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Criminal Original Petition No. 3 of 1949, decided on 10th June 1949, under section 23 of the Indian Press (Emergency Powers) Act, 1931.

(a) Prss (Emergency Powers) Act (XXIII of 1931), S. 7 (3) Provincial Government's notice citing whole article of newspaper, only small portion of which specified as being offensive at the hearing‑‑Notice, held, not vitiated.

The offensiveness of the article is determined solely, for the pur poses of action under subsection (3) of section 7 by the eye of Provincial Government which beholds it. Citation, in the Provincial Government's notice, of whole articles of a newspaper, only some portions of which are specified at the hearing of the petition as being offensive in the relevant sense, does not vitiate the notice in the eye of the law.

(b) Press (Emergency Powers) Act (XXIII of 1931), S. 4 (1) (d) ‑Use of the term "lawless law" with reference to Punjab Public Safety Act does not bring Government into contempt‑"Contempt" and "Hatred" explained‑Whether mere political propaganda comes within mischief of S. 4 (1) (d).

To describe the Public Safety Act as "a lawless law" does not bring the Government into contempt. The expression "lawless law" in political literature of this type is applied usually to unpopular measures which act in restraint of the ordinary liberties of the people, and confer discretion upon authorities, at will, and, acting purely upon their own estimate of the necessities, to interfere with individual and popular liberties.

To criticise a law is not the same thing as bringing into hatred or contempt the King or the Government etc.

Mere dislike or disapproval is not sufficient to constitute hatred or contempt is the act of despising or viewing something as mean, or worthless. Hatred is a sustained feeling of bitter aversion generally combined with a desire to injure, destroy or get rid of its object. These are strong, feelings, and strong words are required in order to arouse them.

Where plainly the burden of the article is political propaganda designed to appeal to the labouring class, which is advised not to hope for any benefits from the new section 92‑A, which is an instrument of dictatorship, but to strive to set up a democratic front and take power into their own hands, it is impossible to see in the article anything which can bring it within the meaning of section 4 (1) (d) of the Press Act.

Mahmud Ali and Muhammad Siddiq for Petitioner.

Shabir Ahmad, Advocate‑General and Muhammad Sharif, Assistant to the Advocate‑General for Respondent.

Order

‑This is a petition under section 23 of the Indian Press (Emergency Powers) Act, 1931, by M. Abdullah Malik, publisher of the Naya Zamana, a daily newspaper of Lahore, and challenges the validity of an order of the Provincial Government, dated the 2nd February 1949, whereby the publisher of the said newspaper, who had apparently not been asked to deposit any security at the time of original registration of the newspaper, was required to deposit security to the amount of Rs. 3,000. The order was made under the provisions of subsection (3) of section 7 of the Press Act, which requires that in the relevant circumstances when a newspaper, "contains any words, signs or visible representations of the nature described in section 4, subsection (1), the Provincial Government may, by notice in writing to the publisher of such newspaper, stating or describing such words, signs or visible representations, require the publisher to deposit* * security * * * * * * * * *"

In compliance with the requirement that the words complained of should be stated or described, the notice by the Provincial Government contained the following :‑

"It appears to the Governor of West Punjab that the newspaper 'Maya Zamana' * contains in articles headed (1) Patel Ki Taqleed, (2) Karachi Ka Roznamcha and (3) Dafa 92 Alaf Ki Talwar published in the issues of the paper, dated (1) and (2) 30th August 1948 and (3) 9th September 1948, respectively words of the nature described in clause (d), subsection (1) of section 4 of the Indian Press (Emergency Powers) Act XXIII of 1931, translations of which are annexed hereto".

The translations appear in an appendix attached to the original notice which has been placed on the file. This appendix is in three parts marked B/1, B/2 and B/3. Part B/1 contains a complete translation of the article, entitled "Patet Ki Taqleed" i.e. in the footsteps of Patel, which covers two sheets of typed foolscap paper. Part B/2 contains con siderable portions of the article entitled "Karachi Diary" which in print covers a little short of four pages of foolscap ; the typed portions in part B/2 cover about three pages of foolscap Part B/3 contains a transla tion of the whole article entitled "Sword of section 92‑A" which covers two and a half pages of foolscap in type. Before proceeding to consider the nature of the contents of these parts it will be convenient to state that section 4 (1) (d) of the Press Act is designed to restrain the publica tion of matter which tends directly or indirectly "to bring into hatred or contempt His Majesty or the Government established by law in British India or the administration of justice in British India or any class or section of His Majesty's subjects in British India, or to excite disaffec tion towards His Majesty or the said Government".

At the hearing of the petition, the learned Advocate‑General appeared on behalf of the Provincial Government and attempted to justify the section taken by the Government against the Naya Zamana Newspaper: As it appeared to us on a perusal of the matter contained in the appendix mentioned above that very little if anything of that matter could be regarded as falling within the compass of section 4 (a) (d) of the Press Act, we invited the learned Advocate‑General to assist us by marking out for our benefit the passages in each of the thriee articles which he would contend had a tendency of any of the kinds specified in the aforesaid clause. The learned Advocate‑General accordingly marked out three passages in the first article and one very brief passage in the third article and as to the second article, he frankly admitted that there was nothing in it which could be regarded as having any of the tendencies specified in section 4 (1) (d) of the Press Act. The learned Counsel for the petitioner thereupon raised the plea that the notice issued by the Government to the news paper was bad in law as it failed to specify, as was required by subsection (3) of section 7 of the Act, the words etc. to which exception had been taken by the Government. He pointed out that the notice did not specify the passages on which the learned Advocate General proposed to rely at the hearing and contended that no reason able person could for a moment suppose or misguide himself into the belief that any part of the remaining matter in these articles was in any way offensive within the meaning of section 4 (1) (d) of the Press Act. The assumption underlying this argument appears to us to be that sub section (3) of section 7 of the Act empowers the Provincial Govern ment to take the prescribed action only in regard to such matter as could reasonably be regarded as falling within the mischief of section 4 ( L) (d) of the Act. When regard is had to the empowering words in sub section (3) of section 7, it will be found that this assumption is unfounded, for the subsection enables the prescribed action to be taken "whenever it appears to the Provincial Government that a newspaper * * contains any words* * * * of the nature described in section 4 of subsection (1)". The statute does not require that the words should be of a nature reasonably belied by the Provincial Government to fall within the description in section 4, subsection (1) of the Act ; It is sufficient that those words should, at the time when the action in ques tion is taken, appear to the Provincial Government to possess that character. We are conscious that this interpretation might be construed as conveying such an unfettered discretion as would include even a capricious or arbitrary judgment, but we cannot see any words of limi tation which would justify the imposition of any restraint upon the view which the Provincial Government might, at a given time, take of a given publication. Figuratively put the offensiveness of the article would be determined solely, for the purpose of action under sub section (3) of section 7 by the eye of the Provincial Government which beholds it, but this is not to say that there is no external restraint provided by the law against the capricious exercise of the power conferred by this subsection. By section 23 power is given to the publisher of the newspaper against which action has been taken under the aforesaid subsection to move the High Court to set aside the order and under section 25, if a Special Bench of the High Court appointed to hear the application is of the opinion, that the publication is not of a nature falling within the scope of section 4, subsection (1) of the Act, the Special Bench is required to set aside re : the Provincial Government's order.

For this reason, it appears to us that the argument put forward by Mr. Mahmud Ali for the petitioner that by citation in their notice of whole articles, only small portions of which are specified at the hearing of the petition as being offensive in the relevant sense, the notice is vitiated in the eye of law cannot be sustained. It may very well be that at the time when the notice was issued, every word which is reproduced in Appendix B, appeared to the Provincial Government to be offensive in that sense. All that subsection (3) of section 7 required was that the offending words should be stated or described in the notice ; that requirement has been complied with in the shape of Appendix B.

We may now proceed to consider the substance of the articles which is reproduced in Appendix B. To save space, we propose not to reproduce the entire articles in this judgment but to attempt a paraphrase citing, however, in full those passages which the learned Advocate General regarded as being of a nature falling within section 4 (1) (d) of the Press Act. The first article "Patel ki Taqleed" starts with a reference to two editorials, dated the 18th and 19th August 1948, which had appeared in a Lahore newspaper known as the Nawa‑i‑Waqt, under the title "Subversive Activities" and "The Dangerous Right of Civil Liberty". It was said that these emphasized that the people of the Province had been given too much liberty and the Provincial Government was advised to adopt the methods of Government of India and like Mr. Patel to restrict freedom of speech and the Press and strictly to control the news papers and further to imitate Khan Abdul Qayyum Khan (the reference we are told is to the Premier of the North‑West Frontier Province) by imprisoning all the intelligentia who criticise the Government in hotels, clubs, etc. etc. The writer then goes on to say that the opinion of the Nawa‑i‑Waqt appears to be that the duty of every loyal Pakistani is to submit obediently to every policy and governmental act of the Qauid‑i‑Azam and the Ministry and the Government officers and even perhaps to remain loyal to those newspapers which are loyal to the Government. The conception of loyalty described by the Nawa‑i‑Waqt would even prevent a husband from expressing an opinion to his wife in utter solitude. These articles exhibit "the undemocratic, dictatorial and fascist mentality of the Nawa‑i‑Waqt" which was indifferent to the existing unrest and dissatisfaction and the need of inquiring into its causes. Passage A‑"Instead, the Nawa‑i‑Waqt is in favour of gagging the people and subjecting them to physical tortures, and that only for the reason that the existing capitalistic and feudal system, which is the root cause of all the evils might be saved somehow or other from the democratic flood of the masses".

The writer warns the Nawa‑i‑Waqt to learn from the fate of Hitler and Mussolini that suppression of the people by force and violence creates the greatest danger for the capitalists themselves. He goes on to remark that the Nawa‑i‑Waqt has tried to give the impression that civil liberty is enjoyed in West Punjab, but :‑

Passage B‑''the truth is that highhandedness of the police, the officers and the Punjab Safety Act has even at this time deprived the democratic masses of their fundamental democratic rights. For instance, the labourers' right to go on strike is a democratic right which has been admitted even in the Punjab Muslim League manifesto. But, is it not a fact to‑day that when the labourers being hard‑pressed by the daily increasing dearness express even an intention to go on strike for getting their wages increased, their leaders are arrested at once and the zealous workers of the Union subjected to hardships of various sorts Have not the workers of the Pakistan Communist Party, Labour Unions and Kisan Committees, the Progressive Muslim Leaguers and the Ahrars, thrust been into jails to‑day, under lawless laws such as the Public Safety Act "

"All this is known to the Nawa‑i‑Waqt, yet it demands that this being not enough, there should be more oppression".

The article concludes by saying that feudal rulers experience difficulty in dealing with the people and when the latter become vocal in expressing discontent on account of their troubles, panic overtakes the rulers and they resort to force to suppress the discontent. The capitalists and jagirdars of the Punjab have kept some hounds to attack the democratic rights of the people of Pakistan and whenever their masters are preparing to launch a new attack on democracy, these hounds begin to bark.

Taking this article as a whole, it is in the main's strong attack upon certain writings which had appeared in the Nawa‑i‑Waqt. It is indirectly hinted that the Nawa‑i‑Waqt is an agent or organ of the powers that be, and that its advocacy of stern measures of repression is probably a fore runner of oppressive governmental measures to come. It criticises the Nawa‑i‑Waqt for setting up an exaggerated standard of loyalty, involving subservience to Government and persons in power and even to news papers which are backing up the Government, and charges the Nawa‑i -Waqt with indifference towards the real causes of the prevailing discon tent, and with advocating its suppression by the use of force, suggesting that this view is inspired by the newspaper's capitalistic outlook. So far there is nothing which is at all directed towards any person or class or section of persons or institution which section 4 (1) (d) of the Press Act is designed to protect against the caluminous writing. The article, however, then proceeds to state that the people are being deprived of their democratic rights by the highhandedness of the police, the officers of Government and the Punjab Safety Act which is described as, a "lawless law". By way of instances, it is mentioned that any expression of intention by labourers to go on strike leads to immediate arrest of their leaders and helpers, and that workers of other progressive bodies have been thrust into jail. The learned Advocate‑General considered that to describe the Public Safety Act as "a lawless law" brought the Govern ment into contempt. We do not think so. The expression "lawless law" in political literature of this type is applied usually to unpopular measures which act in restraint of the ordinary liberties of the people, and confer discretion upon authorities, at will, and, acting purely upon their own estimate of the necessities, to interfere with individual and popular liberties. It cannot be denied that a number of the provisions contained in the Public Safety Act are of a kind falling within this description. The ordinary criticism levelled against the employment of such statutes is that they convert the whim or caprice of the authority em powered into the law of the land, and it is hard to deny that to a certain extent, and having regard in particular to the point of view of those adversely affected by action taken under such statute, this statement of the effect of such a law is not entirely a misrepre sentation. In any case, to criticise a law is not the same thing as bringing into hatred or contempt the King or the Government etc. The other statement in this passage which requires examination is that which imputes highhandedness to the police, the officers and the Public Safety Act. Assuming without holding to that effect that "the police" and "the officers" constitute a class or section of His Majesty's subjects for the purposes of section 4 (1) (d), does this state ment, appearing in the context of the article in question, tend directly or indirectly to bring the police or the officers into hatred or contempt Mere dislike or disapproval is not sufficient to constitute hatred or contempt. Contempt is the act of despising or viewing something as mean, vile or worthless. Hatred is a sustained feeling of bitter aversion, generally combined with a desire to injure, destroy or get rid of its object. These are strong feelings, and strong words are required in order to arouse them. The words used with reference to "the police" and "the officers" in this article do not in our opinion possess anything approaching the requisite character for producing such violent emotional reactions. It is a part of the every day routine for political speakers and writers to charge officials and particularly the police with "highhandedness". The charge has been repeated so long and now so much ad nauseam that the words in which it is couched no longer possess their literal meanings and the practised hearer readily discounts those meanings in appreciating that the speaker or writer means.

Lastly, in passage B it is said that the Nawa‑i‑Waqat demands more oppression. It is argued for the Crown that there is a statement by implication that a state of oppression already exists and this is of course correct, but as to the details of that state of oppression, they are no other than those furnished in the earlier portion of the same passage, which are found on our examination not to satisfy the conditions of section 4 (1) (d). Accordingly we are satisfied that the first article contains nothing which can be regarded as offensive in the sense relevant to these proceedings.

The article entitled "Karachi Diary" is admitted by the Advocate- General to contain nothing of this character. It appears to us remark able that to the Provincial Government this article should have appeared to possess the quality necessary to attract the provisions of section 4 (1) (d) of the Press Act. It is desirable that we should state, very briefly, the contents of this article specified in Appendix B‑2. It consists of disjointed notes, and starts with a discussion of housing condition in Karachi. It declares that the bulk of the houses vacated by Hindu pilgrims from Karachi have been occupied by capitalist Seths from Bombay. Kathiawar, Delhi and the Punjab, by high‑ranking Government officers and by Muslim Jagirdars of Sind. On the other hand, low paid Government employees of whom there are a great number in Karachi, are put up in barracks, tents, thatched hut, school buildings, etc., where they suffer in the monsoon from the rains and in the hot weather from the heat, and this, coupled with low salaries, is leading to discontent so that recently an employee beat his offcer, and again when certain roofs began to leak badly, the employees raided a Government tent store and carried away many tents for their use. There is then a reference to sums spent on furnishing the houses of Ministers, and it is remarked that Ministers' wives insist on having every fitment in their own house which they see in any other Minister's house. Mention is made of "new Pakistan currency notes", whose printing it is said has been arranged by the Finance Ministry through the firm of Dela Rue. It is said that the printing was defective and the colour is not fast. After that there is a reference to the views of Maulana Shabbir Ahmad Usmani, Maulana Maudoodi and the Pir of Manki Sharif regarding the enforcement of Islamic Shariat ; remarks are made concerning the activities of prominent leaders of the Muslim League in this connection. It is mentioned also that a League paper entitled the "Jang" had started to write against "the Shariat Wala Maulvies" Then it is said that the Quaid‑i‑Azam had asked the Maulvis who demanded an Islamic Con stitution for Pakistan to form a Committee and prepare a draft, but the Maulvis had done nothing in this connection. There was also difference of opinion among the Maulvis regarding the Islamic view of capitalism and Jagirdari. In the entire article there is not a word against the King or the Government established by law or the administration of justice any recognisable "class or section of His Majesty's subjects".

The third article purports to be a statement of the effects of the new section 92‑A of the Constitution Act. As is well‑known, this provision replaces section 93 of the old Act, under which the Constitution of a Province could be superseded so that for the time being representative Government was held in obeyance and the executive Government was entrusted exclusively to the Governor. The article commences with mention of section 93 and a brief account of its provisions, and states that a provision similar to section 92‑A was not found "even in the Government of India Act preceding it". It is then observed that Governor's rule was obnoxious to all democratic elements in India and Pakistan, and such a rule had always been stigmatized as "unconstitu tional, undemocratic and cruel despotism".

"In the opinion of our present rulers the British dictatorship was bad but their own dictatorship is not so. The undemocratic politics of the British were condemnable but their own lawlessness is a blessing and bounty upon the people". Then follows a statement which can hardly be called complete, of the provisions of section 92‑A, and it is said that this hangs like a sword not only over the present Ministry (the article was written before section 92‑A of the Constitution Act had been enforced in the West Punjab but also over the entire democratic system. The evils of the existing system from the point of view of the masses are then narrated, and it is said that the Ministry by using the Public Safety Act showed determination to crush the communist party of labourers, and all freedom loving institutions. The wish is expressed that the Ministry may end Foon but it is said that the Governer's rule which would follow would be no cure for the a ictions of the common people who would be still under the rule of "big officers" and "big men" and ultimately under "Karachi dictatorship". What the common people require, namely, cheap food and houses, work for all and a free atmosphere in which to live, could not be achieved until political power came into their hands, and the common people were warned that dictatorship (by which was presumably meant Government under section 92‑A) would only mean repression by brute force and continua tion by the rich ruling class of their jagirdars, their capitalistic profiteering, their black‑marketing and their bribe‑taking. Therefore, every honest citizen of Pakistan was advised to oppose dictatorship at every step and to set up a united democratic front to defeat the policies of "the rich rulers".

The burden of the article is plain. It is political propaganda designed to appeal to the labouring class, which is advised not to hope for any benefits from the new section 92‑A, which is an instrument of dictatorship, but to strive to set up a democratic front and take power into their own hands. In the course of this argument which commences with an attempt to analyse section 92‑A, the remark is made that "our present rulers ", namely, those who are responsible for enacting section 92‑A, always condemned its predecessor, section 93, as a weapon of despotism employed by the British, but they had not hesitated to introduce such a measure themselves after the British had been replaced, suggesting that in their view autocratic Government by the British was to be condemned, but arbitrary Government by themselves was "a blessing and bounty". This latter passage is objected to by the learned Advocate ;ei1eral, but we find it impossible to see in it anything which can bring it within the meaning of section 4 (1) (d) of the Press Act. The criticism is levelled at the legislators who had enacted .section 92‑A, not against the King or the Government established by law or the administra tion of justice or any class or section of His Majesty's subjects. Moreover, it is criticism expressly based on reason, and not at all of the kind calculated to arouse those strongly hostile feelings which alone can be described as hatred or contempt.

We are thus satisfied that there is nothing in anyone of the three articles cited in the notice issued by the Provincial Government which falls within the compass of section 4 (1) (d) of the Press Act. We have also satisfied ourselves that noting in these articles falls within the mischief of any other clause in subsection (1) of section 4, Press Act. Therefore, we are of the opinion that the order of the Provincial Government in this case must be set aside and we hereby make an order accordingly. Further, as we can see no justification whatsoever for the action taken in this case by the Provincial Government, was consider it right that the costs of the petitioner should be borne by the Government and we direct accordingly.

A. H. Petition accepted.

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