C.C. Ghose, J.
1. This is an application by the petitioners named above under Section 23, Act 23 of 1931 [the Indian Press (Emergency Powers) Act 1931], praying that certain orders of the Governor of Bengal in Council dated 26th May 1932 calling upon the petitioners to deposit securities to the amount of Rs. 1000 each may be set aside in the circumstances set out in the petition. The facts, shortly stated, are as follows: The petitioner Satyendra Nath Mazumdar is the publisher of a daily newspaper printed in Bengal and published in Calcutta called the 'Ananda Bazar Patrika' and the petitioner Jagadish Chandra Mukherjee is the keeper of the Ananda Press, situate at promises No. 18, Mirzapur Street, in Calcutta, where the said newspaper is printed.
2. Under the orders of the Governor of Bengal in Council, notices under Sub-section 3, Section 7 and Sub-section 3, Section 3 of the said Act, bearing date 20th May 1932 were served upon the two petitioners respectively on 30th May 1933 requiring them to deposit with the Chief Presidency Magistrate, Calcutta, securities to the amount of Rs. 1,000 each in money or the equivalent thereof in securities of the Government of India on or before 8th June 1932. The securities demanded have been deposited with the Magistrate. The complaint of the Local' Government is that the petitioners have published and printed in the said newspaper on 17th April 1932 an article containing words of the nature described in Sub-section (1), Section 4, Press (Emergency Powers) Act, 1931, as amended by Section 63, Emergency Powers Ordinance, 1932, the objectionable passages wherein being set out in the annexure to the notices served on the petitioners and the question now for our decision is whether the said objectionable passages did or did not contain any words, signs or visible representations of the nature referred to as above.
3. The learned Advocate-General who appeared for the Crown stated at the outset that his contention was that the said objectionable passages came within the mischief of Section 63, Sub-section (d), Emergency Powers Ordinance of 1932, and that it was not necessary to refer to any of the other subsections. In order to fully understand the precise position it is necessary to set out Section 4, Sub-section (1), Press (Emergency Powers) Act 1931, and the amendment thereof by Section 63, Emergency Powers Ordinance, 1932. (After quoting in extenso Section 4 (1) and Section 63, Emergency Powers Ordinance, 1932, as amended by Ordinance 7 of 1932 his Lordship proceeded). On behalf of the petitioners it has been argued by Mr. H.D. Bose that the article in question was published as a legitimate comment and bona fide expression of opinion on a current topic of discussion of public importance with a view to removing certain public grievances in the usual, ordinary and normal course of the discharge of the duties of the conductors of a newspaper without any intention of giving offence to any person or persons, class or classes and of creating disaffection. Mr. Bose further raised certain technical questions which, in my opinion, for the reasons set out below, were without substance. The jurisdiction of this Court under Section 23, Press (Emergency Powers) Act, is of an extremely limited character and we are not concerned with the question of the intention of the writer of the objectionable passages; all that we are concerned with at the moment is to find out whether the words used tended directly or indirectly to bring into hatred or contempt the Government or to excite disaffection towards the Government. If they do, then the petitioners are hit by Section 63, Sub-section (5), Emergency Powers Ordinance; if they do not, it is competent to this Court under Section 25 of the Press Act, to sot aside the orders of the Local Government,
4. Mr. H. D. Bose on behalf of the first petitioner argued that although the proamble to the Emergency Powers Ordinance of 1932 contained a recital of an emergency, there was no recital of any emergency in Ordinance No. 7 of 1932 and that, in the circumstances, the Governor-General had no power to amend the Cornier ordinance by the latter one. He also argued that under Section 72, Government of India Act, the Governor-General could no doubt promulgate ordinances but he could not amend an ordinance from time to time or create a now offence which was not contemplated by the original statute i. e., the Press (Emergency Powers) Act of 1931. In other words, his contention is that the ordinance can only operate by reference to the statute the objects of which are limited (see in this connexion Section 4, Sub-section (1) Press (Emergency Powers) Act of 1931 and that Section 63,Ordinance No. 11 of 1932 as promulgated taken by itself, was meaningless because the operative part thereof was non-existent.
5. In my opinion, there is no substance in Mr. Bose's contentions. If, as a matter of fact, there are omissions in an ordinance, it must be open to the Governor-General to repair the omissions by means of an amending ordinance. It is not necessary to recite the original emergency if the later ordinance is merely an amending ordinance. The Governor-General has the power to promulgate ordinances from time to time according as he thinks fit, and I am not concerned at the moment with the question as to whether or not Section 63, Emergency Powers Ordinance of 1932 with its numerous clauses, could be properly dovetailed into Section 4, Sub-section (1) Press (Emergency Powers) Act of 1931. Once it is conceded that the Governor-General is the sole repository of the power of promulgating ordinances it must be conceded that ho is the only judge as to whether or not the [provisions of an ordinance can or cannot be made operative by reference to an original statute or otherwise. Mr. B. C. Chatterjee, who appeared for the second petitioner, raised a further question as to whether the expression 'Government' must necessarily mean Government established by law in British India. The point of his argument was that one may criticize the executive Government harshly, adversely and even unreasonably; but that is not the same thing as. bringing into hatred or contempt the Government established by law or exciting disaffection towards it. In my opinion, so far as this country is concerned, no distinction in substance can be drawn between Government established by law in British India and the executive Government. In England the state of things is no doubt different and no proper analogy can be drawn therefrom in support of Mr. Chatterjee's argument.
6. The objectionable passages did not, in the original Bengali form part of one whole paragraph; they are, in fact, as set out in the annexure, a series of sentences taken out of their setting and rolled up in such a way as to suggest that they .. are all connected with each other. Be that as it may, in order to fully understand the contentions on the merits, I desire to set out in paralled columns the annexure to the order of the Local Government and the translation of the entire article by a sworn translator of this Court a translation to which no exception was taken by the learned Advocate-General.
The Annexure to the Order of the Local Government is as follows:
England has a vast empire. She can bring her commodities into India for sale in virtue of the authority of an ordinance. Her people can go to Canada, New Zealand and Australia in order to secure work in case they do not find work in England whereas in India the Government remain satisfied by taxing the people in order to meet their heavy expenses. They do not do anything, except by saying a few words of sympathy, to see whether the Indian products are demanded in a greater quantity in the world's markets. India is regarded as a partner of the British Empire but she has no place in the Empire. The Indians have no right to enter Canada and Australia in search of employment but the Canadians and the Australians have unrestricted privileges and rights to carry on trade in India. The Indians have made South Africa habitable, and attempts are now being made to drive away the Indians from that place. The all powerful England hesitated to save the rights of the Indians from the clutches of the hungry and turbulent colonists. To save the Indians from their present distress it is necessary to establish factories and revive their trade and industries, & free them from the unfair competition of the foreigners; but the Indian Government have not done anything for the convenience of the Indians, and there is no evidence to show that the Government are at all anxious to remedy the distress of the people. Attempts are made to save some industries and this was done simply because the factories were working under foreign capital and foreign directorship. It is said that the lots of India and England are closely united together, but in reality the Indian Government do not do anything that is done by the Home Government to solve the economic problem. Indian revenue is spent mainly on the up-keep of the 'luxuries' of the railway and Military Departments and civil service.
The authorized translation of the entire article is as follows:
England and India:
Economic Condition.
1. The unemployment problem of England, the miseries of Manchester and Lancashire and the abandonment of the gold standard--these things have affected to some extent the financial reputation of enormously rich England. She has also been hit by the worldwide trade depression which has been going on since the last year.
2. Since the fall of the Labour Government and the rise to power of the Conservative Party the newly framed 'National Government' have been trying to re-establish England's financial reputation by all means possible. In spite of her being the foremost of the nations of the world in power driven industry, England has to day given up the principles of free trade, and by having recourse to the policy of discriminating protected tariffs has improved the condition of the Exchequer; and the Mill Industry of England is now going on in full swing. News of this type also is being circulated in our country from time to time by the beat of drum.
3. The Statesman in its Saturday issue draws special attention of all to the fact that there has come a flood time in all the departments of British trade, The textile industry of England has also been resuscitated by demands from India and China. Hardware, coal, wool, chemicals all businesses have flourished, 60 thousand tons of iron pipes will be dispatched to Iraq. Orders have been received from Spain for the manufacture of airships. American motor-cars are no longer being sold in the British market so on and so forth. England has become poor, on account of the Government being involved in war debts, for her going off the gold standard, and closing down of a great number of cotton mills of Lancashire and Manchester. Nobody will think so. We cannot even imagine how great is the prosperity of England compared with that of India. How enterprising and zealous are the Government (there) to tackle this single problem of unemployment. These are like dreams to us.
4. England is possessed of a vast Empire. Even excluding the white colonies, England has absolute control over India and many African countries. Moreover she has the advantage of selling her merchandise by stopping the boycott movement in India by ordinances (and) the unemployed, if they fail to secure work in England may easily go to Canada, Australia or New Zealand and get work there.
5. But what is the position of India in this economic tangle The anxieties of the Government of India almost cease when their huge cost is met by the levy of fresh taxes. Regarding a greater demand for Indian cotton, jute or wheat etc., in world market and their better prices they are practically doing nothing except indulging in words of sympathy. India is asked to feel pride in the fact of her being a partner in the British Empire, but she has no place in any portion of that British Empire. The sons of India have not even the right of entry into Canada or Australia to earn a livelihood but any fortune-hunter from Canada or Australia have unrestricted right of trade or business in India. It was the Indians who were responsible for the prosperity of South Africa by cutting jungles there but what endeavours have been made during the last 25 years to drive them away from there and what humiliations the Indians have had to face in-South and Ea3t Africa 1 The mighty England is reluctant even to safeguard the just rights of India's sons from the clutches of the hungry and cruel white settlers,
6. Indian cultivators have been ruined by the fall in the price of Indian agricultural products, Indian trade and industry are in a very nascent condition. When the Indians, in spite of their being partners of the British Empire, have no place in the three worlds it is superfluous to say how necessary are their trade and commerce and their own mill industry for mere subsistence of such, Indians and how urgent it is to protect the same from an unjust foreign competition. But what steps have the Indian Government taken up till now to their (Indian's) advantage and according to their desire No evidence is there that Indian Government are anxious or uneasy over the question of unemployment of hundreds of thou-ands of the people.
7. Measures have of course been taken to safeguard certain industries by a protected tariff but the chief reason is that mo3t of these industries are carried on in India with foreign capital and are under foreign management.
8. Great British politicians tell us that the destiny of India is linked up with that of England and this, we are asked to believe has been done by Providence for the welfare of both the nations. But in fact we find all the anxieties and activities of the British Government are directed towards safeguarding of British interests and for providing the sons of Britain with food, raiment and dwelling. Why do not the Government of India have recourse to the same thing for the satisfaction of similar wants of India's sons Why should the course that is adopted for the benefit of England prove injurious to India ?
9. The happiness and prosperity of England may be on the increase; we are neither envious nor sorry for this. But what is the good of circulating that news by the beat of drum into the ears of a hungry and helpless people If you could adopt means for the prosperity of India just as England does, then that would mean something, but this jubilation of the Statesman sounds like a joke to our ears. .
10. Even without entering into the problems of economy which are extremely complex, it may be said, possibly India's miseries would not be great if the Government of India were fully alive to India's interest and spent some money for constructive works by curtailing their extravagance.
11. Indian exchequer runs empty to supply the articles of nawabi (luxury) of the authorities of these throe departments--the Railway, the Military and the Civil Service. The result is that the amount of liability is swelled and the income drops. To increase the income, the Government of India levied about 55 crores of rupees of new taxes in two years and are getting on thus maintaining their traditional policy. There can be no improvement of India's economic condition unless this state of things change. The Indian Government as well as the Provincial Governments ought to render earnest help for the establishment of mills and factories and for trade and industry of the country at once. This is the best solution of the problem of unemployment. If the dark days of England that is fortunate in all respects have actually passed away and a happy era has set in, then the 30 crores of half-starved Indians will not be pleased or gratified at the glory of wealth. Being disappointed again and again India is trying to stand on her own legs by having recourse to Swadeshi (love of country or helping indigenous industry). Bad motive is attributed to this and it is deprecated in every way. The same economic principle has turned out to be the very reverse of it through the ill-luck of a subject race. Of all the hypocrisies that imperisalism is responsible for this is perhaps the last expression.
7. The provisions of the Press Act and of the Emergency Powers Ordinance may or may not have the effect of restricting the just liberties of the press or of checking fair criticism of the administration. I am not concerned with the policy of the present law nor am I concerned with any discussion of the question as to whether the measures recently taken by the Government are really aimed at writings in the press which incite openly to violent or revolutionary action or which by consistent laudation of the forces of disorder and indiscipline encourage a spirit of lawlessness throughout the country and obstruct the paths of peace and orderly progress.
8. Bearing in mind the limited character of our jurisdiction, I now proceed to examine the offending passages. The article in question must be road as a whole in order to find out whether the offending passages are or are not of the nature described in Section 4, Sub-section 1 as amended by Section 63, Sub-clause (d) of the Emergency Powers Ordinance. As I read the original Bengali and the authorised translation thereof, it strikes me that the writer is bewailing the present economic condition of the country and that his comments are inspired by a comparison between the zeal and enthusiasm of the authorities in England and the alleged inaction of the authorities in India as regards the solution of questions relating to unemployment and to obtaining better facilities for purposes of trade and commerce. The writer goes on to accuse the authorities in India of suffering from a sort of inertia as regards taking measures which would revive trade and commerce. So far, I do not find that there is any warrant for the action taken by the Government; but there are other passages in the offending article which 1 must consider and the main question for decision is whether there is any accusation that the authorities are of set purpose indifferent to the well-being of the people or that the inaction of the Indian Government is prompted by racial discrimination. I am free to admit that if it were open to me to take into consideration the intention of the writer and to come to a conclusion one way or the other, as would have been the case if a prosecution had been launched under Section 124-A, I. P. C., I should have had great difficulty in finding the writer guilty. But the position here is different. The intention of the writer is a thing which we are not entitled to take into account; we are concerned with the effect of the words used by the writer. The onus of proof in the present proceedings is on the petitioners, and I am constrained to hold that that there are passages in the offending extract which are hit by Section 63, Sub-section (d)of the said Ordinance.
9. The passage that can easily be brought up against the petitioners is contained in para. 7 of the authorized translation of the article. It is suggested therein that protection has been given to certain industries because they are carried on with foreign capital and are under foreign management. True, the word 'bedeshi' in the original Bengali does not necessarily connote 'British' and it may be read as meaning non-indigenous. I am aware that in construing this passage, one cannot overlook the main idea running through the entire article; but even after making all allowances, I am reluctantly obliged to come to the conclusion, in the light of what has been said by Strachey, J., in the first Tilak case, that the words used are such as may be considered to impute unworthy or dishonest motives to the Government and therefore calculated to bring into hatred or contempt the Government or excite disaffection towards the Government. The provisions of the Ordinance are exceedingly stringent; but I cannot engage in any discussion of their drastic character. Such discussion would be irrelevant and useless, and especially so as the explanation to Section 124-A, I. P. C., is not reproduced in Section 63 of the Emergency Powers Ordinance of 1932. I must therefore most reluctantly hold that the petitioners are without any redress and that their petition must be dismissed.
Costello, J.
10. I have had the advantage of discussing this matter with my learned brother and I am entirely of the same opinion.
Remfry, J.
11. I agree.