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Criminal Revision Application No. 15 of 1953 decided on 5th May, 1953.
S. 124‑A‑"Government estab lished by law"‑Council of ministers or individual minister-- Whether constitute Government.
The net result of the provisions of the Government of India Act and the rules of business is that the executive power vests in the council of ministers and sometimes even an individual minister. The council of ministers and even an individual minister qua his functions as a minister therefore may constitute Government established by law. A minister or ministers may have other capacities and while acting in other capacities they cannot of course constitute government established by law. A Prime Minister is generally the president of the Muslim League and a member of the Constituent Assembly. 'While functioning as president of the Muslim League or acting as a member of the Constituent Assembly a Prime Minister cannot possibly constitute government. But while discharging his functions as a Prime Minister and acting within the scope of his executive authority he may by himself constitute the government.
A minister while passing orders by virtue of provisions of the rules of business is a representative of the government estab lished by law.
The council of ministers is the embodiment of the authority of the State and consequently cannot but be regarded as a govern ment established by law, providing the ministers are acting in their official capacity and exercising governmental powers conferred on them under the constitution.
But it does not follow that every reference to a minister implies a reference to the government as such. A minister has got his own individual personality and may enjoy other capa cities. It is for the prosecution to establish in each case that a particular attack directed against a Minister necessarily means attack on the Government established by law. If the attack be on his individual Personality or other capacity, it cannot possibly amount to an attack on the Government.
Mrs. Annie‑Besant v. Emperor I L R 39 Mad. 1085, In the matter of petition of Sunderlal I L R 42 All. 233 (F B), A I R 1932 Cal. 547, A I R 1937 Lah. 513, Keder Nath v. The Crown, A I R 39 East Punjab 289, A. E. Rmakueup v. United States, Travancore Cochan A I R 50 Travancore Cochin ref.
Queen Empress v. Bal Gangadhar Tilak and Keshtv Mahadev I L R 22 Bom. 112, Emperor v. Sadahevarayan A I R 1947 P. C. 82, Emperer v. Bhuslar Belvant 8 Bom. L R 421, Rajpal v. The Crown I L R 3 Lah. 405, minerity judgment in A I R 1937 Lah. 513, Direndra Nath Sin and others v. Emperor A I R 1938 Cal. 721 and Hamendra Pd. Ghose v. Emperor A I R 1939 Cal. 529 distinguished.
Where a newspaper editorial and an accompanying cartoon purported to criticise the ‑Report of the Basic Principles Com mittee of the Constituent Assembly of Pakistan of which certain Ministers of Government happened to be members, Held, that there was nothing in the article or the cartoon which reflected on the Ministers as such.
S. 124‑A‑"Sedition" Essence of‑Intention of writer‑Article to be read as a whole.
The essence of the crime of sedition consists ‑in the inten tion with which the language is used and such intention has to be judged primarily by the language used. In arriving at its conclusions as to the intention of the accused the Court must have regard to the occasion on which and the circumstances in which the writing was published or representation made. Criticisms or condemnation of measures taken or policies pursued by the government with a view to their withdrawal or altera tion cannot per se be seditious. It is not every kind of disaffection, hatred or contempt which would constitute sedition. It is that degree of disaffection, hatred or contempt which induces" people to refuse to recognize the government at all and leads them to un‑constitutional methods which is essential before a charge of sedition can be held to be established.
The writing or representation has to be read as a whole and in a fair, free and liberal spirit.
A I R 1949 East Punjab 305, 1949 Lab. 256 and 1950 Lah. at pages 21 and 243 ref.
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---Application under Ss. 435, 438, Cr. P. C., disposed of under S. 439.
A. S. Suharwardy, Hassan Ali A. Rehman, Noorul Arifda and Fakhruddin G. Ebrahim, for Applicants.
Mansoor Hasan, for Crown.
‑A complaint was filed by Mr. A. H. Mirza, Assistant Inspector‑General, C. I. D., Karachi under sec tions 124‑A and 153‑A of the Pakistan Penal Code against Messrs. Z. A. Sulleri, editor, Khurshid Alam, printer and publisher of Evening Times, Karachi and one N. M. Kutpal, a cartoonist on 2nd January, 1953, under the directions of the Provincial Govern ment Karachi on the basis of the first page of Evening Times Quaid‑e‑Azam's birthday supplement dated 25th December, 1952, wherein were published an editorial under the caption "Hilal‑e‑Id Hamari Hansi Urata Hai" and a cartoon .by the side of this editorial. The editorial impugned is reproduced below in full :‑
" On September 11 we mourned the death of the Father of the Nation. To‑day we are awakened to the morning light of his birthday. It is at once the greatness of his name and the low ebb of our national life that only one name is gloried in such annual celebrations in Pakistan.
Yet it will be hyprocrisy to deny that this day our hearts are sad. So much so indeed, that even the consciousness of this historic occasion does not cheer us. Through his life, which began this day 76 years ago, the Quaid gave a new life, a new "habitation and name" to his fallen people. No wonder his birthday became a symbol of the nation's resurrection.
It is the sharp contrast of his achievements against our unworthiness that causes a reflective mood, He made the Bengalis, Punjabis and Madrasis think alike in terms of Islam. We have on our part achieved a remarkable reversion to our old nomenclatures. In the pre‑partition India we felt the thrill of a united nation five years after independence we are framing a constitution wherein considerations of provinces have so crushed the soul of the people that it is in agony.
The grand conceptions of the Founder have disappeared with him. Now remain cliques, groups, tricks and political manoeuvrings. Where are the dreams of beginning a new era of Islamic renaissance Are we the inheritors of Quaid's Pakistan There are plenty of schemes to make the State Islamic, but is there any cure for our own faithlessness Can Islam flourish among a people who have set such a low standard of honesty, truth and high‑mindedness Which is to begin first‑the Islamic State or the Islamic spirit
The irony of it is that the world is drifting both towards religion and Islam. As advancing science leaves the narrow shores of, its limited assumptions, it soars high to a position whence it can see the comprehensive whole of knowledge. And what is that knowledge. God is the Creator of Heaven and Earth and Man. These three elements in the universe have to harmonise‑what for, one does not know. And it is their harmony that Islam seeks. Thus Islam is the destiny of man but are we, the so‑called Musalmans, the usherers of this destiny Having brought about a country on the basis of Islam‑apparently to give it modern expression we have turned against it. Even those who talk the loudest about Islamic democracy are without faith in it. Their mental reservations are writ large on their faces. Those who delight in knowing the intricacies of Islamic philosophy are hardly the men of action that built the early civilization. Both have one thing in common ; a lack of character. One talks a lot, the other parades his knowledge; none feels the obligation of telling the truth.
It is such who have inherited Pakistan ; it is they who will shape its destiny. It is a terrible thought, Oh Quaid, it is a terrible prospect. Since we remember you so deeply on this day, we cannot help feeling sad at heart. This is the saddest day of our life."
The cartoon comprised a photo of the Founder of the nation, Quaid‑e‑Azam Muhammad Ali Jinnah followed by figures of six persons that is to say Khwaja Nazimuddin, the then Prime Minister of Pakistan, Hon'ble Nurul Amin, Hon'ble Dr. A. M. Malik, Messrs. Fazlur Rabman, Ghayasuddin Pathan, then Ministers in the Central Cabinet, and Mr. Altaf Hussain, editor Dawn. Further below these figures are other figures who cannot be recognised as known personalities. Just below is a map of Pakistan. The whole of Pakistan is depicted as being in flames.
The prosecution case would be evident from some of the paras. of the complaint quoted below : ‑‑
Para. 5.‑"Read in conjunction with the editorial note it is perfectly plain that the six figures depicted in the cartoon are suggested to be responsible for setting Pakistan to flames and for bringing about its internal disorder. The placing of these figures at the top of a cartoon extending over more than half of the page depicting the whole country going up in conflagra tion accompanied by acts of violence is calculated to result in creating hatred against any government in which they hold a seat of power and against any province with which they can be represented as being especially associated ---------The page construed as a whole depicts in very forceful and unambiguous manner the comment of the accused above‑named that the Bengalis are out to destroy Pakistan and that Pakistan Government as also the Government of East Bengal which is headed by the Prime Minister Mr. Nurul Amin cannot appreciate the sentiment of the people of Pakistan."
Para. 8.‑"It is submitted that the whole first page of Evening Times Quaid‑e‑Azam's birthday supplement of 25th December, 1952 comes within the purview of section 124‑A and 153 A of Pakistan Penal Code. The operation of these sections is attracted upon the consideration that the persons evidently depicted as responsible for the destruction of the country are members of the Government. one head of the Government of the whole country and the other head of the Government of the province. They are the head and front of their Governments. The cartoon and the editorial note are calculated to be a powerful condemnation of the existing regime, in that, they clearly show that fire and insurrection are brought upon the country by men who hold responsible positions in the central and the provincial cabinet. Anyone reading the note and seeing the cartoon is likely to have feelings of hatred not only against the Government established in the provinces and the Federation of Pakistan, but also against Bengal section of Her Majesty's subjects because it is the Bengalis who as being responsible for the wanton destruction of the whole state."
Para. 9.‑"Ever since the presentation of the report of the Basic Principles Committee by the Prime Minister the Evening Times has asserted that the Eastern Wing of Pakistan is out to dominate and destroy the Western Wing of Pakistan. The comments appearing in the said paper in its issues of 22nd, 23rd and 24th December, 1952 are relied upon by the prosecu tion for the purpose of showing the context in which the first page of the Evening Times is to be interpreted."
The prosecution filed issues of Evening Times dated December, 22nd marked Exh. 11 and that dated December, 24th marked Exh. 13. The comments in the Evening Times dated December, 22nd and marked Exh. 11 ‑deal exclusively with the recommendations of the Basic Principles Committee which were published the same day that is to say 22nd December, 1952. The first para. of these comments runs thus‑
"Word cannot convey the deep sense of shock, grief and betrayal that we have felt on learning the recommendations of the Basic Principles Committee. Whatever might be the confusing tricks and quibbling of constitution‑making, the Authors of the Report have brought home to us one fact with all the clearness of broad day‑light‑‑that they have not been inspired by the conception of a united people; that they just do not believe that there is any characteristic of unity, integrity and indivisibility about the nation ; that Pakistanis are just a motley lot, possessing no soul, no singleness of mind, nothing that distinguishes a German from an Englishman, a Japanese from an American."
The comments concluded with the following two paras :‑
"To‑day we have only touched upon the central aspects of the Report. We shall from now onward give detailed con sideration to every aspect of the recommendations of the Committee and prove up to the hilt that a constitution based on its report will not represent the sentiments and hopes of the people. Meanwhile we shall advise Khawaja Sahib not to hurry with its passage. Let the people have a chance to express themselves on the Report. Any attempt at rushing the Report into law will be resisted. Also we shall request those of the members who resigned from the Committee to inform the people of their reasons for doing so. Their explanations are bound to throw further light on the motives of those who continued to sit on the committee.
We end on an appeal to Mohtarma Miss Jinnah. We under stand she has in her possession some notes of the Quaid which form an outline of a constitution for Pakistan. Let her make those notes public; they will show how sharply the Committee has departed from the ideas of the Father of the Nation."
The comments dated 24th December marked Exh. 13 bear the headline "what then " and are again confined to recommen dations of B. P. C. Report. The first para of these comments runs thus:‑
"The greatest failure of the Basic Principles Committee Report lies in the fact that it has set minds moving in provincial grooves. It was inevitable. When the entire approach of the Committee was conditioned by a deep anxiety and endeavour to accord exclusive recognition to one province over the rest, the reaction of the other provinces is bound to be a effort to guard what they conceive to be their peculiar interests. It is broad‑mindedness which begets broad‑mindedness. If the rulers had set an example in large, national thinking, the people would no doubt have responded in similar terms. As it is, we are deemed to face the provincial music. What then "
The comments end with the following para:‑
"We hope that the Basic Principles Committee Report will be revised along the above lines. If it is not, we are afraid, we will be confronted with the alternative of a confederacy. Ordinarily if a confederal center is vested with foreign affairs and defence, it will, in the nature of things, become strong, because these two subjects in the modern situation command all the other subjects in order to achieve a collective mobilisation of the nations resources in the event of war, as well as during the armed peace of these times.' But in our present frame of mind we are bound to deny this position to the confederal centre, Thus we will be left with a choice of entering into offensive‑defensive alliances or reducing the centre to a position of a mere symbol like London is for the Commonwealth. This is the alternative before us, a terrible alternative; there are germs of disintegration in it. Yet it can be cast aside if we show a little vision, a little far‑sightedness, a little less absorption in the vested interests of our own life‑time, a little regard for the historic movement which involved the destruction of a (7) million, a little thought for the blessing of those who have yet to come and a little fear of their course . ... Surely we are capable of this little."
The following day was the birthday of the Founder of Nation and the Evening Times published a supplement in which the impugned article quoted and the Cartoon described above appeared.
The prosecution examined two witnesses, one the complainant himself and the other Fazal Muhammad Khan who is a formal witness. The complainant made certain statements in the course of his cross‑examination which it is proper to quote here to give a complete picture of the prosecution case. The witness said in the cross‑examination‑
"This cartoon Exh. 10‑B was published after the publication of B. P. C. Report. This cartoon Exh. 10‑B refers to the effects of B. P. C. Report according to Mr. "Sulleri, the accused. I believe that the report was produced by the Basic Principles Committee, which is committee of the Constituent Assembly."
"The accused Sulleri has been writing comments on the B. P. C. Report since 22nd December 1952. These figures in the cartoon Exh. 10‑B do not appear to set fire physically to Pakistan ...I only see that Pakistan bad been depicted as in flames in Exh. 10‑B, but in reality it is not so. Exh. 10‑B illustrates the letter press Exh. 10‑A, I have read parts of com ments appearing in Evening Times dated 22nd and 24th December 1952. I rely on evening Times dated 22, 23 and 24th Decem ber for interpreting Exh. 10‑A and Exh. 10‑B. I have read the whole of Exit. 10‑A and the quotation in para. 6 of the complaint namely. We have on our part achieved remarkable reversion in our old nomenclature. In the pre‑partition India we felt the thrill of a united nation; five years after the independence we are framing a constitution wherein considerations of provinces have so crushed the soul of the people that it is an agony.' This is particularly illustrated in the cartoon Exh. 10‑B. In the cartoon the fire does show agony."
"The words 'sentiments and hopes of the people' find place in Exh. 11‑A. It relates to the B. P. C. Report apparently."
The accused were examined on 23rd and 24th February 1953. Among the questions put to the accused Z. A. Sulleri, the following may be quoted in extenso :‑
Question. It is alleged against you that the cartoon Exh. 10‑B published side by side with the editorial Ex. 11‑A is intended to be the illustration of this editorial.
Answer :‑Yes:
Question: It is alleged against you that the plain interpretation of Ex. 10‑A and 10‑B. is that the six figures depicted in the top portion of Exh. 10‑B (4 Central Government Ministers; one Provincial Chief Minister and the editor of the Dawn) are respon sible for setting Pakistan in flames and for bringing about its internal disorder as shown in the cartoon.
Answer...No.
The accused Mr. Sulleri added that he had been for about 15 years engaged in the struggle and services of Pakistan and after enumerating his services and after expressing his views on the future constitution of the country concluded as follows :‑
"Your honour will thus see that I have not criticised the B. P. C. recommendations merely for the sake of criticism but have earnestly suggested alternative proposals solely with a view to secure a consolidated unity of the nation. I hoped that the six figures in particular which appear in the so‑.called cartoon of the paper of 25th December 1952 would as prominent members of the constituent assembly B. P. C. Committee and influential leaders of the country and East Pakistan do their best to extinguish the fire of the bitter and tearing controversy which has arisen out of the provincial provisions of the B. P. C. Report and the subsequent agony of the people. This was my appeal to them on the birth of the Quaid‑e‑Azam when we are in a specially chastened mood to remember the teachings and emulate the example of the Founder and the Father of the Nation. The repeated postponements of the consideration of the report show that the efforts towards achieving greater national unity are afoot and that my little voice has not quite proved a cry in the wilderness."
The learned Magistrate framed charges against the accused on 25th February. The charge against all the three was as follows:
"That you on or about 25th day of December 1952, at Karachi in furtherance of the common intention of bringing or attempting to bring into hatred or contempt and/or in furtherance of the common intention of exciting or attempting to excite disaffection towards the Government, established by law in the provinces as well as the Capital of the Federation of Pakistan, aided and abetted one another in writing, printing and publishing an editorial Exh. 10‑A and side by side a Cartoon Exh. 10‑B intended to be the illustration of this editorial which it surrounds in the issue of the Evening Times of that day and which cartoon is clearly intended to show that the six figures depicted in the top portion thereby (4 Central Government Ministers, one Provincial Chief Minister and the editor of Dawn) are responsible for setting Pakistan in flames and for bringing about internal disorder and further that this Bengali dominated Government of Pakistan is responsible for the chaos, disorder and demoralization of the whole country.
And that you thereby committed an offence punishable under section 124-A read with sections 34 and 109 of the P. P. C. and within my cognizance.
And I hereby further charge you.‑‑
That on the aforesaid day time and place you in furtherance of the common object of promoting or attempting to promote feelings of enmity or hatred between different classes of Her Majesty's subjects in Pakistan aided and abetted one another in printing and publishing the above mentioned editorial Exh. 10‑A and cartoon Exh. 10‑B in the issue of the Evening Times of that date with the object of promoting feelings of enmity or hatred against the Bengal section of Her Majesty's subjects.
And you thereby committed an offence punishable under section 153‑A read with sections 34 and 109 of the P. P. C. and within my cognizance."
On 21st March 1953 the learned counsel for the prosecution Mr. Raymand was asked by the Court whether he had any further evidence to produce, The learned counsel took three days time to inform the Court whether the prosecution wanted to examine any further witness and subsequently informed the. Magistrate on 24th March 1953 that he bad no further witness to examine in the case except Mr. Khaleel a handwriting expert to show that the Cartoon in question had been signed by the accused Kutpal.
Meanwhile an application in revision under section 435 read with 438 Cr. P. C. directed against the framing of the charge under sections 124‑A and 153‑A, P. P. C. by the learned Magistrate against the three accused was filed in this Court on 23rd March 1.953. The revision came up for admission before me on 27th March, 1953. Being conscious that a charge could be upset in revision only when an offence as alleged could not be made out on the face of the record I went through the complaint, impugned page of December 25 and comments appearing in the issues of December 22 and 24 and felt that no charge under sections 124‑A and 153‑A, P. P. C. could be sound on the basis of the editorial and cartoon appearing in Founder's birthday supplement. I accordingly issued notice to the Crown.
The application came up before me for final hearing on 13th April 1953. The learned counsels for the accused petitioners urged before me three contentions, firstly that a counsel of Minis ters whether central or provincial or ministers singly do not and cannot constitute Government established by law as contemplated by section 124‑A and consequently an attack on Ministers even though it be seditious cannot fall within the mischief of section 124‑A. Secondly the impugned page is not directed against Ministers collectively or individually but is confined to criticism of constitution makers and the proposals put forward before the country by the Basic Principles Committee ; thirdly even if it be conceded that comments and criticisms as embodied in the editorial and cartoon are directed against the Central and Provincial Governments they cannot be called seditious as contemplated by section 124‑A and lastly the impugned articles and cartoon do not fall within the mischief of section 153‑A. I propose to deal with these contentions seriatum.
The first submission is that a council of ministers or a minister acting as such can in no circumstance constitute Government as contemplated by section 124‑A and that "the words Government established by law" only connote the system of Government or the political framework as in force in the country: The word Government in its dictionary meaning implies either a system according to which a nation or a community is governed or the body of persons charged with the duty of governing. We have to see in what sense the words Government established by law are used in section 124‑A. The P. P. C. embodies the definition of the Government in section 17 of the Code itself, which runs thus:‑
"The word "Government denotes the parson or persons authorised by law to administer executive Government in the provinces or in any province or in, any part thereof."
What therefore constitutes Government depends on the provisions of the constitution of the country in force. We are governed by the Government of India Act 1935. The following sections of the Act throw light on the point in question :‑
Section 9.‑"There shall be a council of Ministers to aid and advise the Governor‑General in the exercise of his functions."
Section 17, sub‑clause 3.‑The Governor‑General shall make rules for the more convenient transaction of the business of the Federal Government, and for the allocation among Ministers of the said business."
Rules of business have been framed by the Governor‑General for the conduct of the business of the Federal Government. Rule 3 of the said rules of business says :‑
1. "The business of Government shall be classified and distributed amongst the several divisions specified in schedule 2 in the manner indicated therein provided that the distribution of business or the constitution of divisions may be modified from time to time by the Prime Ministers."
2. "The Governor‑General in consultation with the Prime Minister shall allocate among his Ministers the business of Government by assigning the several Ministers specified in schedule 1 to the charge of the Ministers.
Rule 6 is as follows:‑
"The cabinet as a whole is responsible for the advice tendered to or the executive orders issued in the name of the Governor General, whether by individual minister or as a result of decision by the cabinet, but the minister incharge shall assume 'primary responsibility for the disposal of business pertaining to his portfolio."
The rules of business further provide that certain matters have to be brought before the cabinet before orders are issued and in some cases prior approval of the Governor‑General has to be taken: Similar provisions exist in regard to the Provincial Governments. The net result of the provisions of Government of India. Act and the rules of business is that the executive power vests in the council of Ministers and sometimes even an individual minister. The council of Ministers and event an individual Minister qua his functions as a Minister therefore may constitute Government established by law. A minister or ministers may have other capacities and while acting in other capacities they cannot of course constitute Government established by law. A prime Minister is generally the president of the Muslim League and a member of the Constituent Assembly. While functioning as president of the Muslim League or acting as a member of the Constituent Assembly a Prime Minister cannot possibly constitute Government. But while discharging his functions as a Prime Minister and acting within the scope of his executive authority he may by himself constitute the Government.
The above conclusion of mine finds support from several decided cases. I may refer to some of them.
In the matter of Mrs. Annie Besant v. Emperor (I L R 39 Mad. p. 1085.), the officiating C. J. Sir Abdul Rahim observed as follows :‑
"The question has been referred as to the meaning of the phrase "Government established by law in British India." It is contended by the applicant that what is meant by that phrase is the supermacy of the British Crown or the British connection as opposed to independence. This cannot be a definition of Government as used in the section: it would be only indicating the essential' elements of the political relation between India and Great Britain. Government denotes established authority entitled and able to administer the public affairs of the country."
In Pakistan such an established authority so far as federal affairs are concerned is the Central cabinet and in Provinces the Provincial cabinet.
In the matter of petition of Sunderlal reported in (I L R 42 All. 233.) Full Bench of the Allahabad High Court held as follows :‑
"We are of the opinion that the phrase Government estab lished by law in British India' means the established authority which governs tire country and administers its public affairs and includes the representatives to whom the task of Government is entrusted.
A minister while passing orders by virtue of provisions of the rule' of business is in my opinion a representative of the Government/established by law.
The above two cases were followed by the Bench of Calcutta High Court in a case reported in A I R 32 Cal. at page 547. Their Lordships observed at page 548 :‑
"It appears to us that the Government established by law in British India includes the executive power in action and does not mean merely the constitutional framework. It includes the Local Government as well as the Central Government."
The same question came up for consideration before a Special Bench of the Lahore High Court reported in A I R 1937 Lahore page 513. C. J. Young observed as follows :‑
"In my opinion, therefore, reading section 4 and the Explana tions together the terms 'Government' and Administration' cannot mean some abstract‑ conception, but refer to real, concrete, existing, bodies of human beings, capable of passing measures and performing administrative acts."
Tek Chand J. differed from this view but Addison, J. concurred.
Our neighbouring country Bharat was governed under the same Government of India Act 1935 prior to promulgation of her new constitution. A similar question arose before the Special Bench of East Punjab High Court. In the case Kedar Nath v. The Crown reported in (A I R 39 East Punjab at page, 289.), their Lordships after discussing the case‑law on the point recorded a finding that ministers or ministry as a whole constitute Government as established by law. The same view has been taken in the latest case on the point in A. E. Ramakurup v. United States, Travanoore Cochin, reported in (A I R 50 Travancore Cochin page 83.) Their Lordships analysed the constitution in force which is practically on the same lines as the Government of India Act, and recorded their conclusions in Para, 20 :‑
"We therefore feel no hesitation in holding that the council of ministers do represent the Government under the Interim Constitution Act."
I have at the very outset analysed the provisions of the Government of India Act and rules of business framed there-under. The learned counsel for the petitioner overlooked those provisions and argued on the basis of certain decided cases that ministers collectively or individually could not even qua their functions and authority as ministers constitute Government established by law. I may here deal with the cases relied upon by the learned Counsel for the petitioner.
The first case referred to by them is the famous Tilak case reported in Queen Empress v. Bal Gangadhar Tilak and Keshev Mahadev (I L R 22 Born. p. 112.). My attention was drawn to the following passage in the summing up by Mr. Justice Strachy :‑
"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."
Emphasis is placed on the words existing political system as distinguished from any particular set of administrators, while the first part of the summing "British rule and its representatives as such" is ignored. In 1897 the ruling authority for governing the country vested in the Secretary of Sate for India, who was a member of the British Cabinet, and its representative the Viceroy in India. The two parts of the same sentences must be read together. It was observed by justice Addison in the case reported in 1937, Lahore at page 513:
"Expression used by Strachy J. seeks to distinguish the representative of rule as such from the individual administra tors as such and goes no further. The term "representative of rule as such" means those persons who carry out be policy of a rule or Government on the lines indicated by the ruler. In other words they are identified with the ruler and symbolise it in their administrative deeds. Whatever they do is done by the directions and with the approval of the authority in whom such direction or approval vests and their deeds then are considered to be the deeds of the ruler himself. On the other band, all acts other than those specified above are done by them in their individual capacity and qua them they cannot be considered as representatives of the rule which they serve. To take a concrete instance : if the Collector of a District realises land revenue at the prescribed rate, he does it in his representative capacity and the act is the act of the ruler, but if he himself employs methods for its realisation which are not permitted under the law or have not the sanction of the State he does these acts in his individual capacity and on his own responsibility. When an attack is made on him in his former capacity the attack is on the rule he represents but if his method of realisation alone is condemned the condemnation will touch his person alone and will not travel beyond his individual capacity."
I am in respectful agreement with the above observations. If Mr. Justice Strachey intended to lay down that the Government simply meant a particular political framework of the constitution then in force cannot possibly express my assent thereto. The learned junior counsel for the accused Mr. Hasanali contended that the observations of Mr. Strachey have found approval of the Privy Council. His reasoning was that Tilak's case went to their Lordships of the Frivy Council who did not express any dissent from the summing up of Mr. Strachey. On the other band their Lordships referred to it approvingly in the case Emperor v. Sadahevnarayan reported in (A I R 1947 P C 82.) There are various flaws in this reasoning. Neither in the grounds of appeal nor in the course of arguments before their Lordships of the Privy Council in Tslak's case anything had been said or addressed as to what constituted Government. The theme of attack was the direction of the learned judge as to what constituted disaffection or ill‑will. Their Lordships of the Privy Council no doubt observed :‑
" There is nothing in that summing up which calls upon them to indicate any dissent from it or necessary to correct what is contained there under, looking at the summing up as a whole and looking at each part of what was said by the light of what else was said."
The above observations of their Lordships were however neces sarily directed to what had been said by the learned judge in regard to meaning of the words disaffection or ill‑will. In the case reported in 1947 Privy Council their Lordships were again considering what is the import of the words hatred, contempt or disaffection used in section 124‑A and whether incitement to violence was a necessary ingredient of the crime of sedition. It is with reference to the point under consideration that we are to look at par's. 15 referred to me by the learned counsel which runs thus :‑
" In conclusion their Lordships will only add that the amendments of section 124‑A in 1898, the year after Tilak's case by the inclusion of hatred or contempt and the addition of expressions 2 and 3 did not affect or alter the construction of the section laid down in Tilak's case and in their opinion if the Federal Court in A I R 1942 F C 22 had given their attention to Tilak's case they should have recognised it as an authority on the consideration of section 124‑A by which they were bound."
Necessarily their Lordships of the Privy Council had in view the ingredients of sedition and were considering whether incitement of violence was necessary and essential element of sedition.
The next case referred to me on behalf of the petitioners was that Emperor v. Bhaskar Balvant reported in (8 Bom. L R 421) Portion of observations at page 438 lend support to the contention of the learned counsel for the applicant. I may quote that :‑
" What is contemplated under the section is the collective body of men‑the Government defined under the Penal Code. as the person or persons authorised by law to administer executive Government in any part of India. That does not mean the person or persons for the time being. It means the person or persons collectively, in succession, who are authorised to administer Government for the time being. One particular set of persons may be open to objection, and to assail them and to attack them and excite hatred against them is not necessarily' exciting hatred against the Government because they are only individuals, and are not representatives of that abstract conception which is called Government ".
But this had to be read in the light of what follows on the same page.
" Therefore you will consider whether on attacking what is essentially British the thing aimed at is the Government or the individual or a particular measure‑that which is transitory occasional and temporary or that which is vital and permanent in the idea of the Government as established bylaw."
In 1905 the ruling power vested in the British Government while now the seat of authority is the cabinet. The cabinet now has taken the place of the British and it is in that light that we have to consider whether a council of ministers or a minister while exercising the powers of the cabinet does or does not constitute a Government. To that extent this case is no authority for the proposition that cabinet cannot constitute Government established by law.
The next relevant case is that of Raital v. The Crown (I L R 3 Lah. 405) Their Lordships in this case approved of the observations in the Tilak's and Bhaskar's cases discussed above but they also approved the observations of the Allahabad High Court in I L R 42 All. This is what they said :‑
" The learned Government Advocate places his reliance upon judgment of the Allahabad High Court reported as in the matter of the petition of Sunder Lal where it was laid down that the expression Government established by law in British India " means the established authority which governs the country and administers its public affairs, and includes the representatives to whom the task of Government is entrusted. I have no quarrel with that dictum because it is clear that the articles dealt with in that case excited hatred against the rulers as a whole or the ruling classes in British India. In the present case the persons against whom the paragraph was directed were a few police officials employed at a particular station, and it is impossible to identify them with .the Govern ment or the general body of rulers."
This case to my mind was correctly decided. It is perfectly true that a few officials cannot be identified with the Government. But a council of ministers or a minister exercising the powers of the council of ministers, as contemplated by the rule of business is not the same thing as a few officials. The council of ministers is the embodiment of the authority of the State and consequently cannot but be regarded as a Government established by law, provided the ministers are acting in their official capacity and exercising governmental powers conferred on them under the constitution.
I shall next refer to minority judgment of justice Tek Chand in the case reported in A I R 1937 Lah. The reasoning of Tek Chand J. was based on the foregoing cases already dealt with Mr. Justice Addison adequately met some of the arguments given by Tekchand J. There is however one reason advanced by justice Tekchand which I should take note of. His Lordship observes :‑
" Indeed his (Government Advocate) interpretation, if accepted will lead to startling consequences. If that were the correct legal view it would be a sedition to criticise the policy or administrative acts of a particular officer or officers e.g., the executive councilors and ministers of Provincial Government under the existing constitution or the ministry as a whole under the new constitution, if such criticism is couched in a language which brings or attempts to bring hatred or contempt or excite disaffection towards these parti cular officers singly or collectively as distinguished from the system of Governments established in the country.
The remedy for the consequences apprehended by his Lordship does not lie in ignoring the provisions of section 17 P. P. C. and the relevant section of Government of India Act while interpreting the words the Government established by law. But the remedy to my mind lies firstly in liberally interpreting explanations appended to section 124‑A, secondly strictly construing the words hatred, contempt and ill‑will used in the section, thirdly requiring strict proof of intention on the part of the accused, fourthly reading section 124‑A subject to requirements of the constitution and convention thereof and lastly having the section amended so as to bring the law of sedition in line with that prevailing in England. The last remedy lies with the constitution makers of the legislature but not with the judiciary. The other remedies indicated above are available to the Courts and sanctioned by judicial authority and precedent. Conception of sedition has not been stationary. It has been changing from time to time. As observed by justice Dar in Mufti Fakhrul Islam v. Emperor (A I R 1943 All. p. 243,) it should be difficult to found a charge of sedition upon the ideas, sentiments and expressions which have become a part and parcel of normal political life of the country. The concept of party Government implies criticism of the party in power with a view to bring about its fall and exist. No interpretation of section 124-A, P. P. C., can be made unmindful of the implications of this fundamental basis of our constitution.
The last two cases relied upon by the applicants are those of Direndra Nath Sen and other v. Emperor (A I R 1938 Cal, 921) and Hamendra Pd. Ghose v. Emperor (A I R 1939 Cal. 529.). Both these cases support the contention of the learned counsel for the applicant. But these cases proceeded on the view that a minister cannot be held to be an officer subordinate to the Governor‑General within the meaning of the Government of India Act. This view did not find favour with their Lordships of the Pivy Council who held that a minister is an officer subordinate to the Governor. These cases therefore have lost all authority on this point.
Lastly I was referred to certain passage in the Digest of Libel and Slander by W. Blake Odger at page 420, but learned counsel entirely overlooked the following passage at page 417 :‑
"It is sedition to speak or publish of individual members of the Government words which would be libel and actionable her se if written and published of any other public character. It is also sedition to speak or publish words defamatory of the Government collectively or of their general administration with intent to subvert the law, to produce public disorder or to foment or promote rebellion."
After careful consideration of the relevant provisions of the Government of India Act, Rules of business there-under and the case law I have come to the conclusion that council of ministers or even a minister while acting in his official capacity and within scope of his authority can constitute Government established by law. But it does not follow there-from that every reference to a minister implies a reference to the Government as such. A minister has got his own individual personality and may enjoy other capacities. It is for the prosecution to establish in each case that a particular attack directed against a Minister necessarily means attack on the Government established by law. If the attack be on his individual personality or other capacity, it cannot possibly amount to an attack on the Government.
The second contention on behalf of the petitioners is that the editorial and the cartoon at page one of Quaid‑e‑Azam's birthday supplement refer merely to the effects of the recommendations of the Basic Principles Committee as conceived by the writer and did not contain a single word against the central or provincial cabinet or any minister as such. I have no hesitation in accepting this contention. The mere perusal of the editorial quoted above and reading of the cartoon in the light of, the editorial would show that they were not directed against the central or provincial ministers as such. The impugned article and the cartoon were published on the birthday of the Founder of the Nation‑a day which to many is a day of stock taking. Three days before, the Basic Principles Committee Report had seen the light of the day. Reaction to this report in some parts of the country was extremely adverse. I can take judicial notice of the fact that a bitter controversy followed the publication of the report so much so that its consideration and adoption was postponed from time to time and ultimately postponed indefinitely on 21st January 1953 by the Constituent Assembly of Pakistan. The position has been summed up by a writer in the following lines appearing in the March number of the famous Commonwealth Journal "The Round Table"
"After a prolonged period of gestation Pakistan is in the throes of producing a constitution.''
"The process is proving particularly painful because the Basic Principles Committee, the body of leading politicians appointed by the Constituent Assembly to draw up the outlines. has had to steer a middle course between the conflicting claims of East and West Pakistan, as well as attempting to satisfy the fanatical section of the population who will accept nothing less than a full fledged Islamic State. The report of Committee was presented by the Prime Minister on December 22. He claimed, in an eloquent speech, that it set out the principles of a democratic Islamic constitution safeguarding the interests of the non‑Muslim minorities, and that by providing for parity of representation for the two wings of the country in the federal legislature it would serve to bring about a happy interdependence and the growth of feelings of unity. These hopes were immediately belied by the outbreak of an acute controversy, which revolved chiefly round the parity proposals."
"The Provincialism has always been recognized as one of the main threats to the unity and stability of Pakistan, and it can hardly be denied that in the two years which have elapsed since the interim report of the Committee was issued provincial jealousies and rivalries have increased rather than diminished."
"Whatever the other provinces may have thought of this compromise, it soon became clear that the Punjab would have none of it. The leaders of the province which Jinnah called "the heart of Pakistan" saw no logic in treating a single unit, East Pakistan, as of equal importance with all the other units put together, and regarded it as an affront to the dignity of West Pakistan ; they preferred the original proposals, even though they gave the East the control of the lower and more important House."
The Constituent Assembly of Pakistan came into existence under Indian Independence Act, 1947. It has got two capacities. In one capacity it has got the powers of making provisions as to the Constitution of Pakistan. In other capacity it exercises the powers of the central legislature. While sitting as a central legislature its enactments have to receive the assent of the Governor‑General and no enactment can become operative till it has been aseented to by the Governor‑General. On the other hand enactment passed in its constitution making capacity become enforceable after it is notified under the signature of the President of the Constituent Assembly. The ministers as such are only recognised in the central legislature and have no existence in the Constituent Assembly while sitting and functioning as constitution making body. No‑measure then is sponsored on behalf of the Government. This all is clear from the provisions of the Indian Independence Act, and the rules framed by the Constituent Assembly of Pakistan. The Government as such is not charge with the duty of framing the constitution. It is Constituent Assembly of Pakistan or its committees which are charged with the duty of framing the constitution.
The article in question in its first 2 paras. bemoans the fall in our national standards. The third para. laments that provincialism has taken root in our midst and has crushed the spirit of oneness that kindled the fire of struggle for the achievement 'of Pakistan. The fourth para. again refers to our fall from the original high pedestal. The sixth para. refers to lack of character in those who guide the nation. The last para. is the sum up of the feelings of the writer reflected in the foregoing paras. It is therefore clear that the article attacks the prevalent tendencies in the nation and leadership and questions the basis on which future constitution is sought to be reared. I repeatedly asked the learned counsel appearing on behalf of the Crown to show me a single line or word which could be said to be directed against cabinet as a whole or 'a single minister as such: My attention was drawn to the words:
"It is such who have inherited Pakistan."
And it was asserted that the word "such" refers to six persons in the cartoon. And as five of them were either Central Cabinet Ministers or Provincial Cabinet Ministers, it must be taken that the article was directed against the Central and Provincial Ministers. I find no warrant for this assertion. The word "as such" refers to two kinds of leadership mentioned in the following words of the preceding para:‑
"Even those who talk the loudest about the Islamic Democracy are without faith in it. Their mental reservations are writ large on their faces. Those who delight in knowing the intricacies of Islamic phylosophy are hardly the men of action that built the early civilization. Both have one thing in common ; a lack of character."
Evidently the writer refers to secular minded politicians who talk about Islamic Constitution without having faith in it and Maulvis learned in Islamic phylosopby. Even if it be conceded that the word such' refers to six personalities shown in the cartoon, it cannot refer to Central or Provincial Cabinet Ministers. Out of these six one is not a minister at all. The other five are the members of the Constituent Assembly and are prominent figures in the Muslim League. While talking of the constitution the writer could only refer to them either as constitution makers or important leaders of the country. It was admitted by Mr. Mirza that the fire in the cartoon shows agony of the people as interpreted by Mr. Sulleri. Agony in the nation according to the article is because of the crushing of the soul under the dead weight of provincialism. To my mind there is nothing in the article or the cartoon which could reflect on the ministers as such. It was argued before me that common man would take the article, in the light of cartoon, to be directed against ministers as such. On 25th December 1952 a controversy as to the recommendations of the Basic Principles Committee was raging in the country. When reference is made to such recommendations in the editorial necessarily public attention would be directed against those who are charged with the duty of framing the constitution and not against those who are charged with the duty of governing the country. In this view of the matter there cannot be the least doubt in any reasonable mind that the reflections and comments in the editorial and the cartoon were directed primarily against constitution makers and incidentally against League leadership which alone can be said to have inherited Pakistan from Quaid‑e -Azam.
The next contention' urged on behalf of the applicant is that even if it be conceded that the criticisms and comments embodied in the impugned article and cartoon are directed against Central or Provincial Cabinet Ministers, they do not fall within the purview of section 124‑A. The relevant portions of section 124‑A may be quoted below :‑
"Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, brings or attempts to bring into hatred or contempt, of attempts to excite disaffection towards Her Majesty or the Government established by law in the Provinces and the Capital of the Federation, shall be punished with .........
Explanation 2.‑"Comments expressing disapprobation of the measures of the Government with a view to obtain their alterna tion by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section."
Explanation 3.‑‑Comments expressing disapprobation of the administrative or other action of the Government without excit ing or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section".
In deciding what constitutes sedition as contemplated by the foregoing section well‑established principles have to be borne in mind. The writing or representation has to be read as a whole and in a fair, free and liberal spirit. This approach is all the more important when dealing with, the press which has a duty of its own to discharge. It has to create, mould and educate public opinion on all matters of policy and measures which may affect the well being of the people.
"The liberty of the press" said Sir William Blackstone as far back as 1765," is indeed essential to the nature of a free state. Every free man has an undoubted right to lay what sentiments he pleases before the public. To forbid this is to destroy the free dom of the press."
In Islamic democracy, where 'lima' is the determinant factor, it is essential that masses should know the pros and cons of every measure, good, bad or indifferent. The essence of the crime of sedition consists in the intention with which the language is used and such intention has to be judged primarily by the language used In arriving at its conclusions as to the intention of the accused the court must have regard to the occasion on which and the circum stances in which the writing was published or representation made Criticisms or condemnation of measures taken or policies pursued by the Government with a view to their withdrawal or alternation cannot per se be seditious. It is not every kind of disaffection hatred or contempt which would constitute sedition. To my mind it is that degree of disaffection, hatred or contempt which induces people to refuse to recognize the government at all and leads them to un‑constitutional methods which is essential before a charge of sedition can be held to be established. I may refer in this connection to cases reported in A I R 1949, East Punjab at page 309, 1949 Lahore at page 256 and 1950 Lahore at pages 21 and 243. Otherwise every criticism would come within the mischief of the words disaffection, hatred or contempt because necessarily it creates some sort of feeling against the government.
It was practically conceded by the prosecution that the editorial by itself did not attract the provisions of section 1.24‑A but the cartoon was vehemently attacked as seditious It was argued on behalf of the prosecution that the conflagration shown in the cartoon was ascribed to the government, in as much as the figures shown prominently above the conflagration were mostly Cen tral or Provincial Cabinet Ministers. The charge framed against the accused concedes and assumes that the cartoon is illustrative of the editorial and the cartoon therefore has to be read in the light of the editorial and not in disregard of it. The complainant also admitted in his statement that the cartoon was illustrative of the editorial. The only para in the editorial which can possibly relate to the cartoon is where the writer speaks of the agony of the people. I have already quoted the statement of the complainant that the fire in the cartoon expresses the agony mentioned in para 3 of the editorial. According to the editorial the agony is the result of the dead weight of spirit of provincialism that runs through the nation as a whole and permeates the scheme of constitution proposed The fire in the cartoon either symbolises the agony mentioned above or represents disintegration and disunity envisaged by the comments dated 24th December 1952. In either case the fire shown in the cartoon is apprehended as the result of the acceptance of the Basic Principles Committee Report. All that can there fore be urged is that according to the writer and the cartoonist the adoption of the Basic Principles Committee Report would lead to disintegration and even annihilation of Pakistan.
As far back as 1909 Justice J‑Coleridge in his summing up in The King v. Aldred (1909 22‑CC‑1) observed as follows:‑
"He may seek to show that rebellious insurrection, outrages, assasination and such like are the natural deplorable, inevitable outcome of the policy which he is combating. All that is allowed because it is innocuous."
The cartoon does not go beyond and in my opinion is not at all seditious.
I have therefore no hesitation in accepting the contention that neither the article nor the cartoon can be said to be seditious.
Lastly it has been urged before me on behalf of the applicants that no offence under section 153‑A can be spelled out of the article and cartoon in question. Section 153‑A runs thus.
"Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of Her Majesty's subjects, shall be punished--------"
"Explanation : "It does not amount to an offence within the meaning of this section to point out, without malicious inten tion and with an honest view to their removal, matters which are producing or have a tendency to produce, feelings of enmity or hatred between different classes of Her Majestys subjects".
There is not a single word or sentence in the editorial in ques tion which can be inducive of feelings of enmity or hatred between any different classes of Her Majesty's subjects. What is relied upon by the prosecution is firstly the presence of six Bengali figures in the cartoon and secondly alleged insinuations in the comment dated .22nd and 24th December 1952 that certain proposals are inspired by a desire to bring about dominance of Eastern Wing of Pakistan over Western Wing. All that the presence of six Bengalis could indicate was that they are respon sible for the Basic Principles Committee Report which are calculated to destroy the very existence of Pakistan. This is not the same thing as creating disaffection between different classes. Whatever feelings is excited will be excited against these individuals and not against Bengali citizens of Pakistan. It may be that the principle of parity is attacked by the writer in comments dated 22nd December and 24th December 1952 on the ground that dominance of the Eastern Wing is ensured thereby and the underlying sugges tion may be considered distasteful to Bengali Section of the population but this cannot firstly promote feelings of enmity between different classes and secondly such expression of opinion is entirely covered by the explanation appended to section 153-A. I may add that the comments dated 22nd December and 24th December are not the basis of the charge. They have been tendered by the prosecution only to explain the cartoon and the articles. From this angle the cartoon can only represent the effects of B. P. C. proposals and as such it is entirely far fetched to assert that the cartoon was either intended or in fact could create disaffection between different classes of Her Majesty's subjects.
From the foregoing paras it would appear that in my opinion no offence under section 124‑A or 153‑A is made out against any of the applicants. It was however contended before me by the prosecution that I should not interfere with the charges frame in revision. The reliance was placed by the prosecution on case reported in 34 Criminal Law Journel on page 82, page 956 and that in 41 Criminal Law journal at page 568. The last case is a case of this Court. It is also reported in A I R 1940 Sind at page 65. The applicants drew my attention to a case reported in 30 Criminal Law Journal at page 162 and that reported in A I R 1928 Bombay at page 184. There is no variance in principle enunciated in cases relied upon by the prosecution and by the defence They all lay down that this court has got jurisdiction to interfere but the power of interference should be exercised sparingly and only in cases where no charge could be framed on the face of the record. I am in respectful agreement with this principle. As stated in the very early portion of my judgment a mere perusal of the editorial and the cartoon along with the comments dated 22nd December and 24th December would show that no charge under sections 124A and 153‑A, P. P. C. could be framed against the applicants. I cannot overlook that the editorial and the cartoon were directed against recommendations embodied in the Basic Principles Committee Report Recommenda tions which if accepted would shape the destiny of the nation and determine the future constitution of the State. No apprehension should lurk in the minds of the free citizens of the newly estab lished democracy that criticism of recommendations as to the future constitution can be construed as sedition. It becomes imperative to dispel such misgivings, if any, at the earliest and put an end to proceedings that were not justified at all. In view of the standing order of C J of this Court made under rule 10 sub‑rule 7 1 can instead of making a reference to the High Court may treat this application as an application under section 439 Cr. P. C. and dispose of it myself.
I, therefore, accept the revision quash the charge and dis charge the accused. The accused applicants are on bail.
They need not surrender to their bails.
I may note that Mr. Manzoor Hussain appearing on behalf of, the Crown did all that one could in the circumstances of the case to support the prosecution version.
A. H. Revision accepted.
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