P L D 1965 Supreme Court 520 (PLP)

CORNELIUS, C. J.‑The argument raised before us by the learned Advocate‑General was confined to the contention that the publication in question in fact constituted a "prejudicial report", in the sense that it had the effect of inciting to the commission of a "prejudicial act". The relevant "prejudicial act is defined as an act calculated "to bring into hatred or contempt or to excite disaffection towards the Government established by law". It would perhaps have been more appropriate to characterise the publication itself as a "prejudicial act" for the application of the law, since it is clearly devoid of incitement in the relevant sense. The publication is a verbatim report of most of a speech by a renowned political leader, the late Mr. H S. Suhrawardy made at Jessore on the 11th October 1962. The speech was made in aid of the formation of a National Democratic Front. The , burden of the speech plainly was to call attention to the absence of provision in. the new Constitution, which came into force in June 1962, for the Fundamental Rights. (Just three months after the speech was made the Constitution was amended, to include the Fundamental Rights). To determine whether the speech was in itself an incitement to hatred and contempt for the Government established by law, it is important first to regard it as a whole, to determine its scope r and content, and the direction into which it was designed to guide the minds and actions of the audience. Ex‑hypothesi that would be a new direction, and the necessity for, a change would be derived from the existing state of things, requiring therefore some degree of criticism of the established order. A measure of emphasis of language is a requisite for securing conviction and thus gaining active support. The tendency to hyperbole in public speeches of this. kind has a reason behind it, and has to be accepted. The law would, however, not begin to apply unless the words used were in themselves of a character such that they would bring about in the minds of the audience, a strong revulsion of feeling against the established Government, so that a state of active contempt for it as something unworthy would arise, coupled with such aversion as is accompanied ordinarily with a desire t9 injure or destroy the object of the aversion. The learned Advocate‑General was unable to show us that the speech in question was calculated to produce any such effect. It used exaggerated expressions, e.g., "shackles of slavery". In two places, there was pointed reference to the existence of power to detain any citizen without trial, from which apparently was drawn the conclusion of "slavery", it being one of the features of that condition that a person is devoid of the right to question any kind of treatment; however, cruel or inhuman it might be, from his master. In regard to the basic human rights, it is unquestionable that the one upon which most emphasis is laid, is that of personal liberty within the law. Therefore, the particular reference to the existence of power of detention without trial was not irrelevant to the speech, and to mention the fact, in an invocation . to the audience to strive in a united manner for the grant of Fundamental Rights, was apposite. The implied criticism of existing things was not of a character such as to arouse strong feelings of contempt or hatred towards the Government. For the rest, the speaker (1) urged the audience to .work for democratisation of the Constitution (2) pointedly made them aware that they lacked the basic rights, such as that of free expression (3) approved the action of students who had organised movements for further democratisation (4) disapproved the making of speeches by public servants in support of the existing Constitution (5) criticised the activities of certain politicians viz., Parliamentary Secretaries (6) spoke of himself as being the target of criticism by high authority, which however, in his view, enhanced the public esteem he enjoyed and (7) demanded that certain recent governmental actions at Jessore should be made matter of enquiry. None of these can conceivably be regarded as being calculated to provide the drastic results necessary to attract the law of the "prejudicial act." The Advocate‑General did not raise the point3 of (1) subjec tive satisfaction of the Governor as being immune to judicial review or (2) the requirement of "natural justice" that ‑the action under the law should have been preceded by an opportunity to show cause. We see no ground for interfering with the writ issued by the High Court quashing the action of the Government and hereby dismiss the petition. S. A. H. Petition dismissed.