Krishna Sharma vs State

The Appellant has preferred this appeal against the order of the Sessions Judge, Central Saurashtra Division, passed by him in an inquiry instituted on a complaint under Sections 4 and 7 of the Press (Objectionable Matter) Act of 1951 made by the District Magistrate, Madhya Saurashtra District, Rajkot. The inquiry was held with the aid of a jury at the Appellant''s request...

The Appellant is the keeper of the Arya Printing Press situated on the Gondal Road in the City of Rajkot and is also the editor, printer and publisher of the newspaper "Virat Bharat". The complaint against him was that a certain article appearing in the issue of the "Virat Bharat" of 17-7-52 was an "objectionable matter" within the meaning of the Act in that the writing was grossly indecent, scurrilous and obscene and was likely to incite people to commit violence and the complainant prayed that the Appellant be directed to deposit security of Rs. 5,000/- u/s 4 of the Act and Anr. security of like amount u/s 7 of the Act.

The jury was unanimously of the opinion that the article in question complained against was neither grossly indecent nor obscene but was merely scurrilous and that it was not likely to incite any one to an act of violence. They were of the opinion that as the keeper of the Arya Press, he should be given a warning in accordance with the provisions of Section 4 of the Act and as the publisher of the "Virat Bharat" he should be directed to deposit Rs. 1000/- as security u/s 7. The learned Sessions Judge agreeing with the jury gave a warning to the Appellant u/s 4 and directed him to deposit Rs. 1,000/- as security u/s 7 either in cash or in Government security. The Appellant has preferred this appeal against the Sessions Judge''s order.

Mr. V.G. Hathi, who appeared on behalf of the Appellant, argued two points against the learned Sessions Judge''s order. He contended that Section 3 of the Press (Objectionable Matter) Act of 1951 as well as Sections 4 and 7 were unconstitutional and in violation of the Appellant''s fundamental right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. His second objection was against the merits of the order and he urged that the article in question did not contain any scurrilous matter and in any case no action was called for against the Appellant.

We shall take up the constitutional objection first. Article 19(1)(a) is subject to Clause (2) of the same article the relevant portion of which reads as follows:

Nothing in Sub-clause (a) of the Constitution shall.... prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of.... decency or morality....or in relation to defamation.

The impugned provisions of the Act would, therefore, be saved if they can be shown to fall within the ambit of Clause (2) above.

The Press (Objectionable Matter) Act has been enacted to provide against the printing and publication of incitement to crime and other objectionable matter. The term ''objectionable matter'' has been defined by Section 3 and the clause relevant to this appeal is Clause (vi). Section 4 provides that whenever complaint made in writing by the competent authority and inquiry made in the manner provided by the Act a Sessions Judge is satisfied that any press kept within the local limits of his jurisdiction is used for the purpose of printing or publishing any newspaper, news sheet, etc., the Sessions Judge shall direct the keeper of the press to deposit Security. Section 7 provides that whenever upon a complaint made in writing by the competent authority and an inquiry made in the manner prescribed by the Act, the Sessions Judge is satisfied that a newspaper or news sheet published within the local limits of his jurisdiction contains any objectionable matter he shall direct the publisher of the newspaper or news sheet to deposit security.

In both cases it is also necessary that the Sessions Judge should be satisfied that there are sufficient grounds for demanding security. The power to take action under Sections 4 and 7 of the Act depends upon the Sessions Judge coming to the conclusion that the matter complained against is objectionable matter as defined by Section 3 of the Act and we have to see, so far as this appeal is concerned, whether this definition is within the scope of the legislative competence of the Parliament under Clause (2) of Article 19 as enacted in the interest of decency, morality, or in relation to defamation.

The term "objectionable matter" has been defined by Section 3(vi) of the Act as meaning words etc., which are grossly indecent, and are scurrilous or obscene. The definition of objectionable matter as "grossly indecent" is directly within Clause (2) of Article 19 because the State has the power to make law in the interest of decency and no objection can be taken against its constitutionality. The word ''obscene'' appearing in the definition has been described in Law Laxicon in British India by P. Ramanatha Iyer as signifying something

offensive to chastity, decency or delicacy expressing or presenting to the mind or view something that delicacy and purity forbid to be exposed. Indecency is an act against good behaviour and a just delicacy. Obscenity is such indecency as is calculated to promote the violation of the law and the general corruption of morals.

The popular conception of the word ''obscene'' as indicated by the Concise Oxford Dictionary is "indecent, lewd." Therefore the definition of the objectionable matter, so far as it includes the word "obscene", is also within Clause (2) of Article 19 as it necessarily implies an element of indecency or immorality.

The word "scurrilous" has been defined in Oldham''s Dictionary (quoted by the Sessions Judge) as

characterised by coarse invective, using the low and indecent language of the vulgar, containing low indecency or abuse, vulgar, foul, abusive, grossly opprobrious or jocular.

The Concise Oxford Dictionary defines the word scurrilous as "grossly or obscenely abusive (of person or language), given to or expressed with low buffoonery." The word ''scurrilous'' comes from the word "scurra" meaning a buffoon or a jester which is its archaic derivative. According to this comprehensive dictionary meaning words may be scurrilous without being indecent, immoral or defamatory, in the sense that they may be coarsely jocular or expressed in opprobrious or jocular terms. It can, therefore, be argued that the definition enables the Sessions Judge to restrict the publication of matter, which though scurrilous according to the dictionary meaning, may not contain an element of indecency, immorality or defamation and would, therefore, encroach upon the citizens'' fundamental right of freedom of expressions and speech and therefore not saved by Clause (2) of Article 19 of the Constitution.

But the word ''scurrilous'' has been placed in Section 3(vi) between the words "grossly indecent" and ''obscene'', and read in its context with these words, it must be taken to mean in the popular sense of being ''grossly or obscenely abusive'', and the Act must be construed as directed against matter which is scurrilous in this Sense. The learned author Basu in his commentary on the Act seems to be of the view that the three words have similar connetation (vide Basu''s commentary on the Constitution of India, Edn. 2, Appendix P. 1021). We are, therefore, of the opinion that according to its true construction, the definition of ''objection-able matter'' u/s 3(vi) of the Act, so far as it includes words which may be grossly indecent, scurrilous or obscene is within the legislative competence of the Parliament. We are not concerned with the constitutionality of the rest of the definition of the words ''objectionable matter'' in this Act and we express no opinion about it.

Similarly no exception can be taken against Sections 4 and 7 of the Act on constitutional grounds. The Sessions Judge is required to make an inquiry before making an order. If the person proceeded against so desires, the inquiry has to be made with the aid of a jury of specially qualified persons and a right of appeal to the High Court is given against the decision of the Sessions Judge. The Act thus provides a machinery which ensures observance of rules of natural justice. The Act is to remain in force for a period of two years from the date of its commencement and therefore there is a definite time limit for the duration of restrictions to which a person is subjected under the Act. Sections 3(vi), 4 and 7 of the Act are thus within the legislative competence of the Parliament under Clause (2) of Article 19 and we hold that they embody reasonable restrictions on the fundamental right of freedom of speech and expression.

On merits it was argued that the passage did not contain any objectionable matter. The earned Sessions Judge and the jury had held that the passage was neither grossly indecent nor obscene and it was contended by the learned Advocate for the Appellant that it could not be deemed scurrilous within the meaning of Section 3(vi) of the Act. The verdict of the jury accepted by the Sessions Judge may seem apparently inconsistent as scurrility indicates an abusive imputation which implies indecency or obscenity as interpreted by us. But the case is before us in appeal and we have full powers u/s 23 to deal with the matter and vary the order as we may deem fit. The ultimate decision is that the article is scurrilous and we can ignore the earlier part of the opinion if we think it is not correct.

The passage accuses the Ministers of Saurashtra of three things:

They drank wine secretly.

They view films of naked women in the secrecy of their residences provided at the expense of the people; and

They clap their opponent in jail without a trial.

The article further says that the only distinction between them and the rulers of the past is that while the rulers had the courage to indulge in these immoral and unjust practices openly the Ministers who are described as modern dictators indulge in them secretly and are thus cowardly and wanting in courage. The Ministers are alleged to be preaching morality to the people in public, while indulging in acts of gross immorality in private, and the article says that such Ministers should be called to account from, a distance for the company of bad men is sinful.

We think that the second allegation that the Ministers see films of naked women secretly in their residences is scurrilous within the meaning of the Act. We do not think it necessary to deal with the first and the third allegations. If the allegation under consideration had shown in its context that the Ministers were thereby satisfying an artistic flare or a harmless craving, it might have been a different matter. Viewing nude pictures of women or made statues may by itself be neither indecent nor obscene for such pictures and statues are oftentimes prized as works of art or are considered to have religious significance. But if in its context with other'' portions of the passage the allegation is held to impute lewdness, lasciviousness, lustfulness or such other moral deprivity to the Ministers it becomes ''obscenely abusive.''

We are of the opinion that the imputation of this conduct in the context points to moral deprivity relating to sex as there is reference to similar acts of immorality being indulged in by the former rulers in the succeeding passage in the article. As the imputation is therefore grossly or obscenely abusive it must be construed as scurrilous. It is to be noted that the jury which was composed of men, qualified to express opinion on these matters, were unanimously of this opinion and we do not think that their verdict is wrong in the view which we take of the nature of the imputation involved in the allegation.

It was next argued that the objectionable matter was published once only in the ''Virat Bharat'' during an election campaign. The article, it was argued, was a reprint of the article published by Shri Puratan Buch, who according to the Appellant, is a man of Some status and upon whose veracity reliance could be placed and under the circumstances, no action should have been taken on the publication of a single article or in the alternative the amount of security should be reduced. The question whether there are sufficient grounds for taking action against the publisher of a newspaper under Sections 4 and 7 is primarily one of discretion for the Sessions Judge and the jury. In the charge to the jury the learned Sessions Judge had fairly placed all these circumstances before them for their consideration. The jury nevertheless expressed the opinion that security should be demanded from the Appellant and the learned Sessions Judge accepted their opinion. The amount of the security was also fixed by the learned Sessions Judge on the recommendation of the jury. Under the circumstances, we do not think it fit to interfere with the exercise of their discretion.

Mr. Hathi referred us to a number of decisions u/s 4, Indian Press (Emergency Powers) Act and particularly to the decision of this High Court in - ''Bhanushanker v. The State AIR 1950 Sau 1 (SB) (A). In that case it was held that criticism of the doings or policy of Ministers even if strongly worded could not bring into hatred or contempt the Government established by law. This case has obviously no application for in this case the allegation is against the private life of Ministers expressed in obscenely abusive language.

In the result the appeal fails and is ordered to be dismissed.