Mahamana Madan Mohan Malaviya

Mahamana Madan Mohan Malaviya
Speeches & Writings

The Press Bill


At the meeting of the Imperial Legislative Council held in the 4th April 1910, the Hon. Sir Herbert Risley moved for the introduction of “a bill to provide for the better control of the Indian Press”. The Hon. Pandit made the following speech in the connection with the Bill:-


My Lord, it is perhaps an advantage that I rise to lay such views as I have on this Bill before the Council, after having had the benefit of listening to the many able speeches which have been delivered in connection with it. I regret, however, to say, my Lord, that having heard all those speeches, I am still unconvinced as to the necessity of this Bill or dealing with it in the manner in which expressed both in this Council and outside it that a measure of the extraordinary importance of this Bill should be dealt with. Reference has been made to the hurry in which the Vernacular Press Act was passed in 1878. My Lord, one mistake does not justify another. In the present instance, neither in the long and lucid speech of the Hon’ble Mover of the Bill nor in the subsequent speeches that have been made has any explanation been offered as to why it is necessary to rush this measure as it is being rushed. My, Lord, the great advantage which the Government has thought it necessary to secure to the public in connection with the measures which are brought before the Legislative Council in giving publicity to them is that those who are interested in the measures should have the fullest opportunity of expressing their opinions regarding them and of submitting them to your Excellency’s Council in order that those opinions may be considered before deciding the final shape which the measures should take. As soon this measure was introduced, it was referred to a Select Committee. The Select Committee have no doubt considered the Bill; but if there had been a general discussion in the council of the principle of the Bill and the general lines of the criticism had been known to the Committee, I am certain, my Lord, that it would have been the great advantage to the Select Committee in doing their work. I have received telegrams from my own province, from the President of the United Provinces Congress Committee, from the President of the People’s Association at Lucknow and from the Secretaries of the Maharaja Sabha at Madras asking me to lay them before the Select Committee and your Excellency, and to urge that more time should be given for the consideration of the Bill. My Lord, it is not enough to say that the Bill has been published and that it has been before the public for three or four days. The measure being of the importance which it is, I submit that a great deal more time should have been given to the Press and the public to consider and to criticize the Bill, particularly as no circumstance has been mentioned which could justify its being hurried thorough the Council.


Now, my Lord, coming to the Bill itself, we are no doubt confronted by the outstanding fact, that there have been certain anarchical crimes and outrages committed in this country. Every good man must deplore and detest these crimes. They are hateful in the sight of God and men, and they have been condemned all over the country in unmistakable language. If it were necessary to extirpate the germs of anarchical crimes, I am sure the whole country would rise as one man to support the measure, and to thank your Lordship’s Government for introducing it. But it is evident from all the remarks that have been made both by official and non-official members that there is very little expectation entertained that this measure will really have any substantial effect upon anarchical crimes. I do not deny that it may check the distribution of the poisonous literature which some newspapers have been indulging in; but that it will have any effect upon those men who have gone into the wicked camp of the anarchists or terrorists, I do not think any member to entertain even the hope that it will achieve that result. That being so, my Lord, we have to consider what are the circumstances which justify the passing of such a measure as the one before us. The whole country, as I say, all decent people, are united, are of one mind with the Government in desiring that whatever measure may be necessary for the purpose of putting down anarchical crime should be adopted. But it must be shown that a particular measure is calculated to secure that object. The Hon’ble Mover of the Bill said in his opening speech that he had to justify the Bill before the Council and to show why and how the laws which exist already are not sufficient to deal with the situation. My Lord, he referred to the murderous conspiracy which has come into existence, and he said that the outrages which that conspiracy had committed or attempted to commit were the direct result of the teaching of certain journals. The Hon’ble the Advocate-General also, in the speech with which he has just now favoured us, spoke of the stream of poisonous sedition which has been passing through several of these journals. My Lord, the picture which the Hon’ble Mover of the Bill has drawn of the existing situation would suggest a question in many minds as to whether there was any law in the land which could deal effectively or at all with the poison of seditious literature which was passing through the papers. One would imagine that there was no law which could deal with the abuse of the liberty of the Press as it was described in the speech of the Hon’ble Mover of the Bill. But, my Lord, as the Council knows, there is already a great deal of legislation existing in our Statute-book which seeks to deal with all abuse of that liberty. The Hon’ble Member began by saying that its was his duty to show why the Government could not be content to rely on the ordinary criminal law. He ended my merely asserting, not proving, that that law was insufficient. I am sorry I did not find any explanation in the speech of the Hon’ble Member as to why these provisions had been found to be not sufficient or wherein they had been found to be insufficient. The Hon’ble Sir Harold Stuart has tried to make up for the omission and has said that section 108 of the Criminal Procedure Code has been found to be a useless weapon. He said that there had been three papers which had been convicted twice, two papers which had been convicted three times, and one which had been convicted six times. My Lord, a repetition of an offence by six papers out of a total of, I believe, nearly 800 papers in the country, does not show that there is not sufficient provisions in the existing law to deal with cases of sedition or attempts to promote sedition. The situation therefore demands that before we give our assent to a new and stringent measure being placed on the Statute-book, the existing provisions of the law should be dispassionately examined.


Now, my Lord, there are two matters to which I would especially invite attention. The present Bill, as the Council has noted, defines what would be regarded as prohibited matter, and the publication of which would expose a man to the penalties or to the consequences which are described in the Bill. Among the matters so prohibited, as the Hon’ble Mover of the Bill pointed out in his speech, are certain offences which are already provided for in the existing Codes. Take, for instance, those mentioned in clause (a) of section of the Bill, to incite to murder or to any offence under the Explosive Substances Act, 1908, or to act of any violence, these are fully provided for the Act VII of 1908- an Act for the prevention of incitements to murder and to other offences in newspapers. The Hon’ble Mover said that it was thought advisable to include them in this Bill in order that the Government may, if necessary, take action of a less severe kind than that prescribed by the Act of 1908. I submit, my Lord, that the outrages that have been committed of late, would make one think that this was not the time when the Government would seek milder methods to deal with cases which fell within the purview of the Act. Clause (b) relates to the offence of seducing any offence, soldier or sailor in the Army or Navy of His Majesty from his allegiances or his duty. Section 131 of the Indian Penal Code already provides that any person who attempts to do any of these acts shall be punished with transportation for life or with imprisonment which may extend to ten years and shall be liable to fine. Then, my Lord, the third clause incorporates the provisions of section 124A and 153A with the addition of an offence against Native Princes or Chiefs. And the clause which seeks to protect judicial officers serving His Majesty from being maligned or unjustly attacked. These, my Lord, are the most important provisions of the Bill. And I beg to invite the Council’s attention now to the provisions of section 108 of the Criminal Procedure Code. Under that section any person who disseminates either orally or in writing or attempts to disseminates or in any wise abets the dissemination of any seditious matter, that is to say, any matter, the publication of which is punishable under section 124A of the Penal Code, or any matter, the publication of which is punishable under section 153 of the Indian Penal Code, or any matter concerning a Judge which amounts to criminal intimidation or defamation under the Indian Penal Code, that section provides that if any editor or printer or publisher or proprietor of a newspaper shall be guilty of any offences specified there, the District Magistrate or the Chief Presidency Magistrate shall have the power, with the previous sanction of the Governor-General or of the Local Government, to call upon the person so offending to show cause why he should not be found down with or without sureties to be of good behavior for a certain period. I submit, my Lord, that this is a provision which should enable the Government to deal with cases of persons who disseminates seditious or other objectionable matter who, that is to say, publish prohibited matter or such matter as the present Bill says will be prohibited matter. Then, again as I have said before, there is the Newspapers (Incitements to Offences) Act. That Act was passed in 1908 after writings of the certain journals, to which the Hon’ble Mover of the Bill I think referred, had led to the commission of some outrages. Now, my Lord, section 3 of that Act provides that where upon an application made by the order of or under authority from the Local Government, a Magistrate is of opinion that a newspaper contains any incitement to murder or to any offence under the Explosive Substances Act, 1908, or to any act of violence, such Magistrate may make a conditional order declaring the printing-press used, or intended to be used, for the purpose of printing or publishing such newspaper is or at the time of the printing of the matter complained of was printed to be forfeited, and to make such conditional order of forfeiture absolute unless the person concerned appears and shows good cause against it. These two sections, my Lord, give ample power under the existing law to the Government to deal effectively and speedily too with persons who abuse the liberty of the Press. It has not been shown in what respects these provisions are insufficient, and I submit that justification for introducing a new measures has not been established. It may be said, my Lord, that the procedure and punishment provided by section 108 are insufficient to deal with cases of persons who repeatedly commit the same offence. I am unable to understand why in such cases also be repeated application of the provisions of that section should not put an end to the evil activities of such persons. But assuming that it would not, I submit, that the proper course would have been to ask for an amendment of that section in order to incorporate more penal provisions to effect the end which the Government has in view and not to introduce a new measure.


If, my Lord, the necessity of a new Act has not been established, then I submit that the matter should end here. Assuming, however, that a real necessity has been felt for giving greater power to the Courts, assuming also that the course of amending the existing Acts has for any valid reason not commended itself to the Government, and the Government feel in all the circumstances of the case that a new Act should be passed, I should like then to hear some explanation as to why a great, a novel and, I submit with great respect, a dangerous departure has been introduced in this Bill against the principle of all the existing enactments, which the Government has passed during the last fifty years and more. My Lord, under the Criminal Procedure Code once the sanction of the Governor-General or of the Local Government is obtained to proceed against any editor, printer, publisher or proprietor of a newspaper to require him to give security for good behavior, the whole procedure which is regulated by the provisions of that Act is judicial, and the whole matter is left to be the dealt with judicially by the Magistrate. So also in the case of the Newspapers Offences Act which deals with offence of a far more grave character. The Government passed that enactment less than two years ago and they considered it both just and wise to adhere to the principle of leaving it to the Magistrate and the Courts established by the Government to decide what matter fell within the definition of sedition and what did not. I do not understand, my Lord, why this new departure should have been made in the present Bill by which, instead of leaving to the Magistrate to decide the matter and what did not, the Local Government is empowered to take upon itself to decide what matter is seditious without giving an opportunity for hearing to the person against whom it may so decide. I submit, my Lord, that this is a departure which is not justified by the existing circumstances of the country. The crimes at the prevention of which the Newspapers Offences Act aims are, my Lord, more serious and certainly not less serious, than the crimes which it may be hoped that the present Bill may tend to prevent. That being so, I submit, that if the legislature has thought it right to leave it to the Magistrate to decide whether a newspaper contained incriminating matter within the meaning of the Act, it should have been left also to the Magistrate to decide what matter came within the definition of prohibited matter under the proposed law. My Lord, the Bill raises ‘a political question’, to quote the weighty words of Mr. Gladstone uttered in the House of Commons in connection with the Vernacular Press Act of 1878, ‘of great importance, of the utmost delicacy, namely, whether it is wise for the Government to take into its own hands and out of the hands of the established legal jurisdiction the power of determining what writing in seditious and what is not.’ In the course of the same debates, Mr. Gladstone observed that ‘the most unfortunate feature which the measure presents is the removal of Press prosecutions from the jurisdiction of the judicial establishments of the country in order that they may be dealt with as matters of executive discretion.’ The Bill before us seeks to revive that feature of the Vernacular Press Act which was so justly condemned by Mr. Gladstone. My Lord, the argument that in taking proceedings against offending printers or publishers under the ordinary criminal law there would be a great deal of publicity given to the offence and that would be a public advantage, is not a new one. It had been urged to support the Press Act of 1878. Speaking reference to that argument, Mr. Gladstone said: ‘The argument that is made for the abstraction of these matters from the Courts of Justice is one which strikes at the root of our policy, and the best part of our policy, in India.’ It is said, ‘oh no, we will not prosecute in the Court, for if we do that the prosecution will bring these men into popularity, and the mischief of the prosecution will be greater than that of submission to the evil.’ My Lord, this argument has no greater force to-day than it had in 1878; and, I submit, it is not an argument which is worth considering in the face of the great danger involved in the departure which it is sought to make from the principle upon which the entire system of the administration of justice is built, and which the Government has followed throughout in enacting all its laws. That being so, I respectfully submit, that if the Government feel that a new measure must be passed, this novel principle which has been introduced into the Bill should be eliminated, and power should be left to the Magistrate as in other enactments to deal according to law with what may be regarded as prohibited matter. There can be no possibilities, my Lord, of the effect of this measure being weekend by adhering to the right principle: it will be still quite as potent for preventing mischief as the present measure can be. The sanction of the Local Government will yet be necessary before any action is initiated the matter will be left to be dealt with by the Magistrate acting as a Judge, and any order that he may pass will rightly and properly go up to the High Court for revision or in appeal. I may say here that I do not see why an appeal should not be allowed from an order asking for a deposit of security as well as from an order for the forfeiture of that security. If an order is made by the Magistrate and it is taken up in revision or appeal before a High Court, there will be a greater assurance in the public mind that the merits of the order will receive due consideration, than, my Lord, human nature being what it is, and the circumstances of the country being what they are there would be when an order passed by the Local Government on the executive side will be brought up for revision before the High Court. So far then with regard to the necessity of the new measure and in regard to the new change of principle which it introduces. I submit, my Lord, that the necessity of it has not been proved, the justification not established.


Let us now consider some other aspects of the Bill. The Hon’ble Mover of the Bill has stated the objects of the Bill to be somewhat larger. He has stated that the object of the Bill is ‘to provide for the better control of the Press or to confine the Press- the whole Press, European and Indian, English and Vernacular- within the limits of legitimate discussion.’ My Lord, that clear statement of the object clears the ground to a great extent for discussion. It naturally gives rise to the question whether the condition of our Press, European and Indian, English and Vernacular, in this country is such as to justify any legislation to keep it within the limits of legitimate discussion. My Lord, the Hon’ble Mover of the Bill has given us a history of the liberty of the Press in this country. He has told us that during the last seventy years, with the exception of two short periods of one and three years respectively, the Press in India has been free: he has told us that these two periods were one the short period in the dark days of the Mutiny, and the other period of the Vernacular Press Act. My Lord, the Vernacular Press Act was repealed within three years and action was taken under it only once. We can take it that there was no necessity for Government to restrain the liberty of the Press in actual practice. Up to the year 1907, the Hon’ble Mover of the Bill has said that there had been only sixteen Press prosecutions. My Lord, I ask the Hon’ble Member to say if in Austria to which he referred, or in any other country to which he might refer, the Press has a whole behaved better or been conducted more respectably than in India during the last seventy years. The remarks of the Hon’ble Member would lead one to think that the Press had been offending for a long time; he has spoken of the great forbearance which the Government exercised in dealing with the Press: he spoke of that forbearance as extreme: he said that some people thought that it was excessive; and he complained in spite of that much forbearance being shown, the Press did not mend its ways but went from bad to worse. My Lord, if the picture drawn by the Hon’ble Member were true, it would have cast a most serious reflection upon the administration. If it were true, it would show that while the administration saw that the Press was going steadily from bad to worse, it did not take any steps to check the evil course. But happily for the Press and for the Government we have in remarks quoted by my Hon’ble friend Mr. Dadabhoy the testimony of more than one very high official of Government that the Press of this country has as a whole behaved respectably and honourably and that it has given little ground for complaint. I will not quote, my Lord, what the Hon’ble Member may regard as ancient history. Sir Herbert Risley gave us the history of the Press up to the year 1907, and he then drew attention to the Resolution which your Excellency’s Government was pleased to issue in that year for the better control of newspapers. In that Resolution it was stated that ‘the Governor-General in Council has no desire whatever to restrain the legitimate liberty of the Press to criticize the action of the Government, and he would be most reluctant to curtail the freedom of the many well-conducted papers because of the misbehavior of a few disloyal journals. My Lord, barely two years have passed since your Lordship was pleased to graciously acknowledge that the many papers in this country were well conducted and that the journals which were disloyal were a few. I venture to say, my Lord, that that is the position even to-day. With the regrettable exception of a few papers in some parts of the country, the great bulk of them are still well conducted. If this is so, the case which my friend sought to make against a general restriction of the liberty which the Press has enjoyed, the case which he sought to make for taking legislative action to confine the whole Press within the limits of legitimate discussion, has not, I submit, been made out. Your Lordship will be pleased to remember that the last two years and a half have been a period of exception. Up to the beginning of the year 1907 or I will go back a little earlier, up to nearly the end of the year 1905, the Press generally behaved in an excellent manner, even in the province of Bengal. I do not think that there were many papers till then the conduct of which could be much complained of. My Lord, we all know then the unfortunate but momentous event which occurred about the end of 1905. We all know the act of violence, as many millions of people believe it, which was committed by Lord Curzon’s Government in partitioning Bengal against the prayers and protests of the people. And it is from that time, my Lord, that the evils which are we now deploring, and which have led to several deplorable results, largely date their origin.


My Lord, it was in 1906 that a certain portion of the Press assumed a tone of bitterness and even hostility which continued to grow also in 1907, but, I submit, my Lord, that that evidenced abnormal condition. The causes of the change in the tone of Press were discernible by everybody who cared to think about it. We regret them, but we cannot overlook them. It was due to the cause to which I have referred and to the bad feelings which were excited in the year 1905 and in the succeeding year by certain official acts and utterances. I am sorry to say therefore that the regime of your Lordship’s predecessor was largely responsible for diverting a section of the Press from its honourable course into a course which has caused immense pain to all lovers of the country, to all lovers of peaceful progress and good administration. My Lord, the evil is there, but in dealing with it, in taking steps to extirpate it, let us remember the causes which have brought it about, so that our judgment may be tempered as the circumstances of the case may require. Let us remember also that since the time these newspapers began to abuse the liberty which they enjoyed, the Government has not been sitting idle. At no stage during the last three years could it be said that the Government failed to do its duty in regard to the suppression of all the expressions of seditious opinions. We are told that the Government has been mild- the impression among the people generally is that the Government has been unduly severe: but, my Lord, there is another class of opinion which holds that the Government has been firmly mild and sympathetically sever as it thought the occasion required it to be. As soon as it felt that there was a necessity for doing so, it passed the Newspapers Offences Act in 1908, which can by no means be described as a mild measure. That Act has led to the suppression of certain journals which offended most severely; others have been tamed down or have died out. If there is any journal existing which still offends against the law, there is no provision enough in the existing Code to stamp it out of existence. There is not a single member in this Council who would desire that any mercy should be shown to such journals, no one who desire that they should be allowed with impunity to abuse the liberty of publication which they enjoy. But I submit that unless the existing enactments are shown to be insufficient, that unless it is shown to be necessary to introduce new legislation, the Government should not place one more repressive measure on the Statute-book. I am sure your Excellency would be most unwilling to place one such other measure on the Statute-book. There is doubt that this Bill, if passed, will become a new source of discontent. This is evident from what I have seen of the comments that have already been in some papers and from the many communications to which I have referred. Your Lordship was pleased in the noble and gracious speech with which you opened this expanded Council, to point out that, deplorable as were the outrages which the anarchists had committed, there were mere passing shadows. Your Lordship will allow me to quote your Lordship’s words. You were pleased to say:


‘Though I have no wish to disguise from you the anxieties of the moment, I do not for an instant admit that the necessity of ruthlessly eradicating a great evil from our midst should throw more than a passing shadow over the general political situation in India. I believe that situation to be better than it was five years ago. We must not allow immediate dangers to blind us to the evidences of future promises. I believe that the broadening of political representation has saved India from far greater troubles than those we have now to face.’


My Lord, that being the situation, that being the correct reading of the situation, there is very little justification for introducing and passing the measure that is now before the Council. If it cannot be abandoned, my Lord, I submit, that there should be at any rate time allowed for further consideration of this measure. There is a real danger felt that the provisions of the Bill as it stands will seriously affect the legitimate liberty of the Press. Those provisions are unnecessarily wide and drastic. I will not take up the time of the Council by dwelling on them in detail. By way of illustration I beg to invite attention to the fact that the Bill has discarded even the very reasonable provision which existed in the Vernacular Press Act of 1878, whereby the Local Government was required to give notice in the first instance to an offending newspaper, a warning so that the publisher might avoid offending again. Section 6 of that Act required that such a warning should be given, and section laid down that if the warning was not heeded certain consequences were to follow. I submit, my Lord, that such provision at least should have been included in this Bill. Secondly, there is danger from the Bill not only to new presses but also to existing presses. In the case of new presses there is no reason shown for requiring everybody who wants to start a press to deposit security. The fact that there are certain persons in the community who abuse their liberty does not justify action being taken against persons who have not misconduct themselves. To require every newspaper which may now come into existences to deposit a security is, I submit, placing an unnecessary barrier in the path of journalism casting an undeserved slur upon the good conduct of the person who may wish to start a paper. If however, the Government insists that some security must be deposited, it is nothing but reasonable to suggest that the Magistrate should only require it from a person in whose case he considers that there are grounds for believing that he might make use of the press for evil or seditious purposes. My Lord, considering that the liberty of the Press has not generally been abused during the long course of seventy years, I submit, it is fair to ask that this change at least should be made in the Bill. I do not wish that an offender should be saved from the consequences of his evil action. I am only anxious that persons who are not guilty, who have never allowed any idea of disloyalty or sedition to enter their minds, should not be punished because some other person or persons have offended. Then, my Lord, in the case of existing presses, the Bill says that whenever any person goes to register himself as a publisher of a paper, the Magistrate shall demand a security from him. I submit that will mean that if the publisher of a paper which has existed for thirty years and which has never offended dies and a new publisher goes to make an application to have himself registered as such, or if the owner of a paper or a press which has existed for thirty years dies and the son or the heir goes to make an application that he should be registered as the keeper of a press or the publisher of the paper, he will be called upon to give a security. I submit that this is extremely hard and unjust. The Bill does not give the protection which it was thought at the first reading of the Bill was given to existing presses.


My Lord, I will not take much more time of the Council. I am only anxious that the provision of the Bill which have created an apprehension in the minds of the people that the liberty of legitimate discussion which is highly beneficial to the people and the Government will be curtailed, should be given up or recast. My Lord, when the Press is left at the mercy of the Local Government, when it is left to the Local Government merely issuing a notice to demand a security, I submit the freedom with which newspapers have expressed their criticism of the acts and omissions of the Government is very much likely to suffer. After all, Local Government are composed of human beings who are liable to err; and we have had instances of Local Governments committing mistakes which sometimes the Government of India have had to correct. If it should happen, my Lord, that a paper has been writing a little more outspokenly than it should have done, if a paper has offended by a series of criticism passed upon the Local Government, any incautious or careless expression in it might much sooner be construed as falling within the definition of prohibited matter than might be the case if the paper had not been so criticizing the Government. A notice issued to the keeper of the press or the publisher to deposit a security will, I fear, in many instances, at least in some instances, leads to the extinction of the paper. The paper might be owned by an individual who may not be in a position to lose the little property he has. It may be owned by a Company, and they may wish at the first indication of danger to close the business to avoid the threatened loss. In that way, my Lord, I submit, papers generally will be constrained to write under a greater sense of restraint than is needed for the purposes of good administration or of fair discussion. For these reason, I submit, that the further consideration of this Bill should be postponed. And in support of this submission I would remind the Council of what Mr. Gladstone said in connection with Vernacular Press Act. He said, ‘I think, if one thing is more obvious than another, it is that, whatever we do give, we should not retract, and that when we have communicated to India the benefit which is perhaps the greatest of all those that we enjoy under our own institutions, viz, the publicity of proceedings in which the nation is interested, and the allowance of sufficient time to consider them at their several stages, to afford securities against wrong and error- it is deplorable in a case like this in India that the utmost haste….Should have been observed, not in amending or altering, but in completely overturning, so far as the Press was concerned, a cardinal part of the legislation of the country.’ I have omitted the word ‘Native’ because the present Bill affects the whole Press, Europeans and Indian, English and Vernacular. My Lord, I submit, that those weighty observations give us very sound guidance as to the lines which this Council should pursue. We should not expose ourselves to a similar criticism by passing this Bill to-day. No possible injury can happen if the further consideration of this Bill is postponed in order that the public should have further time for consideration. Members of the Councils should have a further opportunity of weighting the Bill, and the Government of re-considering its decision as to necessity of a new measure, or at least of introducing the new principle, viz, that of substituting executive direction for judicial decision in determining whether a man  been guilty of some of the most serious offences of which any man can be guilty.




Mahamana Madan Mohan Malaviya