P BALASUBRAMANIA MUDALIAR Vs. CRAJAGOPALACHARIAR

JUDGEMENT

(1.) The two appellants, the editor and printer of the Sunday Observer, a weekly organ of the Justice party, have been convicted by the Chief Presidency Magistrate, Madras, for having made defamatory averments against the complainant Mr. C. Rajagopalachariar, an ex-Congress Prime Minister of this province, in the editorial published in the issue of that paper of 4 October 1942 and sentenced to pay fines of Rs. 1000 and Rs. 500 respectively. Their plea was that the averments in question were not defamatory, that even if they were, as it was expressly stated to be only a matter of opinion made in good faith and for the public good, they were protected by exceptions 3 and 9 to Section 499, Penal Code. The Chief Presidency Magistrate found on both the pleas against the appellants and convicted them. The only two points hence that arise for consideration in this appeal are (1) whether the statement in question is defamatory and (a) whether it was made in good faith and for the public good and consequently the appellants were not guilty of any offence. The offending passage occurred in the article published under the caption "Mr. Gandhi, the fountain source of evil," and runs thus: It is clear that he "(Mr. Gandhi)" is not merely the "fountain source" but the engineering source of all acts of sabotage. It is all part of a plan. Mr. C. Rajagopalachariar and one or two other Congress leaders are, we strongly believe, aware of this plan, and are remaining out with a view perhaps to guiding it in an indirect manner. C. . must have arranged with Mr. Gandhi to fall out on the Pakistan issue and be expelled from the Congress on that pretext, so that some leaders may stand out and be available for work outside. The long and short of it all is that Mr. Gandhi organised this campaign of violence - his speeches and "C.R. s" speeches as to a short and swift struggle on big scale leave no doubt whatever - and wants that campaign to go on. Before considering how far these statements can be said to be defamatory, we have to bear in mind certain facts proved by the evidence in the case and which are not disputed. Mr. C. Rajagopalachariar, a prominent leading member of the Congress was a member of the All India Congress Committee, as also of the Working Committee for a number of years except during certain short periods. He and his fellow ministers who were all of the Congress party, resigned in 1939 on the war issue. In April 1942 he introduced a resolution at a meeting of the Parliamentary Legislative Party at Madras recommending that the demand of the Muslim League for Pakistan should be conceded. Prior to that the Indian National Congress was against the granting of such a demand. As a matter of fact Mr. Rajagopalachariar himself in some of his speeches made earlier opposed the demand of the Muslims for dividing the country in the manner in which the Pakistan scheme would (vide enclosures 8, 9 and 10 attached to accused l's statement dated 20 April 1943.) The resolution of Mr. C. Rajagopalachariar in April 1942 with respect to the demand of Pakistan by the Muslims was passed in the meeting of the Madras Parliamentary Legislative Party but the All India Congress organisation was against it and a similar resolution there was thrown out. When he started propaganda in favour of Pakistan, objection was taken to the same on the ground that he could not remain in the Congress and do propaganda against the decision of the All India Congress Committee, with the result that Mr. Rajagopalachariar resigned even his primary membership in the Congress. The goal of the All India Congress was the attainment of freedom by India free from any kind of dependency on Britain. There have been various resolutions passed by the Congress bodies at various times with regard to the method to be adopted for the attainment of that goal. On 14 July 1942 the Working Committee of the All India Congress Committee passed a resolution recommending the starting of a mass struggle on non-violent lines on the widest possible scale so that the country might utilize all the non-violent strength it had gathered during the past 20 years under the leadership of Mr Gandhi. This came up for consideration before the All India Congress Committee on 7 August, 1942 and the same was passed. On the next day, the 8th August, the Congress leaders in the various provinces were arrested and then followed all over the country various acts of sabotage, such as the cutting of telegraph wires, the uprooting of railway lines, setting fire to police stations, railway stations, Government buildings, post offices etc. On 13 August Mr. Rajagopalachariar published a statement condemning the acts of hooliganism but stating that all delusions in the minds of people that this programme of hooliganism was what the official Congress wanted done on its behalf, should be removed. He also stated that he had disagreed from Gandhiji's plan in the then crisis, even strove to deflect him from it and that he was not seeking to argue and justifying it himself.

(2.) On 15 September 1942, the Honourable Sir Reginald Maxwell, the Home Member, in the course of a speech in the Central Legislative Assembly moving the resolution that the situation in India be taken into consideration, made observations to indicate that it was clear that the acts of sabotage were the result of previous organization, and that it was impossible to believe that the Congress leaders were ignorant of its existence or that their plan did not contemplate that it would be brought into play when they launched their mass movement. In October 1942, Dr. Arun-dale, the President of the Theosophical Society, published an article arraigning Mr. Gandhi as the fountain source of so much of the evil that permeated India then. It was in the course of a comment on that article of Dr. Arundale that the statements in question were made. The gist of the article was that Mr. Gandhi was not merely the "fountain source" but the engineering source of all acts of sabotage that were committed subsequent to the arrest of the Congress leaders on 8 August 1942. It was further stated that the editor strongly believed that Rajagopalaehariar and one or two other Congress leaders were aware of the plan and were remaining out with a view perhaps to guiding it in an indirect manner and that "C. E." must have arranged with Mr. Gandhi to fall out on the Pakistan issue and be expelled from the Congress on that pretext so that some of the leaders might stand out and work from outside. The article wound up with the following observation: The long and short of it all is that Mr. Gandhi organised this campaign of violence-his speeches and "C.R. s" speeches as to short and swift struggle on a big scale, leave no doubt whatever,-and wants that campaign to go on. The article was mainly an attack on Mr. Gandhi and the reference to Mr. Rajagopalachariar was only incidental the reference being that according to the plan of the Congress Mr. Rajagopalachari and others should stand outside under some pretext so that they might be available to guide the plan indirectly at a later stage. On the face of it, it is clearly defamatory. It will certainly lower the reputation of Mr. Rajagopalaehariar in the eyes of the general public. It not only charged him with complicity in criminal acts, but also attributed to him hypocritical public conduct. Mr. Rajagopalachari denied that his resignation from the Congress was a, make-believe one or that he resigned with a view to guide the movement subsequently. The accused pleaded in the lower Court that the word "it" in the passage "with a view perhaps to guiding it in an indirect manner" stood for the goal of the Congress and not any plan of which sabotage was a part and that consequently the observations could not be understood in the sense that Mr. Rajagopalachariar was asked to stand out with a view to guiding in an indirect manner the plan of the Congress which included sabotage. The Chief Presidency Magistrate has rightly rejected this. The neuter pronoun "it" must stand for the neuter noun occurring before it and that neuter noun is "plan." It is also stated in the second sentence in the offending passage that the acts of sabotage were all part of a plan. The word "plan" must therefore indicate the method of attaining and not the goal itself. The passage has hence to be understood in the sense in which it has been understood by the Chief Presidency Magistrate and this is how he has interpreted its meaning: Mr. Gandhi is the engineering source of all acts of sabotage. These acts of sabotage are part of a plan. The complainant was aware of this plan. Sometime before the plan was put into operation the complainant pretended to quarrel with Mr. Gandhi and severed his official connection with it so that he might not be arrested and might be available to guide the plan or the campaign in an indirect fashion from outside. I would omit the words "or the campaign" to be accurate. If the acts of sabotage were part of a plan and Mr. Rajagopalachariar was aware of it and being aware of it, made a show of resigning from the Congress so that he might ultimately aid the plan, it would clearly mean that he had complicity in the crime, viz., in the commission of the acts of sabotage as a result of the plan. Further, it accused him as a politician of hypocritical conduct by pretending to have resigned from the Congress for the purpose of indirectly and secretly guiding it in its plan part of which was the commission of criminal acts. I have therefore no hesitation in finding that the passage is defamatory and would bring down the reputation of a politician of the standing of Mr. Rajagopalachariar who once held the high office of the Prime Minister of this Province. The next question for consideration is whether the accused are protected by the provisions of exceptions 3 and 9 of Section 499, Indian Penal Code. The appellants case was that the statements were made for pub-lie good by accused 1 as the editor of a journal only as statements of opinion and not as categorical statements of fact, and that they were made in good faith after the exercise of due care and caution. That it may have been made for the good of the public was, I should think rightly, accepted by the Chief Presidency Magistrate. This is what he stated in his judgment, The complainant being a prominent public man it may be assumed that any comment on his character as it appears from his public conduct would be for the public good. The only pre-requisite is that the comment should be made in good faith. Or rather the pre-requisite for the availability of the plea of good faith is that the publication must have been made for public good as in this case or for the protection of the interest of the person making it or of some other. Therefore the only other question for consideration is whether the imputations made against the complainant were made in good faith. They were not made as categorical statements of fact, but only as the opinion of the editor. The words "we strongly believe" and the word "perhaps" in the passage in question clearly negative the contention that they were made as positive averments of facts. That the imputations were incorrect is proved beyond doubt. Exhibit H is a letter dated 18 July, 1942 written by Mr. Rajagopalachariar and three other Congress leaders, Mr. Santanam, Mr. S. Ramanathan and Dr. Rajan. It was written after the passing of the resolution by Congress Working Committee at Wardha on 14 July, and before it was approved by the All India Congress Committee. It warned Mr. Gandhi of the far-reaching consequences of the adoption of the resolution pointed out that only chaos would follow and stressed that it was certain that the party to gain immediately by the movement would be Japan. It was further pointed out that when the leaders were removed, their guidance would not be available and that the movement would be taken advantage of by the enemy and be converted into a fifth column activity on his behalf. They added that their conviction was strong enough to make it their duty publicly to oppose the proposal. The letter ended by entreating Mr. Gandhi to desist from taking the step. This letter was written three months after the complainant left the Congress and he was one of the four who dissuaded Mr. Gandhi from starting the movement. The imputation therefore that the complainant's resignation from the Congress on the Pakistan issue was a make-believe one with a view to enable him to remain outside the Congress and guide the plan with regard to this mass struggle must be found to be false and baseless. That such a letter was sent was spoken to by Mr. Rajagopalachariar in his evidence in the box, though it was suggested for the accused during the course of the trial in the Magistrate's Court that the letter was not genuine. When I drew the attention of appellant 1 during the course of his argument to the circumstances which went to indicate that it must have been a genuine letter he very frankly stated that the accused had to take that attitude of questioning the genuineness of that document before the Magistrate on account of the manner in, and the stage of the proceedings in which it was sought to be filed in Court, and that he was not disputing the genuineness of this document in this Court and admitted it to be a genuine one.

(3.) But then the fact that the imputations were baseless would not in any way affect the other question, namely, whether accused 1 bona fide believed in the truth of the imputations made in that statement and that is the only question that arises for consideration in this appeal. If accused 1 bona fide believed (1) that the acts of sabotage were part of a plan of the Congress (2) that Mr. Rajagopalachariar was aware of that plan (3) and that his standing out of the Congress was only a pretext but that he was really supporting the Congress by so standing out with a view to guiding that plan, the appellants could not be guilty of the offences with which they are charged. Their case would come under Excep. 9 to Section 499, Indian Penal Code. The Chief Presidency Magistrate has not considered and discussed the evidence let in to show that accused 1 bona fide believed in the truth of what was alleged in those three averments of his. The arguments on the first averment were brushed aside as irrelevant, the evidence on the second was ignored while the case relating to the third was considered on an incorrect basis and that too without any discussion of the evidence. In para. 18 of his judgment, with regard to the arguments addressed for the accused on the question as to whether accused l in good faith believed that the Congress was responsible for the acts of violence and sabotage, this is what he stated, For the purpose of this case, however, it is sufficient to say that in the absence of any evidence to establish the further position that accused 1 had reasonable grounds to believe that the complainant was aware of the plans of the people (whoever they were) who organised these illegal activities or encouraged or guided them; this point is wholly irrelevant. But then he did not consider the evidence let in to show that the editor of the Sunday Observer had reasonable basis for believing in good faith that Mr. Rajagopalachariar was aware of that plan and give any finding on it. With regard to the last point as to whether he bona fide believed that the resignation of Mr. Rajagopalachariar from the Congress was only a pretext with a view to help the plan, all that the Magistrate states in his judgment is contained in the following four sentences: But having examined these speeches and statements of the complainant carefully, I am unable to find in them any reasonable basis for the two charges made against him , viz., complicity in acts of violence or insincere or hypocritical conduct in respect of his change of view on the "Pakistan" issue; in other words, I am unable to see any sign of good faith on the part of the accused. This brings us back in effect to the question already discussed, viz., the proper meaning to be attached to the first passage. The accused's comprehensive and painstaking scrutiny of the complainant's speeches was undertaken on the basis that all that was attributed to Mr. Rajagopalachariar was knowledge of the ultimate aim of the Congress, viz., the achievement of Indian Independence and a desire to assist it when it got into difficulties. If that were the real meaning of the passage complained of, obviously no charge of defamation could be sustained; in many public speeches and also in his evidence in Court the complainant has made no secret of his political opinions. But as I have already said, the real meaning of these passages and the sense in which an ordinary reader would have understood them is entirely different. The Magistrate was not justified in having proceeded to consider this plea of the accused on the basis of the plea with regard to the meaning sought to be given by them for the offending passage in the article. It is open to the accused to raise different and inconsistent pleas. Their plea in this case was that the passage was not defamatory because it bore a different significance or meaning from the one attributed to it by the complainant, and the other plea was that if it was defamatory be. cause it bore the meaning given to it by the prosecution, it was an honest expression of opinion made in good faith and for the good of the public. The Magistrate, after finding that the accused's case about the meaning of the passage was not correct, was not justified in taking that plea of the accused (on the meaning of the passage) as correct and deciding the case on this plea on that basis.