The State of Bihar vs Shailabala Devi

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: 273 of 1951

Decision Date: 26 May 1952

Coram: Mehr Chand Mahajan, M. Patanjali Sastri, B.K. Mukherjea, Vivian Bose

In the matter titled The State of Bihar versus Shailabala Devi, the Supreme Court of India rendered its judgment on the sixteenth day of May in the year nineteen fifty-two. The opinion was authored by Justice Mehr Chand Mahajan, who sat on a bench together with Justices M. Patanjali Sastri, B.K. Mukherjea and Vivian Bose. The petitioner identified itself as the State of Bihar and the respondent was Shailabala Devi. The decision was recorded on the twenty-sixth day of May, nineteen fifty-two, and the bench composition was reiterated as Justice Mehr Chand Mahajan, Justice M. Patanjali Sastri, Justice B.K. Mukherjea and Justice Vivian Bose. The case is reported in the law reports as 1952 AIR 329 and 1952 SCR 654, and it has been cited subsequently in D 1960 SC 633 (9) RF, 1967 SC 1643 (165) RF, 1973 SC 1091 (2) RF and 1973 SC 1461 (1705). The statutory provision at issue was section 4(1)(a) of the Indian Press (Emergency Powers) Act, twenty-third of 1931, and the constitutional provisions examined were Articles 19(1) and 19(2) of the Constitution of India, concerning the scope of permissible restrictions on freedom of speech and expression. The headnote of the judgment held that section 4(1)(a) of the Indian Press (Emergency Powers) Act was not unconstitutional because the restrictions it imposed were solely intended to prevent the undermining of the security of the State or its overthrow, and therefore fell within the ambit of Article 19(2). It observed that the cases of Romesh Thapar and Brij Bhushan did not establish a broad rule that such restrictions lie outside Article 19(2), as those cases dealt generally with public order considerations. The headnote further noted that the amendment made to Article 19(2) by the Constitution (First Amendment) Act, being retrospective, clarified the position. In determining whether a particular document is covered by section 4(1), the Court advised that the entire writing must be examined in a fair, free and liberal spirit, without focusing excessively on isolated passages or occasional strong words, and that the overall effect on public mind should be assessed. It stated that expressions commonly used by political demagogues, lacking a tendency to incite, and exaggerations in language, cannot by themselves produce the prohibited result. While such rhetoric might, in rare circumstances, inflame passions—such as when addressed to an already excited mob—the burden of proving such circumstances rested on the Government. The judgment commenced with the heading “JUDGMENT: APPELLATE JURISDICTION: Case No. 273 of 1951,” noting that the appeal was filed under Articles 132(1) and 134(1)(c) of the Constitution, challenging the order dated thirteenth October, nineteen fifty, issued by the High Court of Judicature at Patna, composed of Justices Shearer, Ramaswami and Sarjoo Prosad. Counsel for the appellant was identified, as were the counsel for the respondent, and the Court’s delivery of the judgment was recorded as being on the twenty-sixth day of May, nineteen fifty-two, with Justice Mahajan beginning the opinion by stating that the appeal had been preferred.

In this appeal, the State of Bihar challenged a judgment of a Special Bench of the High Court of Judicature at Patna that had allowed the respondent’s application made under section 23 of the Indian Press (Emergency Powers) Act, XXIII of 1931. The petition was argued by counsel for both parties because it was filed under article 926 of the Constitution. The respondent was, at all relevant times, the keeper of the Bharati Press at Purulia, and a pamphlet bearing the heading “Sangram” had been printed at that press and was alleged to have been circulated in the town of Purulia in the district of Manbhum. The Government of Bihar held that the pamphlet contained objectionable material described in section 4(1) of the Indian Press (Emergency Powers) Act and, accordingly, required the press to furnish a security of Rs 2,000 under section 3(3) of the Act to be paid by 19 September 1949. On 26 September 1949 the respondent filed an application before the High Court under section 23 seeking to set aside that order. The majority of the judges on the Bench allowed the application, while Justice Shearer expressed the view that the application should be dismissed. Several objections to the validity of the order issued by the Bihar Government were raised, but the record does not enumerate all of them. The two principal points seriously pressed before the High Court were that the leaflet did not contain any words, signs or visible representation of the kind described in section 4(1) of the Act, and that the provisions of section 4(1) were inconsistent with article 19(1) of the Constitution and therefore void under article 13. The High Court concluded that the pamphlet fell within the mischief that the Act sought to curb. Justice Sarjoo Prosad, joined by Justice Ramaswami, interpreting the decisions of this Court in Romesh Thapar v State of Madras and Brij Bhushan v State of Delhi, reluctantly found that section 4(1)(a) of the Act was repugnant to the Constitution and thus void. Justice Shearer, however, held that the pamphlet constituted a seditious libel and that none of the two Supreme Court decisions cited compelled the court to declare the provisions of section 4(1)(a) void. In the opinion expressed, Justice Shearer was regarded as correct because the cited decisions do not bear directly or indirectly on the issue presently before the Court, and both Justice Sarjoo Prosad and Justice Ramaswami were considered to be in error in holding that those decisions 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, Justice Sarjoo Prosad observed as follows…

In this portion of the judgment, the judge recorded his remarks by stating, “I am compelled to observe that from the above discussions 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 offends 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, therefore, 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 provides an exception to the fundamental right vouchsafed under article 19 (1)(a) of the Constitution Act.” The author of these observations, speaking with great respect, nonetheless displayed a complete lack of understanding of the precise scope of the two Supreme Court decisions previously referenced. The judgment then turned to the specific provision of the Act that gave rise to the present notice, namely section 3(3) of the Indian Press (Emergency Powers) Act, which provides that whenever the Provincial Government is of the opinion that a printing press is being used for the purpose of printing or publishing any newspaper, book, or other document containing any words, signs, or visible representation described in section 4(1), the Government may, by written notice to the keeper of the press, order the keeper to deposit a security with the Magistrate. Clause (a) of section 4(1) defines the prohibited material as words, signs, or visible representations that incite or encourage, or tend to incite or encourage, the commission of any offence of murder or any cognizable offence involving violence. It is clear that speeches or expressions by an individual that incite or encourage violent crimes such as murder inevitably undermine the security of the State and therefore fall within the ambit of a law permissible under article 19(2) of the Constitution. The judgment further observed that the Supreme Court decisions in Romesh Thapar’s case and in Brij Bhushan’s case have been repeatedly misapplied and misunderstood, leading to an erroneous view of the scope of permissible restrictions under article 19(2).

It has been argued that the decisions of this Court have been interpreted to set out a broad rule that any restriction of the type imposed by section 4 (1) (a) of the Indian Press (Emergency Powers) Act, or a restriction of a similar nature, lies outside the ambit of article 19 (2) of the Constitution because such restriction is generally conceived in the interest of public order. The same line of reasoning appears to have been adopted by Justice Sarjoo Prosad, who also fell into this error. In the matter of Romesh Thapar, the core issue was whether the law challenged – namely the Madras Maintenance of Public Order Act, XXIII of 1949 – when it, by virtue of section 9 (1-A), empowered the Provincial Government “for the purpose of securing public safety and the maintenance 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 of any document or class of documents,” was a statute that dealt with a matter that undermined the security of the State or tended to overthrow it. The Court observed that irrespective of whatever purpose the impugned Act might have been intended to serve, and irrespective of the intentions of its framers, the absence of specific limiting language in the statute meant that its operation could not be confined solely to the aggravated forms of prejudicial activity that are calculated to endanger the security of the State. Moreover, there was no assurance that officials exercising the powers under the Act would be able to distinguish between persons whose conduct was prejudicial to the security of the State and those whose conduct was not.

Section 4 (1) (a) of the Indian Press (Emergency Powers) Act, by contrast, is expressly limited to aggravated forms of prejudicial activity. It specifically targets incitement to violent crimes and does not cover conduct that merely relates to the general maintenance of public order. Consequently, the decision rendered in Romesh Thapar’s case concerning the constitutionality of section 9 (1-A) of the Madras Maintenance of Public Order Act does not have any bearing on the question of whether the provisions of section 4 (1) (a) of the Indian Press (Emergency Powers) Act are constitutionally valid. At the close of the judgment in Romesh Thapar, the Court stated: “We are therefore of opinion that unless a law restricting 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 restrictions under clause (2), and is therefore void and unconstitutional.” The restrictions imposed by section 4 (1) (a) of the Indian Press (Emergency Powers) Act on freedom of speech and expression are therefore directed solely against the undermining of the security of the State.

In this case the Court noted that the restrictions imposed by section 4(1)(a) of the Indian Press (Emergency Powers) Act were aimed exclusively at undermining the security of the State or overthrowing it and therefore fell within the ambit of article 19(2) of the Constitution. The Court observed that it would be erroneous to conclude from the decision in Romesh Thapar’s case that a person could incite murder or other cognizable offence through the press with impunity. The Court pointed out that Justice Shearer, in very emphatic terms, had rejected that inference after reading and re-reading Supreme Court judgments, stating that he could find nothing therein that justified such a restriction. The Court further held that the matter was finally decided by the amendment of article 19(2) introduced by the Constitution (First Amendment) Act, which operates retrospectively, and consequently the High Court’s decision on that point could not be sustained. Counsel for the respondent, Basant Chander Ghosh, contended that the retrospective amendment of article 19(2) was repugnant to article 20 because it declared a certain act an offence that was not an offence at the time it was committed. The Court found that contention untenable. It observed that the respondent was alleged to have violated section 4(1)(a) of the Indian Press (Emergency Powers) Act, a law in force in 1949 when the offending pamphlet was published, and that she had not been convicted of any offence nor could she be subjected to a new conviction on the basis of the amendment to article 19(2). Accordingly, article 20 was held to have no application to the present case. The Court explained that article 19(2) merely empowers the legislature to make laws imposing reasonable restrictions on the fundamental rights guaranteed by article 19(1); it does not retrospectively create new offences. Moreover, in 1949 the respondent possessed no fundamental right that could be said to have been infringed by the amendment. While agreeing that the High Court was in error in finding section 4(1)(a) of the Indian Press (Emergency Powers) Act repugnant to the Constitution, the Court also maintained that the High Court erred in holding that the pamphlet fell within the mischief of section 4(1)(a). The Court described the pamphlet as written in a high-flown Bengali style, containing a great deal of demagogic claptrap with a pretended poetic flourish, enunciating abstract propositions in somewhat involved language that could be followed only with considerable effort. The High Court had held that the document offended against the provisions of section 4(1)(a) because certain parts contemplated a bloody and violent revolution and that the central

In this case, the Court observed that the dominant theme running through the entire pamphlet was the author’s expressed desire to bring about a bloody revolution and to completely overthrow the existing order by annihilating both the individuals and the policies of those whom the author considered to be on the opposite side. The learned Judges of the High Court had pointed to several specific passages which, in their opinion, substantiated this conclusion. The first passage was quoted as follows: “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 protest is against parochial national politics.” A second passage was reproduced in these words: “Death is my secret love; poison is my drink the flames of fire are my sweet breeze; the wailing of a hundred bereaved childless mothers is just a tune in my flute; the weeping of widows at their widowhood is just a rhythm of my song.” The Court also reproduced a third excerpt that read: “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, I want faith in the struggle. Tear, tear the chain of wrongs; Break thou the proud head of the oppressor.” In addition, the Court cited a passage in which the writer claimed that his cries should be heard far and wide, across hills, jungles, rivers and rivulets, calling on listeners to join him in destroying the oppressor, describing himself as a messenger of death and urging those with life, health or courage to “dash to pieces those who commit oppression on the mother” and to let the revolution grow with the blood of his followers. The pamphlet concluded with an appeal to the readers that said: “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 oppressor’s improper conduct, oppression and injustice. We should not tolerate wrongful oppression. Oh, thou the people with the burning pain of thine heart burn the heart of the oppressive, high-handed oppressor. Let all wrongs, all high-handedness, all oppressions, all tyrannies be burnt in the flame.” The Court expressed the view that the High Court had taken this writing far too seriously and that it did not merit such consideration. It described the pamphlet as a patch-work composition lacking consistency or cohesion among its parts, noting that portions of the text were essentially meaningless. The Court therefore concluded that the alleged revolutionary fervour contained in the pamphlet did not amount to a genuine incitement to violent overthrow of the government.

The Court observed that the pamphlet was largely nonsensical and, in other sections, spoke of revolution only in abstract terms. It did not address any particular individual or any known specific cause, and it failed to mention any concrete form of oppression or injustice that it purported to remedy. The stated aim was merely to alter the face of the earth by ending all oppression, tyranny and injustice. No evidence was found linking the pamphlet to any agitation or movement that existed in the locality at the time of its composition. After reading the material repeatedly, the Court concurred with Mr Ghosh’s view that the pamphlet contained only empty slogans, offering no substantive meaning beyond occasional figurative expression or randomly borrowed poetic flourishes. In the present circumstances of the country, such writings do not stimulate nor have the propensity to stimulate any segment of readers likely to encounter a pamphlet of this nature; the readers would necessarily be educated individuals. These writings leave their audience indifferent, prompting laughter and derision, because the public has become overly familiar with such material, which has consequently lost any impact. A person lacking distinction who promises to overturn the order of things through a bloody revolution and assumes the role of a new Messiah becomes a subject of ridicule, creating an adverse impression rather than inciting enthusiasm among readers. Although rhetoric of this sort could, in rare circumstances, inflame passions—such as if directed at an excited mob—the burden of establishing such exceptional circumstances rested with the State Government. In the absence of any proof, the Court presumed that the pamphlet would be read by educated persons in the quiet of their homes or in similarly calm settings. Accordingly, the Court held, invoking the authority of Bose in Bhagwati Charan Shukla v. Government of C.P. & Berar, that while the pamphlet employs extravagant language and displays the usual crude emotional appeal typical of a demagogue, alongside a clumsy and ineffective attempt to imitate poets, that is all it contains and nothing more. The era when such writings could ordinarily provoke individuals to commit violent crimes or murder has long passed. Moreover, the language is saturated with mysticism, is difficult to comprehend, and fails to create any impression on any person. To determine whether a document falls within the ambit of section 4(1), the entire writing must be evaluated in a fair, free and liberal spirit, without over-reliance on isolated passages or occasional strong words, and the overall effect of the composition on the public mind must be considered.

In assessing the document, the Court emphasized that the evaluation must consider the overall spirit of the writing, avoiding an excessive focus on isolated passages or a single striking word, and that the analysis should aim to discern the general effect that the entire composition would have on public mind. The Court observed that expressions commonly used by political demagogues, which do not possess any tendency to excite anyone, and exaggerated language, cannot by themselves lead to the result sought under the provision. The learned Government Advocate relied on the decision of Harries C.J. in Badri Narain v. Chief Secretary, Bihar Government. In that decision, the learned Chief Justice held that to show that certain words fall within section 4(1)(a), it was not necessary to prove that the words incite or encourage the commission of a specific offence; it sufficed that the words tend to incite or encourage the commission of cognizable offences of violence in general. The Court described the facts of that case: a poem titled “Labourers, the mainstay of the world” began by asserting that labourers were the foundation of the present world and then portrayed their unfortunate condition. In a later portion the author declared that although labourers were silent at present, when organized they would become as powerful as millions, concluding that part with the question, “Why are you helplessly tolerating the exploitation of your masters?” The subsequent lines urged the labourers to raise the cry of revolution, foretold that the heavens would tremble, the universe would shake, and that the flames of revolution would burst forth from land and water, calling on the exploited to engage in a “fearful dance of destruction” and asserting that only total destruction would create a new world order and bring happiness to the whole world. The Court found that this poem clearly appealed to labourers, inciting and encouraging them to commit acts of violence, and that the language was not merely empty slogans but had a consistent purpose of exciting labourers into action. The Court then noted that any observation made about that writing could not be applied to the present case. The learned Chief Justice, in the concluding part of his judgment, had stressed that a commonsense interpretation must be given to the complained-against document, asking what impression the words would give to a man of ordinary commonsense. The Court answered that, at first sight, the present document was not intelligible unless explained by a learned person to a man of ordinary commonsense, and therefore it could create no impression of any kind. When explained, such a person would merely laugh at it and discard it as waste paper without taking it seriously.

The Court would not accept that an individual of this description could establish a new world order by calling for a bloody revolution. In earlier reasoning articulated in the judgment of Harkrishan Singh v. Emperor(1), the Court observed that the language appearing in the document under consideration fails to create any impression on the mind of a reasonable reader. Although that earlier case concerned clause (d) of section 4(1), the underlying principle was held to be equally applicable to the interpretation of writings alleged to fall within the ambit of section 4(1)(a). The Court expressly stated that it was not laying down a universal proposition that the particular words employed in the pamphlet, when placed in a different textual context, could never fall within the mischief of section 4(1)(a). It was recognised that certain isolated passages of the pamphlet might, if read separately, possess a tendency to excite individuals to commit crimes of violence, as noted in A,I.R, 1946 Lah, 22, but such a tendency would not be produced when the pamphlet is examined in its entirety. Consequently, the appeal was dismissed, and the Court declined to make any order as to costs. The State Government succeeded in establishing that section 4(1)(a) of the Act is constitutionally valid, and that finding formed the real basis of its approach before this Court. Justice Patanjali Sastri, C.J., expressed agreement with the judgment recently delivered by Justice Mahajan and indicated that he had nothing further to add. Justice Mukherjea, concurring with the judgment of Justice Mahajan, offered additional observations concerning the publication that had prompted the Government to invoke security provisions under the Indian Press (Emergency) Act. He highlighted that the essential question was whether the words contained in the impugned publication fell within the description of section 4(1)(a), that is, whether they incited, encouraged, or tended to incite the commission of murder or any cognizable offence involving violence. Established jurisprudence requires that the writing be viewed as a whole, without undue emphasis on isolated passages or particular expressions, and that the likely effect of the writing on the minds of its intended readership be carefully considered. Moreover, the place, circumstances and occasion of publication must be taken into account, for a clear appreciation of the background assists the Court in placing the words in proper perspective. The leaflet in question bears the title “Sangram,” meaning struggle, and is composed in high-flown Bengali prose, incorporating a large mixture of poetic expressions randomly drawn from the works of several well-known Bengali poets. The object of the writing, as indicated, is...

From the material of the leaflet it could be understood that the writer intended to present a poetic and idealistic depiction of the notion of “struggle” or revolution. The document stated that the purpose of such “struggle” was to eradicate “oppression, injustice or wrong” which it claimed to be “pervading all over the world from the past to the future”; it further asserted that only after all such wrongs, injustice and oppression had disappeared could a new world be constructed. This overarching idea appeared to be the central theme of the composition, although it was expressed through language that was often incoherent and seemingly meaningless. The leaflet did not specify what particular kind of oppression, injustice or wrongdoing the author had in mind. It did not refer to any concrete grievances of a specific nature, nor did it hint at typical sources of discontent such as political inequality, economic exploitation or class conflict, which are common causes of agitation in many parts of the world. Nor did the pamphlet mention any unpopular measure or act of injustice that might have affected the people in the locality where it was published and intended to circulate. In one section the following words were quoted: “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.” The State did not produce any statement or affidavit indicating that these passages referred to the language controversy that had agitated the district. In another part the expression “narrow parochial politics” was employed, but the Government offered no explanation of what that phrase might signify in the specific context. Because the document lacked any explicit mention of particular acts of injustice or oppression, it was difficult to identify who the “oppressors” were, whose “proud heads” the author urged readers to break. It was evident that the “oppressor” referred to was neither the Government nor the ruling party, nor any defined class, sect or community that might be harassing others. While the provision of section 4(1)(a) of the Indian Press Act may allow incitement to murder or violence without being directed at specific individuals or groups, the leaflet’s discourse was abstract, portraying injustice as a timeless condition and expressing, in hyperbolic terms, a hope of achieving a better and purer world through struggle, sweat and blood.

The Court observed that the passage could not be improperly regarded as merely an effusion of poetic fancy, because it has no connection to actual facts and therefore possesses very little potency for committing mischief. The Court then proceeded to examine the contents of the pamphlet in detail. It noted that the writer begins in an affected poetic vein and describes, in language that is difficult to attach any rational meaning to, 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.” The Court explained that, if these words convey any sense at all, they can only indicate that the struggle or revolution that the writer wishes to depict is something different from what is ordinarily associated with social life and happiness; it represents a negation of all natural human feelings and sentiments.

In the next paragraph, the writer continues in equally enigmatic language to define what “Sangram” or “struggle” actually is. The text states: “I am old antiquated history,” and then continues, “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 future.” The Court remarked that it was unclear whether this was a poetic way of depicting the entire life process that is said to lie through struggle and guide human evolution on the planet. According to the author, struggle is co-existent with time and eternity. The writer then repeats the word “wrong” many times, asserting that “it is wrong which is pervading all over from the past to the future,” and that this wrong is to be rectified by the struggle. The struggle is analogized, for reasons known only to the author, to a piece of torn grass in the middle of a turbulent river and to a grain of dust thrown into the face of a cyclone. It is described as “dishonour, unhappiness, endless pain,” and is further likened successively to the frown of the beloved, to famine, storm and evil days. A call is then made to everyone to come “where the sky is cracking and the endless rough and thorny path is shrouded in darkness” and to assist in building a new world. The Court noted that many of the expressions appear to be taken verbatim from the writings of well-known Bengali authors, yet they amount to nothing more than a rigmarole in the present context. In the subsequent paragraph, the writer begins with the word “revolution,” stating that struggle is revolution and that through struggle and revolution the world is to be rebuilt anew. The writer then declares, “death is my darling and death is the only truth in this world.” The Court observed that, if a person must die, there is no sense in dying of illness; rather, a man should choose an honourable death by standing against oppressors, and the passage ends abruptly.

In this passage the author inserts the name of Sri Subhas Chandra Bose amid the earlier discussion and urges readers to listen to a call that is described as coming from far away across hills, jungles, rivers and streams, calling the voice of Subhas Chandra Bose, identified as the greatest revolutionary leader of the world. The author exhorts the people not to cease their efforts until the stated objective is achieved. The text further declares statements such as “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 showing any logical sequence of thought. Immediately after these declarations, the author, speaking through the personified figure of “struggle,” addresses an imaginary oppressor, saying, “Oh you foolish oppressor you want to terrify with your red eyes, I fear not.” The same voice then repeats well-known words of the poet Tagore, asserting that the speaker does not seek salvation through renunciation but desires the kind of salvation that lies in joy amidst innumerable dangers and difficulties. The subsequent passages elaborate on the idea of finding pleasure in everything that is hated, avoided or dreaded. The author states that “Death 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 rhythm of my song.” Continuing in the same vein, the writer conjures a series of uncanny and grotesque images and links them with the notion of struggle, proclaiming, “I am not joy, I am the remnant of the dying cries … I am the blood-thirsty goddess Kali 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 yet I want revolution, still I want struggle.” The learned judges of the High Court placed considerable emphasis on these passages, holding that, in their view, they constitute a direct incitement to a bloody revolution. That view was also adopted by counsel for the State, who argued that the passages unequivocally promote violent overthrow. Counsel for the respondent countered by asserting that the “struggle” presented by the author is intended to be non-violent and that the references to blood refer only to the blood of those who rise against oppression and injustice. Conversely, the State maintained that the quoted excerpts can be read only as an advocacy of a violent and bloody revolution that could achieve the desired ends. In my opinion, neither of these positions provides the correct method of approach to the question that

The Court observed that resolving the question before it required a decision on the matter presented in the present case. Consequently, the Court held that it must examine the entire article and direct its attention to the central theme or purpose that could be discerned from the whole. The Court noted that, as previously indicated, the writer appears to intend to portray an idealised picture of ‘struggle’ or revolution that is not tied to any specific locality, political setting or social environment. According to the author, injustice and oppression have existed since the earliest dawn of time, and likewise the phenomenon of struggle or revolution has been a perpetual element of the world’s process. The Court described this phenomenon as an integral part of worldly development, characterising it as an irrational or blind impulse that drives human behaviour. The writer’s own words, ‘I do not understand myself, I do not recognise myself, still I want revolution’, were highlighted as an expression of that blind impulse. In describing death or war, the Court observed that an artist would naturally employ uncanny associations to convey the horror of such events. The Court further explained that the author links the trappings of revolution with fearful and hideous elements such as thunder, storm, fire, devastation, cataclysm, famine, danger, destruction and death. The Court held that, for the purpose of this ideal picture, it is immaterial whether the blood mentioned is that of the oppressor or the oppressed, nor whether the struggle is violent or pacific. The Court then referred to the Hindu deity Kali, noting that she is regarded as the goddess of destruction and death. It added that Kali is also described as a benign protector whose hands shield people from oppression, danger and calamity. The Court observed that the association of revolution with the goddess Kali explains why the author assimilates the concept of struggle to this divine figure. While acknowledging that the author employs very strong language in depicting struggle or revolution, the Court stated that such language would not be abnormal if the writer’s aim was merely to create an idealised image. The Court warned that the depiction could be deemed an incitement if it were shown that the article encouraged the overthrow of the government or the administration of justice.

The Court observed that the author employs very strong language in depicting struggle or revolution, but such language would not be abnormal if the writer’s aim was merely to create an idealised image. However, the Court warned that if it could be demonstrated that beneath the vague and enigmatic wording there lies a concrete and tangible grievance, then the article might be covered by the statute. Specifically, the Court indicated that such an article could fall within the ambit of section 4 (1) (a) of the Indian Press Act. The Court added that this would be the case only if the words ‘oppression’ and ‘oppressor’ are understood to refer to actual persons or groups known to the readers, rather than to abstract concepts. The Court then observed that the Government had made no attempt to establish any of these factual circumstances. In the absence of knowledge about the surrounding circumstances and the actual background of the publication, the Court said it could not determine the true intention behind the writing. The Court further noted that no material had been placed before it by the Government that could reveal the real substance behind the possibly camouflaged language. Finally, the Court observed that the remainder of the article continued in the same hyperbolic and enigmatic style, with repeated use of similar stock phrases.

The Court observed that the article in question repeated the same stock phrases and expressions to an exhausting degree. It quoted passages in which the author declared, “I am the messenger of death. I am untouchable, I am vague, I am queer, I am nightmare, I am robber, I am enemy, I am unknown. I am not Falgoon with its sweet-smelling flowers; I am eternal separation, I am restlessness.” The Court expressed marked doubt that such expressions would not, to an ordinary reader, appear no better than the ravings of a mad man. Further excerpts were cited to reinforce this impression, for example, “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 was reproduced in full: “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 oppressions, all tyrannies be burnt in the flame.” The Court noted that there had been extensive discussion before it as to whether these passages suggested a violent or a non-violent struggle, and it acknowledged that they might be capable of either interpretation. However, the Court reiterated that such ambiguity did not provide a decisive solution to the question before it. The Court further observed that it was not essential to determine whether the author intended the “jealousy and malice” mentioned at the end of the article to develop and spread, or to be transformed into innocuous, sweet-smelling flowers, a matter on which reasonable difference of opinion could exist. The Court emphasized that the test was the overall impression the article would create in the mind of an ordinary reader, who was not expected to enlist an interpreter to uncover the true meaning of the words used. The Court also pointed out that many of the expressions had been taken verbatim from the writings of certain noted Bengali authors and were stock phrases current in Bengal and among Bengali-speaking communities elsewhere. If the reader perceived that the author merely sought to pass himself off as a noted writer through plagiarism, the Court held that, regardless of any other considerations, the article did not fall within the ambit of section 4(1)(a) of the Press Act. In its final assessment, the Court concluded that, taken as a whole, the article consisted of a tissue of high-sounding and meaningless words; whether the author attempted to imitate well-known Bengali poets in a poetic description of “struggle” or revolution, or tried to present himself as a liberator of mankind, a rational person would not take him seriously and would regard the composition as the vapourings of a deranged brain.

In this case, the Court observed that if the author of the pamphlet sought to present himself as a universal liberator who intended to eradicate the remaining traces of oppression and injustice from the earth, then any reasonable person would not regard the pamphlet seriously and would consider it the ramblings of a disturbed mind. Conversely, the Court held that if the pamphlet was intended as a clever stratagem designed to stir public opinion against particular individuals or authorities, then, despite the use of only general and vague language, the words could acquire meaning for persons familiar with the actual circumstances. In such a situation, the Court said it was incumbent upon the Government to clarify the background and context of the pamphlet and to present that information before the Court, because without such explanation the language would remain meaningless empty verbiage. Because the Government failed to fulfil that duty, the Court concluded that no security order could be issued against the respondent under section 4(1)(a) of the Press Emergency Act. Justice Das, speaking for himself, recorded that during the arguments he had entertained some doubt about the innocence of the meaning and implication of the pamphlet, but after reviewing the opinions of his learned colleagues Justice Mahajan and Justice Mukherjea, he felt unable to dissent from their interpretation of the pamphlet’s language and therefore agreed with their conclusion. Justice Bose expressed agreement with Justices Mahajan and Mukherjea. Accordingly, the appeal was dismissed. The appellant was represented by an agent named R.C. Prasad, and the respondent was represented by an agent named P.K. Chatterjee.