improve upon this by describing him as an emeritus professor ” and his circular letter as a ” sermon.” The general argument of the article is that Mahatma Gandhi has been raised by God and is his divinely inspired prophet; that Christianity in India is on its trial because though Indians, in general, are sure to follow him, Indian Christians are not equally certain to do so, whereas their religion requites them to do so. In the course of this argument, it becomes plain that it is a religious argument about political matters; that the prophet is engaged in a national struggle and that the national struggle is a struggle against British rule in India. This struggle is described as one which ” will be swift and the issue decisive,” and it is further described as Holy War. It is further stated that to join in it “it is our Christian duty, due both to God and country.” The method of the struggle is described as nonviolence which is also said to be the way of the Cross. Christians are invited to give the fullest co-operation ” with the country ” in what are described as two items of constructive work, namely, khaddar and prohibition.

But if individual Christians feel they ought to do more, they ought to do so in the name of the Christ we serve.

20. A loading passage in this somewhat exalted argument is as follows:

For it is our conviction that Mahatma Gandhi has been raised up by God in these days, as Moses of old, to lead his people out of the desolation of foreign domination, and to set their feet on the path of self-realization and world service. But the representatives of Insolent Might have, as of old, driven before their faces the people’s representative and God’s.

21. There are other passages in which British rule in India is equated with reactionary measures and ” injustice and oppression.” The question before us is whether the article contains matter which tends directly or indirectly to bring into hatred or contempt the Government established by law in British India or to excite disaffection towards the said Government. The first argument on behalf of the applicants is that the criticizm or denunciation or polemic in the article is not directed against the Government established by law in British India. It was suggested that it was directed against the English people as a whole or the present Secretary of State as an individual. An attempt was made to give a special meaning to the phrase ” Government established by law in British India ” by a reference to the definitions in Section 3, Clauses 22 and 29, General Clauses Act (10 of 1897), of the phrases “Government of India” and Local Government.” These, however, are not the phrases to be interpreted. Section 17, I. P. C., contains this definition of the word Government” namely:

The person or persons authorized by law to administer the executive government in any part of British India.

22. In Queen-Empress v. Bal Gangadhar Tilak [1899] 22 Bom. 112 at p. 135, Strachey, J., said:

Lastly, the authority or institution against which it is an offence to excite or attempt to excite feelings of disaffection is the Government established by law in British India. What is the meaning of that expression? It means in my opinion British Rule and its representatives as such, the existing political system as distinguished from any particular set of administrators.

23. It appears to me to be abundantly clear that the polemic of the article is directed against the Government established by law in British India. Indeed on the face of the article British Rule in India is clearly enough the “foreign domination” from which the desolation proceeds; its representatives are “the representatives of Insolent Might” the persons responsible for the “reactionary measures” and for the “injustice and oppression,” It remains, therefore, to inquire whether the passages in respect of which the Local Government made its order tend directly or indirectly to bring the Government into hatred or contempt or to excite disaffection towards it. It appears to me to be reasonably plain that they do and that they do so quite directly. Mr. Basu very properly invited us to consider whether the more denunciatory expressions might not be regarded as harmless or at least as rhetorical expressions which it was not fair to take at the foot of the letter. Some of them moreover are conventional expressions or stock phrases largely employed in sermons or religious addresses. The parallel, for example, between Mahatma Gandhi and Moses, a prophet who led the Israelites out of the land of bondage, namely, Egypt, is no doubt a biblical way of praising Mahatma Gandhi. Even although we are not dealing with the question of intention under Section 124, I. P. C., but with the question of tendency under the Indian Press (Emergency Powers) Act 1931, I am not unwilling to make some allowance for pulpit rhetoric. These considerations however do not obscure the fact that it is part of. the substance of the circular that the praise of Mahatma Gandhi is based upon his opposition to British Rule in India, and that in order to heighten his character as a divinely inspired prophet, the author of the circular is led into conventional abuse of Government, the epithets employed being those which he thought most likely to appeal to Christians as being forceful denunciation. This denunciation is entirely general so far as I can see. It does not seem to be an objection to any particular measures or criticism of any particular administrative acts. The ground of denunciation is that British Rule in India is foreign domination. The insolence, reactionary measures, injustice and oppression are introduced, so far as I can see, as other phases in the same thing and not as criticism of any measures in particular. If the author’s main purpose is not to excite hatred or contempt or disaffection (the supposition is a little difficult), then in aid of some other purpose he has put together a collection of epithets which are highly abusive and upon the question whether the tendency of the passages is to bring into hatred or contempt, or to excite disaffection towards, the Government, it is, in my judgment, quite impossible to give a finding in the negative. These applications must accordingly be dismissed. I would make no order as to costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..

Mallik, J.

24. I have had the advantage of reading the two judgments which have just been pronounced. I agree in the view that the technical points that were raised on behalf of the petitioners have no substance in them. On merits, I would agree with the learned Chief Justice in the view that he has taken of the matter. Apart from technicalities the accusations that were made against Government were (i) that desolation had been caused by foreign domination, (ii) that they were the representatives of Insolent Might, (iii) that they had adopted reactionary measures and (iv) that they had done injustice and oppression.

25. The question is whether these charges tend to excite hatred or disaffection towards Government. Taking the expressions used in their plain and ordinary meaning I have no doubt in my mind that they do. As regards the sense in which an ordinary reader of the article would understand the expressions something might be said in favour of the petitioners if on reading the article as a whole (as one must do when trying to find out the real import of the words and expressions used) one could take it as a call on the Indian Christians to cooperate in the work of the moral and religious uplift only of the people of India. But the article is a mixture of a religious sermon and political harangue. It mentions no doubt “World Service” and “the Kingdom of God.” But it mentions also Khaddar as one of the methods for attaining the object. It is true the writer advocates nonviolent methods for attaining the object and the final goal. But the adoption of nonviolent methods for redressing a wrong would not necessarily mean that no feeling of hatred or disaffection can be entertained towards the doer of that wrong. I would therefore dismiss the applications, making no order as to costs.

C.C. Ghose, J.

Rankin, C.J.

Mallik, J.

18 August, 1932