P L D 1960 (W (PLP)

KAYANI, C. J.‑

On 21st August 1959, the Governor of West Pakistan passed two orders under the Press (Emergency Powers) Act (XXIII of 1931), one under section 8 (i) (a), forfeiting the security of Rs. 1000 deposited in respect of the daily Hilal‑I-Pakistan, the other under section 3 (3), demanding a security of Rs. 3,000 in respect of the printing Press of the Hilal‑i‑Pakistan. These orders were made because, in the opinion of the Government, an editorial published in the Hilal‑i‑Pakistan of 21st June 1959 contained words which were "of the nature described in clause (d) of section 4," that is to say, "which tend directly or indirectly to bring into hatred or contempt * * * the Government established by law * * * * * or to excite disaffection towards the said Government." Against these orders, two petitions have been brought, invoking our jurisdiction under section 23, and we have to decide whether the newspaper and the press in respect of which the orders were made "did or did not contain any words, signs or visible representations of the nature described in section 4, subsection (1)." Signs of that sort there are none, and it is a good sign; but the words contain signs of the times, and that is not always a good sign.

2. The words in question are these, and we hope that they do not suffer in translation: "those who are bent upon demolishing the structure of politics, ought to know that they do not wish well of Pakistan and that they are entrusting the future of Pakistan to the darkness of despair and defeat." "We regret that even after the Revolution no attention has been paid to the growth of healthy politics; rather, this field is being closed with a double‑edged sword. The result of this policy will be that the prospects of restoring democracy in Pakistan will recede for ever, and the reins of government will permanently pass to the hands of public servants:"

3. Now we must say that when we read these words in the printed paper book, we were struck by their "visible represen tation" and came almost with ' a preconceived notion that the editor had crossed the frontiers of law. When, however, we read the whole article in Court‑to say nothing of the manner in A which Mr. Mahmud Ali read it‑we had no hesitation in holding that there were about two columns of healthy criticism with a few immoderate words, which may bear some relation to the twenty first of June. In fact the editorial is entitled " Healthy Politics."

4. To create the proper atmosphere, we shall find it necessary to reproduce the better part of the editorial. Before doing so, however, we must recall our duty under section 23 which is to decide whether these words, read in their context, do or do not tend to bring the Government into hatred or contempt, or whether they do or do not excite disaffection towards the Government. Hatred and contempt are very strong words, and it should be presumed that a person who wants to exite the emotions for which they stand himself holds the Government in hatred o contempt, or has a feeling which is the very opposite of affection, not a mere indifference. And while on the one hand we should be thinking of hatred, contempt or disaffection, on the other hand we should also have an eye on Explanation 3 to section 4, which permits "comments expressing disapprobation of the C administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection." This is indeed called healthy criticism. But it is not to be over‑robust. And obviously, it can never be fiatering, because disapprobation and flattery do not go together. The Explanation, it must be remembered, does not say that the expression of disapprobation must be sound. It may not be sound and the Government cannot say, merely because it is not sound, that you are misleading the people, or that you are causing disaffection. For, if that were so, then everything that you said against a measure of "Govern ment will amount to disloyalty, disaffection, contempt, hatred and what not. The policy of the Press (Emergency Powers) Act would, however, seem to be that you can criticise in good faith, even to the extent of obtaining " an alteration of the measures j of Government by lawful means", and that is the text of Expla nation

2. This policy is based on a realization that the Govern ment can commit mistakes, and has a nobler objective in mind, namely, that, even if the Government cannot commit mistakes, it is the Government of all of us, and each one of us should have the feeling that he is taking part in the framing of policy and can speak out his honest mind. In the last resort, therefore, inten tion plays an important part in determining whether a speech or writing induces the feelings to which the law takes exception, provided always that certain limits are not exceeded, because it is sometimes true that hell is paved with good intention.

5. Now we attend to the editorial. As already pointed out, it is entitled "Healthy Politics." Since the first paragraph con tains the keynote of the editor's text, we reproduce it in extenso: "The West Pakistan Government has directed the local officers at Gujrat to eliminate undesirable persons from marketing committees. It is learnt that in this connection the deputy com missioner of Gujrat has directed the preparation of lists of those non‑official members of the committee who have remained active members of former political parties. When such lists have been prepared, the removal of these (members) will be recommended."

6. The editor then says with his royal "we" that although he is himself "the worst enemy"' of "dishonest and selfish poli ticians" and regards them as the enemies of the nation, at the same time he does not consider it to be in the national interest that every politician and political worker should be declared an enemy of the nation and deprived in the future of opportunities to serve the nation and the country. Our problems cannot be solved by ending politics and abusing those who took part in it. For the difficult situations created in the land the responsibility lies with a few dishonest persons who entered politics by the use of wealth, influence and cunning and who can be counted on fingertips. Then he gives a small list which, he adds, can be swollen to assume quite respectable proportions, without much exertion. These, he says, were undoubtedly men who spread over the country a net of ceaseless intrigue and conspiracy, but it is "wrong, illogical and unfair" to say that whoever has participated hitherto in politics is dishonest and a national enemy. Instead of indiscriminately declaring every political worker of the past a criminal, we should built a war front against those who have been disloyal to the national interest and because of whom we have gone back a hundred years: "We admit that, in the past, the interest of the nation has been bartered in the name of politics, but this does not at all mean that we should throttle politics for ever. Today, those who are bent upon demolishing the structure of politics ought to know that they do not wish well of Pakistan and that they are entrusting the future of Pakistan to the darkness of despair and defect. In every democratic country politics provide scope for the growth and development of the intellect. In a demo cratic country, it is the people themselves who produce capable persons to wield the responsibilities of Government (and evolve a policy), while public servants operate the settled policy. The principal misfortune of Pakistan in the past was the failure of the people to produce suitable men to undertake the res ponsibilities of Government, and this was because there did not exist in the country that field for the exercise of healthy politics which inspires the thought and practice of common political workers, so that, trained in this field, they can shoulder the responsibilities entrusted to them by the country."

7. The editor again points to "those political muggers" who rode the nation like the leather legged old gentry of fiction, and who should have been punished as a first incident of the revolution of the eighth October Simultaneously, there should have been laid the foundation of healthy politics, attended by the encouragement of honest and sincere workers and the crea tion of an atmosphere which brings Churchils to the forefront. He regrets, however, that this had not been done "even after the Revolution". On the contrary, this field of healthy politics is being closed with a double edged sword. "The result of this policy will be that the prospects of restoring democracy in Pakis tan will recede for ever, and the reins of Government will per manently pass to the hands of public servants. In our opinion the leaders of the Revolution should take notice of this and instead of shutting out politics and discouraging political workers, an atmosphere should be created for the growth of healthy politics and the encouragement of honest and capable political workers." And the editorial ends here.

8. It should be recalled that the occasion for this editorial is the Government's direction that undesirable elements should be eliminated from marketing committees and the direction of the deputy commissioner to prepare list of those who took active part in politics. Mr. Mahmud Ali argued for the petitioner that the criticism is directed not against the Government but against the deputy commissioner, and we are not convinced that this F is not the case. If the first paragraph is read with the last sentence of the editorial, where the leaders of the revolution have been asked to take notice of the fact that " undesirable elements in marketing committees" are being identified with "persons who participated actively in politics," and we couple the observation that in all democratic countries the public servant merely carries out policy, with the subsequent fear of the editor that the sup pression of healthy politics will cause the reins of Government to pass into the hands of public servants, we begin to see sub stance in Mr. Mahmud Ali's argument. The editor brings to the notice of the leaders of the Revolution, namely, the present Government, what the deputy commissioner of Gujrat is doing, and what many another deputy commissioner might be doing. The editor does not say that perhaps the deputy commissioner is pursuing the policy of Government. In the light of this argu ment, "those who are bent on demolishing the structure of politics" and who use "a double‑edged sword to end healthy politics" cannot be the same persons as those who are the leaders of the Revolution.

9. Next, we have no doubt that this is a fair comment expressing disapprobation of an act‑even if it be assumed to be an act of the Government‑with a view to persuading the Gov ernment to alter its policy, if indeed that be its policy. In other words, if it be the declared policy of the Government that politics should cease, the Press Act permits a newspaper to say frankly that this is not sound policy. But it is not our opinion that the editor believes this to be the policy of Government. The editor, with all of us, heard the present President of Pakistan announce in his very first speech in October 1958 that the intention of the new Government was to restore democracy. It is not restored by the elimination of politics. The editor must have heard about basic democracies as being the first step towards that end. He knows with all of us that marketing committees are as basic as village councils. In fact, politics are more conscious in marketing committees than in village councils. Certain things inhere in the nature of things. The gregarious instinct of man, which is on a higher level than the mere harding instinct because it is attended by the gift of speech, impels him to sit in palaver with his fellows, whether there be a round table or not, and talk about things. When they talk about matters which affect the gover nance of the country, they talk politics. Politics are thus and expression of a somewhat developed human mind and cannot be repressed for long periods. If healthy channels are not pro for them; they will seek an outlet through unhealthy channels. At the same time, there is always a class of people who devote themselves to politics, and if you exclude this class, it is not as though you were replacing one set of engineers by another. You might as well replace politicians by engineers, and the editor fears that you might replace them by deputy commissioners‑in‑council. The deputy commissioner of a demo cratic country should carry out only policy, and for the laying down of policy you should have men from the public, men like Churchill‑or a little less. But you can do that only if you create an atmosphere of healthy growth and development.

10. That being the purpose of the editorial, which is spread over two columns, can it be said that when in this context the editor says that this field is being "finished" with a double‑edged sword, he means anything more than what he says in the very next sentence‑that the result of this policy will be that the prospects of restoring democracy will darken for ever? We do think that the use of " a double edged sword" is improper, but we are also clear that there is no intention to incite hatred, contempt or disaffections. For that) reason also‑because the intention is clear‑we do not think that it "tends" to excite those feelings.

11. Whether certain words would excite hatred, contempt or disaffection is a matter of context in another sense also, apart from the context of other words in which they are used. This other context is that of the times in which we live and the Gov ernment which is in power. We have all agreed to call a certain day in October 1958 the day of the Revolution, and there is not a single newspaper which has not celebrated deliverance, from a difficult past. We can only call it difficult, because of the circumstances which had come about and made things) difficult. The editor in this case is not less modest than any other editor in condemning certain matters of the past, and from this attitude we should be able to deduct that he is, to that extent, in favour of, if not an admirer of, the present Govern ment. If this attitude characterizes the whole country‑and we do not see why it should not‑any person who reads such utterances would be affected by them differently than he would be if they were addressed to an oppressive Government. On the other hand, if the Government itself were thus affected, it might create an impression that it is more sensitive than other Gov ernments. With the faith that it possesses in respect of its programme and the sincerity with which it is conducted, we sincerely believe that sensitiveness may damage its goodwill. Mr. Mushtaq Hussain, arguing for the Government, pointed out that editorials of this nature might cause a misunderstanding at a time when the Government has launched its programme of basic democracies. We are of the opposite view. We think that at this juncture it is particularly necessary for the Govern ment to display large‑heartedness, create goodwill and dispel suspicion. Suspicion is like a worm which eats away the bottom of things, unperceived.

12. We, therefore, set aside the two orders of the Gov ernment. A.H. Orders set aside.