DHIRENDRA NATH SEN Vs. EMPEROR

JUDGEMENT

(1.) Appellants, the editor, and the printer and publisher of a paper called the Hindusthan Standard, have been convicted of sedition, in respect of an article published in the issue of that paper dated 27 November last. The sole question for decision in this appeal is whether the article falls within the mischief of Section 124-A of the Indian Penal Code. In form, it is an onslaught upon a certain Education Bill, and the contention on behalf of the prosecution, which has been accepted by the Court below, is that it excited hatred, contempt and disaffection towards the Ministry in Bengal and was therefore seditious. An article is in law, seditious when it brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in British India. Government, in this connexion, denotes the person or persons authorized by law to administer executive Government in any part of British India. The question before us then is whether the present article can fairly be construed as an attempt, successful or not, to bring into hatred or contempt, or to excite disaffection towards persons authorized by law to administer executive Government. Further, as the attack is upon the Ministry, that question involves the point whether the Ministry are persons-authorized by law to administer executive Government. If they are not, an attempt to excite hatred, contempt or disaffection towards them would not be an offence under Section 124. A of the Code.

(2.) Under Section 49, Government of India Act, the executive authority of a Province (which I take to mean the same thing as legal authority to administer executive Government), shall be exercised by the Governor either directly or through officers subordinate to him. All such action of the Government shall, under Section 59, be expressed to be taken in the name of the Governor. The rule of the Council of Ministers is defined in Section 50 as being "to aid and advise the Governor in the exer-cise of his functions," except in so far as he is given discretionary powers under the Act. It may further be taken that the Governor is bound to follow the advice of his ministers in certain cases, that is to say in cases other than those in which he is required by the Act to exercise his own discretion, or where in his opinion the advice is inconsistent with the special responsibilities committed to him under the Act. On the other hand, the Governor chooses his ministers, who hold office during his pleasure. He is empowered to allocate among them the business of the Government, and to regulate the transmission to himself of information, or of matters under consideration by a minister which may involve any special responsibility of the Governor. There is no specific provision in the Government of India Act vesting the ministry with executive functions. On the other hand such function a "shall" in the words of the Act, "be exercised by the Governor either directly or through officers subordinate to him." The position seems to be that unless the Ministry can be held to consist of officers, subordinate to the Governor within the meaning of the Act, it cannot exercise executive functions. I entertain the gravest doubt whether any such description is applicable to a ministry chosen from the elected representatives of the people under a democratic constitution. There is no difficulty in the position that ministers are members of the Government. There is no difficulty in the position that they are servants of the Crown. It does however seem to me to be difficult to maintain the position that a ministry, chosen from the elected representatives of the people, and empowered, within, prescribed limits, to dictate the policy of the executive Government, is in any real sense a body of officers subordinate to the Governor.

(3.) On the merits of this appeal, it is necessary to examine the article in detail. It is, as I have said, an attack on an Education Bill. What appears from the evidence is that a draft bill, the Bengal Secondary Education Bill, had been sent for consideration in certain interested quarters. Its provisions, thus made public, inspired the article. There is no evidence before us as to the nature of the bill, except what can be derived from the article itself, and we are informed from the Bar that it has been dropped. The article, which is headed "Where is Bengal today?" begins rhetorically "Is Bengal dead? Has she been effaced from the map of Hindusthan?" It then alludes to the bravery of the men and women who in the past made rulers or administrators tremble and totter, and says that the time has come for another fight to the death. The Ministry in Bengal have declared war on the entire Province. They have attacked the traditions and culture of the past, derived from an independent intellectual life.