Arun Ranjan Ghose v. The State of West Bengal
The High Court of Calcutta
(1957) ILR 2 Cal 396
Media Involved: Non-Fiction Book
Decided on: 11.01.1955
Chakravartti, C.J.
1. This is an application under Section 99B of the Code of Criminal Procedure against an order of the State Government, dated May 14, 1954, and published on May 17 following, whereby they declared every copy of a publication in Bengali, entitled "Shaktishali Samaj, Part III" and by one Swami Satyanandajee Saraswati, forfeited to Government. The Petitioners are two persons, one of whom is the secretary of a society, called Shaktibad Mahamandal who claims an interest in the publication and circulation of the book and the other is one Sudhi Bhusan Das, who claims to be interested in its sale.
2. We did not consider it necessary to hear the learned advocate for the Petitioners on the merits of the order, because it appeared to us that the order was, on the lace of it utterly bad. We, accordingly, invited the learned Junior Standing Counsel to satisfy us that the order was a valid and effective order, He has failed to satisfy us that it is so.
3. The order was made under Section 99A of the Code of Criminal Procedure. As the ground on which we are going to hold the order to be a bad order is that it does not conform to the terms of that section, it will be convenient to read the section itself instead of paraphrasing its contents. The material portion of Section 99A reads thus:
(1) Where-
(a) any newspaper, or book as defined in the Press and Registration of Books Act, 1867, or
(b) any document,
wherever printed, appears to the State Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under Section 124A or Section 153A or Section 295A of the Indian Penal Code, the State Government may, by notification in the Official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government.
I need not refer to the rest of the section.
4. It will appear that the section falls into three clear parts. It first lays down a condition precedent to Government's taking action under the section. The condition is that Government must form one or more of the opinions regarding the effect of the publication as are specified in the section itself. Having laid down the condition precedent, the section states that where the condition has been satisfied, that is to say, where the Government has come to think that the publication is of one or other of the characters mentioned in the section, they may declare every copy of the publication to be forfeited. This part of the section is, what I may call, an enabling provision, but the section does not stop there. While saying that the Government may take action when it comes to form a certain kind of opinion and saying further that the action taken may be to declare every copy of the publication forfeited, the section also says in what form the order of forfeiture shall be made. It enjoins that the grounds of the opinion must be stated in the order itself. That part of the section is mandatory.
5. It is useful to consider here what is meant by grounds of opinion. The formation of an opinion by Government is undoubtedly the ground for the action taken by them, but the grounds for the opinion are obviously different. The opinion, after it has been formed, furnishes a ground to Government for taking the action contemplated, but the grounds on which the opinion itself is formed are and must be other grounds. Those grounds must necessarily be the import or the effect of the tendency of matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose.
6. It is not difficult to see why Section 99A should have required that the grounds of the opinion formed by Government must be stated in the order. Section 99B, which is the next section and under which the present application has been made, authorises any person having any interest of the book or paper forfeited to make an application to the High Court for having the order set aside. The ground on which he can make the application is that the book or paper concerned did not contain any seditious or other matter of such a nature as is referred to in Section 99A. It is clear that since the Legislature was giving a right to persons interested in the book or paper forfeited by Government to apply to this Court for relief against the forfeiture and since it specified the grounds upon which the relief could be claimed, it considered it just and proper to lay down that the order of forfeiture must be such as would enable the person, questioning it before this Court, to make but the ground specified in Section 99A. Such a person can succeed under the section only if he can prove that the book or paper forfeited did not contain matter of such a nature as is referred to in Sub-section (1) of Section 99A. Unless he knows whether the whole of the book or paper was considered by Government as bearing an objectionable character of one or other of the kinds specified in Section 99A or whether Government consider certain particular passages objectionable, it is quite impossible for him to make out that the book or paper or portions of it, considered by Government to have a certain import or effect or tendency, do not, in fact, have such effect or import or tendency and that, therefore, the order made was not justified. It will be noticed that Section 99A does not merely give a description of the matters which are within the ambit of the section and which would justify Government in making an order of forfeiture, but it also says that the matter must be such that its publication is punishable under either Section 124A or Section 153A or Section 295A of the Indian Penal Code. A person questioning an order of forfeiture may, therefore, require to establish that the book or publication concerned did not attract either of the sections of the Penal Code mentioned in Section 99A and that in taking a view to the contrary, Government had been wrong. It is quite impossible to make out a ground of that character, unless one knows what passage or passages were regarded by Government as offending against the sections of the Penal Code mentioned in Section 99A. Nor is it easy to see how Government themselves can come to an opinion that a particular publication or any portion of it offends against certain sections of the Indian Penal Code, unless they have present to their mind particular passages which in their opinion so offend. It appears to me that by requiring Government to state the grounds of their opinion in the order, the Legislature has required them to place on record proof that they had really applied their minds, to the contents of the publication and were not making the order merely from a sweeping and uncritical feeling of dislike.
7. I may now proceed to refer to the actual order passed in the present case. It reads as follows:
In exercise of the power conferred by Section 99A of the Code of Criminal Procedure, 1898 (Act v. of 1898), the Governor is pleased to declare to be forfeited to the Government every copy of the book in Bengali entitled, "A Saktisali-Samaj" (Powerful Society) Part III, by Swami Satyanandaji Saraswati, printed and published by Shri Hari Charan Chakravarty from Soktibad Press, 117, Dharmatala Street, Calcutta, on the ground that the said book contains matter which is deliberately and maliciously intended to outrage the religious feelings of a class of citizens of India by insulting the religion and the religious beliefs of that class and which promotes feelings of hatred between different classes of the citizens of India, the publication of which matter is punishable under Sections 295A and 153A of the Indian Penal Code (Act XIV of 1860).
8. Since the order makes no reference to Section 124A or seditious matter punishable under that section we may put sedition on one side. The order is concerned with matter considered punishable under the two remaining sections, that is, Section 295A and Section 153A. All that the order states is that the book contains matter which is deliberately and maliciously intended to outrage the religious feelings of a class of citizens of India by insulting the religion and religious beliefs of that class and which promotes feelings of hatred between different classes of the citizens of India. It is quite evident that the whole passage, to which I have just referred, was bodily lifted from Section 99A and is, but a reproduction of the second and the third alternatives specified in that section. The passage undoubtedly states that the order is being made on the two grounds specified, but leaves it to a mere implication to suggest that the book had appeared to Government to contain matters which entitled them to act on those two grounds. The order does not even state specifically that it appeared to Government that the book contained matter which bore the character mentioned, but I shall overlook that defect as a mere drafting error. Two other defects, however, appear to me to be of a fundamental character, going to the root of the validity of the order.
9. In the first place, while the opinion upon which the Government acted and made the order of forfeiture is stated, the grounds on which that opinion had been formed are nowhere mentioned in the order. As I stated a few moments ago, the opinion formed by Government is the ground for the action they take, but what Section 99A contemplates and requires to be stated in the order are the grounds on which that opinion itself had been formed. Of those grounds there is no indication whatever in the order. The learned Junior Standing Counsel, who appeared on behalf of the State, offered to refer us to passages which, according to him, would justify the opinion stated to have been formed by Government. As I pointed out to him, passages which he might cull from the different parts of the book and submit to us as justifying the Government's order would be passages, supporting the opinion formed by him and not necessarily passages which Government had, in fact, in mind, if they had any specific passages in mind at all, when forming the opinion claimed in the order. It is necessary to emphasise that what the section requires to be stated are the grounds on which Government themselves in fact acted. It is quite possible that the book or paper forfeited does contain passages which are of the nature mentioned in Section 99A, but in forming their opinion, Government had not proceeded on those passages at all, but on other passages which were of a harmless character. If Government proceeded on passages which did not, in fact, bear the character or could be said to have the import that would justify the order of forfeiture, it cannot do for counsel for Government to rely on other passages by reference to which the order could be justified. Whether the order is a good or a bad order, depends upon whether Government's opinion was rightly formed, and whether or not that opinion was rightly formed depends upon an examination and evaluation of the passages on which they themselves had acted. The opinion of Counsel for the State, based on certain passages in the publication concerned chosen by him, can be no substitute for the opinion of Government which may quite conceivably have been based on other passages. The Act enjoins Government to give, and entitles the Court to know, the grounds on which Government actually formed their opinion and that opinion will be well or ill-grounded according as the passages on which it was actually based do or do not justify it. If the passages on which Government had proceeded do not justify the opinion formed by them, the person challenging the order under Section 99B would be entitled to have it set aside, although there might be other passages of an offending character which had escaped Government's notice or at least on which Government had not proceeded in fact. In my opinion, the absence of the mention of any grounds of the opinion set out in the order of forfeiture is fatal to the validity of the order.
10. That the defect is fundamental will appear from another consideration to which I referred a few moments ago in passing. The matters on which Government are entitled to act under Section 99A are matters, the publication of which is punishable under one or another of three sections of the Indian Penal Code. The person challenging the order of forfeiture would require to establish that the book or paper concerned did not contain any matter coming under the mischief of any one of the sections which might have been set out in the order of forfeiture. He cannot possibly do so, unless the passages are set out in the order, the existence of which would be the ground of the Government's opinion and it is difficult to see, as I have already stated, how the Government themselves can come to form the opinion, unless they have specific passages in mind.
11. The second defect which appears to me to vitiate the order is that even the opinion of Government, upon which they purport to have made the order of forfeiture, has not been properly stated. It is said, in the first instance, that the book contains matter which is intended to outrage the religious feelings of "a "class of the citizens of India." The question at once arises, which class? Unless the class is specified, it is impossible to see whether the opinion of Government that the book contains matter which is intended to outrage the feelings of a class of citizens is justified. Government may think that a particular passage is intended to outrage the religious beliefs of Hindus, whereas there may, in fact, be nothing in the passage itself directed against Hindus, although there may be something in it directed against people of another religious belief. Looking at the matter from the point of view of the person who might make an application under Section 99B, it becomes quite impossible for him to make out the negative, if the order of forfeiture merely states that the book is intended to outrage the feeling of a "class of citizens" and does not specify the class. Not knowing what class Government had in mind he would, I imagine, be required to prove, by taking the various classes of citizens of India one by one, that the book did not contain anything which could outrage the religious feelings of any of them. An opinion expressed in that form is not, in my view, expressed in true conformity with the requirements of Section 99A. Even worse is the form in which the next and the second opinion of Government has been stated. The order says that the book contains matter which "promotes feelings of hatred between different classes of "the citizens of India". Once again the question arises, between which classes? I do not consider it impossible that Government may in a particular case come to be of opinion that there are matters in the book or the paper forfeited which will promote feelings of hatred between all the classes of the citizens of India, but if such be their opinion, they ought in fairness and also in order that the order may be valid to say so. If I may refer again to the position of the person seeking to have the order set aside under Section 99B, he would be consigned to an impossible position, if he were to disestablish an opinion expressed in such a form. He would have to take each of the different classes of citizens of India in its turn and then establish that the book did not contain any matter which promoted feelings of hatred between that class and any of the other classes. He would have to take next another class and repeat the operation in the same manner. To put it in a concrete form, he would have to take first, say the Hindus, and then establish that there was nothing in the book or paper forfeited by Government which promoted feelings of hatred between them and Muslims or them and Christians or them and Parsees or them and Jains and so on. Taking next another class, say Christians, he would have to establish that the book contained no matter which would promote feelings of hatred between Christians and Muslims or Budhists or Parsees or Jains or any of the other classes of the citizens of which the teeming millions of India are composed. He would also not know what kinds of classes were contemplated by the order, whether classes according to religion or classes according to occupation or classes according to wealth or classes according to any other criterion. But the question does not really depend upon the difficulty of the hypothetical Petitioner under Section 99B. It seems to me to be of the essence of Section 99A that the opinion formed by Government must be stated in an exact and concrete form, in order that it may be a proper and sufficient opinion for the purposes of the section. The language "different classes of "citizens of India" or "outrage the feelings of any such class" is to be found in Section 99A itself and it is a language of a general character, because the section is intended to cover all classes against or as respects whom a publication might offend. If, however, any Government have to make an order under the authority of Section 99A, they cannot merely quote the general language of the section, but must specify what class or classes they have in mind and whose religious feelings are intended to be outraged or between whom feelings of enmity or hatred are likely or intended to be promoted. It is clear that a Government, making an order under Section 99A or the draftsman preparing the text of an order for their use, must take some trouble and must not only proceed on precise notions as to the class or classes which in their opinion are affected, but must also specify such classes in the order. The draftsman not having expressed himself in the present case in the precise form required and there being nothing to show that the Government themselves were any the more precise in their notions and it being also impossible to see what exactly the Government's opinion was, the order, in my opinion, is plainly vitiated by the second defect as well.
12. I desire only to add that Section 99A vests Government with drastic powers in the interest, undoubtedly, of peace, order and good administration, so that if they find that some publication has or is likely to have the undesirable effect mentioned in the section, they may intervene and remove it from circulation. There can be no doubt that when those powers are properly exercised, they are exercised, for the good of the society. At the same time, it ought not to be overlooked that the exercise of the power must necessarily constitute an invasion of some rights of the persons against whom action is taken and, therefore. Government cannot be too careful to see that their opinion is properly formed and that it is properly expressed in accordance with the terms of the statute.
13. The order does not seem to be a singular one in respect of the defects I have mentioned, but it is in the tradition of such orders made and published by the State Government in the past. A similar order came to be considered by a Special Bench of this Court in the case of In Re : Mahomed Ali I.L.R. (1913) CaI. 466, where Jenkins, C.J., held that had it not been for the provisions of Section 22 of the Press Act, he would consider it his duty to hold that there had been no legal forfeiture. Section 22 of the Press Act provided that every declaration purporting to be made under the Act would, as against all persons, be conclusive evidence that the forfeiture therein referred to had taken place. The relevant sections of the Press Act have now been transferred to the Code of Criminal Procedure, but no provision of the nature of Section 22 has been incorporated. It will thus appear that if an order appears to the Bench constituted under Section 99B to be not a valid or effective order at all by reason of non-compliance with the provisions of Section 99A, there is now nothing in the nature of Section 22 of the Press Act to prevent the Bench from saying so.
14. We cannot, however, overlook that the jurisdiction of the Court under Sections 99B and 99D of the Code of Criminal Procedure is of a clearly defined character and therefore, no order can be made except on the grounds mentioned in those sections. Section 99B entitles the applicant under the section to have an order set aside
On the ground that the issue of the newspaper, or the book or other document, in respect of which the order was made, did not contain any seditious or other matter of such a nature as is referred to in Sub-section (1) of Section 99A.
15. Section 99D provides that the Special Bench shall set aside the order of forfeiture.
If it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained seditious or other matter of such a nature as is referred to in Sub-section (1) of Section 99A.
16. The ground mentioned in these two sections, which is the same, does not include or cover want of compliance with the requirements of Section 99A. It may, therefore, appear at first sight that the only grounds on which a person can challenge an order of forfeiture under Section 99B and the Court can give him relief under Section 99D are grounds limited to the merits of the order and that if he desires to challenge the order on any other ground, he must have recourse to other forms of proceedings. So as to read the two sections, however, would he to put too narrow a construction on their terms and to miss their application to facts such as those of the present case. Although the sections authorise an attack on or interfere with the order only on the ground that the nature of the publication does not justify it, it is quite possible to make an order under Section 99D in the present case without overstepping the strict limits of the section. Indeed, the section requires an order to be made. Under the section, the Court must set aside the order of forfeiture, if it is not satisfied that the publication, in respect of which it has been made, contains matter of the nature referred to in Section 99A. It is true that the section refers generally to "matter of such a nature as is referred to in "Sub-section (1) of Section 99A" and not to matters specified in the order, but it cannot certainly be intended that irrespective of what the Government order may itself have alleged, the Court will go up and down the whole publication on its own account in order to find out if there is anything in it anywhere which brings it within the mischief of Section 99A. It cannot be that if the order of forfeiture alleges promotion of class-hatred, the Court must uphold the order even if it finds no class-hatred but finds sedition or that even if an outrage on the feelings of only Muslims is alleged, the order must be upheld if the publication is found to contain matter which cannot possibly offend any Muslim, but may offend Christians. The proper construction of the section, in my view, is that the court will be entitled to set aside the order of forfeiture if it finds that the matter or matters upon which the order is based is not a matter or are not matters which bear the character ascribed to it or them. It appears to me that where the order of forfeiture does not state the religious feelings of what class of the citizens of India are outraged or what are the classes of citizens between whom feelings of hatred are likely to be promoted by the publication, it is not possible for the Court to be satisfied that the book does contain matter of the nature referred to in Section 99A, that is, of such nature within the ambit of the section as has been alleged in the order. That precisely is the position in the present case. We do not know what is the class whose religious feelings Government consider to have been intended to be outraged nor do we know who are the different classes between whom the book is considered by Government to promote feelings of hatred; and not knowing the class in one case and the classes in the other, we cannot be satisfied that the book does contain matter of the nature mentioned in Section 99A and punishable under Section 153A and Section 295A of the Penal Code which Government consider it to contain. That being so, we are entitled to set aside the order even under the strict language of Section 99D and, in my view, we should direct accordingly.
17. I might refer to one small matter in passing. In the course of the argument, the learned Junior Standing Counsel enquired whether it would be necessary for Government, in drawing up an order in a proper form, to set out in extenso the passages upon which their opinion was based. All that is necessary is to give definite information to the person whose publication is forfeited or persons interested in challenging the order of forfeiture as to the matters among the contents of the publication which Government consider offensive. That purpose can be served not only by setting out the passages in extenso but also in various other ways, for example, by indicating the page or pages where the prejudicial matter is thought to be contained.
18. For the reasons I have already given, we are not satisfied that the book contains matter of the nature ascribed to it by Government and in view of the vagueness and obscurity of the order, it is not possible for us to be so satisfied. We accordingly set aside the order of forfeiture.
19. We desire to make it clear that we are not expressing any opinion on the merits of the book and nothing said in this judgment will prevent Government from making a fresh and proper order of forfeiture, if they feel called upon to do so.
20. The Petitioners will have their costs of the application. Certified for counsel.
Lahiri, J.
21. I agree.
P.B. Mukharji, J.
22. I agree.