DIRECTOR OF PUBLIC PROSECUTIONS vs. MASSON AND ANOR.

1972 MR 204 1972 SCJ 142

Sir Maurice Latour-Adrien, C.J., and Ramphul*, J. Mr. Herv Masson, editor of the newspaper Le Militant, and Presses Populaires Ltd., the printers of the said newspaper, were prosecuted before the Intermediate Court, each on a separate count, for sedition, in terms of section 283(1)(a) of the Penal Code Ordinance. It was alleged in the information that they had committed the offence by publishing in the issue of the 6th September, 1971, of the newspaper an article headed Le voil cette fois, la dictature in which they had attempted to excite disaffection against the Government of Her Majesty in Mauritius. The magistrates dismissed both counts of the information. The Director of Public Prosecutions has now appealed against the magistrates' judgment by way of case stated on the following grounds:
Because the Magistrates of the Intermediate Court (a) failed to draw the irresistible inference of seditious intent from the very words used in the incriminated article; (b) failed to consider whether the very words of calculated to cause disaffection against the Government; the incriminated article were

(c) in the judgment, they wrongly considered (i) the fact that at the time the article was published, the accused genuinely apprehended that government was considering the banning of the M.M.M. and of the Union; (ii) the possibility that the accused when publishing the impugned article, intended to bring into the open what they considered to be a real threat to democratic liberties and try to dissuade government from taking such a dictatorial step; as showing lack of seditious intent on the part of the accused whereas the above facts are merely indicative of their motive, and the Magistrates of the Intermediate Court erroneously acquitted the accused on the ground that they had no seditious intent.

In the case, as stated by them, the learned magistrates said: We are satisfied of the following:
(1) The 2 accused published in the issue of the daily newspaper Le Militant of the 6th September 1971, an article headed Le voil cette fois, la dictature, a copy of which is herewith attached. (2) The 2 accused who thought that the government had already taken undemocratic measures, of which they themselves felt they had been victims, received information that the government was contemplating the banning of the M.M.M. party and of the Unions affiliated to it. The accused who at the time considered that such a measure would be arbitrary and dictatorial thought that the public should be informed of it and the government mis en garde against taking such a step. As to the impugned article itself we found the following: The article is couched in a language which is offensive and contains bitter thrusts at Government. Considering, as we must in such a case, the article as a whole, we find that the gist of it is the denunciation and strong condemnation by the writer of the intention which government would have of outlawing the M.M.M. Party and the Unions affiliated to it. On the facts we found that we could not safely discard the possibility that the accused when they published the impugned article, intended to bring into the open what

they considered to be a real threat to democratic Government from taking such a dictatorial step.

liberties

and

try

to

dissuade

We accordingly found that the seditious intent of the accused namely the intention of exciting disaffection against the Government, which seditious intent is an essential element of the offence charged, had not been satisfactorily established. We therefore, on the 10th December, 1971, dismissed counts 1 and 2 of the information against accused no. 1 and accused no. 2 respectively.

When the appeal came before this Court, the respondents stated that they would not be represented by counsel and added that they would abide by the decision of the court. At the hearing of the appeal, Mr. Bourdet, for the appellant, invited our attention to the case of Rex vs. Millien [1949 MR 35] in which the Supreme Court (Brouard, Osman and Neerunjun, Ag. JJ, as they then were) examined section 283(1)(a) of the Penal Code Ordinance and held that, under our law, it was not a necessary ingredient of the offence of sedition that the publication should be calculated to incite people to commit violence. Mr. Bourdet then observed that it would appear that, if the word disaffection were given the meaning to it in Millien's case and an intent to cause disorder or violence was not a necessary ingredient of the offence of sedition, the offence, as it existed under our law, would be inconsistent with our Constitution and would be void because it would constitute an infringement of the fundamental right to freedom of expression protected by section 12(1) of the Constitution and would not come within the permissible restriction as provided in section 12(2)(a) of the Constitution. In support of his contention, Mr. Bourdet referred to a number of cases, some of which were decided by the Courts in India. We must here observe that the constitutional point raised by Mr. Bourdet does not appear to have been raised before the trial court. It does not even appear in the reasons of appeal. But as it involves an interpretation of s. 283(1)(a) of our Penal Code and also of s. 12 of our Constitution, we have decided to deal with it. The section of our Constitution which deals with the protection of freedom of expression provides
12 (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision (a) in the interests of defence, public safety, public order, public morality or public health; (b)

The corresponding section of Amendment) read as follows:

the

Constitution

of

India

(before

the

First

Art. 19(1): All citizens shall have the right (a) to freedom of speech and expression;

 (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the state from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.

Under s. 2 of our Constitution and under article 13 of the Indian Constitution, any law which is inconsistent with the Constitution is declared to be void to the extent of the inconsistency. In 1950, the Supreme Court of India had to decide two cases which raised a single constitutional point. In the first, (Romesh Thappar vs. State of Madras, A.I.R. 1950 S.C. 124), the validity of s. 9 (1-A) of the Madras Maintenance of Public Order Act, 1949, which empowered the Madras Government to impose restrictions on the circulation of a publication in the interests of public safety and the maintenance of public order, was in question. In the second, (Brij Bhusan vs. State of Delhi.A.I.R. 1950 S.C. 129), the validity of s. 7(1) (c) of the East Punjab Safety Act, 1949, which empowered the Punjab Government to impose pre-censorship of a publication for the purpose of preventing or combatting any activity prejudicial to the public safety and the maintenance of public order, was in question. The Supreme Court had no difficulty in holding that an imposition of restraint on circulation or an imposition of a precensorship was restriction on the freedom of expression. But the more important question which the Court had to decide was, whether restrictions enacted in the interests of public order and not solely imposed to prevent the undermining of the security of, or tending to overthrow, the State, were valid. The majority of the Court declared the provisions in the laws totally void and expressed the opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Art. 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. The Court further held that the law imposing restrictions within and outside the constitutionally permissible limits was void in its entirety and that it was not severable. It was apparently as a result of the Supreme Court's judgment that the Indian Constitution was amended, and the First Amendment replaced Art. 19(2) by substituting the following provision:
Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law, or 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 interests of the security of the State, friendly relation with foreign States, public order, decency, or morality, or in relation to contempt of court, defamation or incitement to an offence.

It must be noted that, after the First Amendment, both Art. 19(2) of the Indian Constitution and S. 12(2)(a) of our Constitution permit the making of provision imposing restrictions on freedom of expression in the interests of public order. In our Constitution, as we have already observed, it is provided that any law making provision in the interests of public order shall not be held to be inconsistent with or in contravention of s. 12 which protects freedom of expression. For the purpose of the case now before us, the question which we

have to decide is whether the offence of sedition created by s. 283(1)(a) of our Penal Code is a law which makes provision in the interests of public order. We must admit that the question is one which bristles with difficulties and requires a careful study, not only of our own case-law on the subject but also of the developments in the law of sedition in England and particularly in India, where the interpretation of s. 124-A of the Indian Penal Code which makes provisions substantially similar to those contained in s. 283(1)(a) of our Penal Code was the subject of many learned judicial pronouncements. In England, in the latter part of the eighteenth century, the common law of seditious libel was said to constitute any written censure upon public men for their conduct as such, or upon the laws, or upon the institutions of the country. [See Stephen, History of the Criminal Law of England, Vol. II, 348 (1883)]. In fact, the publication of any written matter defamatory of the government was said to constitute seditious libel. But after 1832, the gist of the offence was considered to be the tendency of the publication to cause public disturbance, and prosecutions for seditious libel became rare. The law was definitely settled in Reg. vs. Sullivan (1869) 11 Cox C.C. 44. In that case, Fitzgerald, J., said:
Sedition embraces all those practices whether by word, deed or writing, which are calculated to disturb the public tranquility of the State and lead ignorant persons to subvert the Government. The objects of sedition generally are to induce discontent and insurrection, to stir up opposition to the Government and to bring the administration of justice into contempt, and the very tendency of sedition is to invite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or disaffection, to create public disturbances or to lead to civil war, to bring into hatred or contempt the sovereign and government, the laws or the constitution of the realm and generally all endeavours to promote public disorder.

The law was thus finally settled and nothing short of incitement to disorder could be said to constitute sedition. We shall now turn to our own case-law. The case of Rex vs. Millien (supra).was decided in 1949. In that case, the Supreme Court had no difficulty in accepting that an incitement to disorder or violence was at the bottom of the offence of sedition in England. But it held that, under the law of Mauritius (which was then a British Colony), it was not a necessary ingredient of the offence of sedition that the publication should be calculated to incite people to commit violence. In his judgment, Neerunjun, Ag. J., (as he then was) said:
This Court has no power to stretch the clear meaning of a Statute, it is bound by certain rules of legal interpretation especially when these are set down by a superior jurisdiction. In the case of Rex vs. Wallace Johnson (1940, 1 A.E.R. 241) on appeal from the Gold Coast where the law on sedition is similar to ours, the Judicial Committee of the Privy Council decided that the colonial text being sufficiently clear, the elements of the offence being therein defined, it was not necessary to prove an intention to cause violence. In taking as authority the decision in Rex vs. Wallace Johnson the Court is not interpreting our law with foreign precedents. The Privy Council in that case set down general principles this Court has no power to ignore. Applying those principles to our law we have no option but to rule that seditious intent in our law does not mean an intent to cause disorder or violence. However much this proposition may seem retrograde or offend our cultural pride, I repeat this Court cannot do otherwise than rule that this is the state of the law

The decision of the Court in Millien's case was also to the effect that the wrong test had been applied in Levieux and anor. vs. Rex [1911 MR 25] in which it was said that our law of sedition was taken from the English law and must be interpreted according to English decisions.

In view of the similarity which exists between s. 283(1)(a) of our Penal Code and s. 124-A of the Indian Penal Code it is necessary, for our own guidance, to refer briefly to certain decisions of the Indian Courts on the subject of sedition. In Niharendu Dutt Mazumdar vs. Emperor, A.I.R. 1942, F.C. 22, which was decided before India acceded to independence, the Federal Court had to interpret Rule 34(6)(e) of the Defence of India Rules which made an act prejudicial and liable to imprisonment if it was intended or was likely to bring into hatred or contempt, or to excite disaffection towards His Majesty or Crown representative or the Government established by law in British India or in any other part of His Majesty's Dominions. The Federal Court held that, under the Rule, mere words spoken, however abusive they might be, in the absence of an appeal to use force were not criminal. In his judgment, Sir Maurice Guyer, C.J., noted the change which had taken place in England in regard to the law of seditious libel, and observed that it was a change in the substance of the law, although the letter remained the same. He expressed the view that a corresponding change in the understanding of s. 124-A of the Indian Penal Code should take place and quoted with approval the statement of Fitzgerald, J., in Reg. vs. Sullivan (supra). The learned Chief Justice realized that if the section were to be read literally, even a criticism of the existing Government or an expression of a desire for a different system might be an offence and a large number of persons would be guilty of sedition. Commenting on this decision, the authors of the Law of Sedition in India (Indian Law Institute), 1964, write at page 32:
The decision was ahead of the times. The learned judge postulated freedom of speech as the right of a subject. He said that it was the right of the speaker to criticise the Governor and ministers and that he might even advocate for a change in the system of the Government. The days were long gone where mere defamation of the person could be regarded as sedition. If it was alleged that the Governor acted in disregard of his special responsibilities under the Constitution, it was an allegation against the Governor in his political capacity and therefore it was not seditious.

In 1947, in Emperor vs. Sadashin Narayan, A.I.R. 1947, P.C. 82, the Privy Council disapproved the Federal Court's decision, holding that there was no analogy between the law of seditious libel as evolved by judicial decisions in England and the statutory offence designed by the legislature in India, and that the statutory offence should be interpreted according to the letter of the enactment. It must be observed that the question for determination was: what words could be taken as exciting disaffection against the Government or bringing or attempting to bring it into contempt or hatred. The Federal Court of India was of the opinion that only the words having a tendency to provoke disorder could be supposed to have that effect. But the Privy Council said that such tendency had not been mentioned in the section and was therefore not an ingredient of the offence. In Kedarnath Singh vs. The State of Bihar, A.I.R. 1962, S.C. 955, which was decided after India acceded to independence and after the First Amendment to the Constitution, to which we have already referred, the Supreme Court of India held that s. 124-A of the Indian Penal Code was constitutional. But to come to its decision, it felt bound to prefer the meaning given to the section by the Federal Court of India to the meaning given to it by the Privy Council. The Supreme Court accepted that s. 124-A was capable of two interpretations, namely the one given by the Privy Council and the one given by the Federal Court. It said that it is clear that either view can be taken and can be supported on good reasons. The Privy Council had given a literal construction to the section divorced from all the antecedent background in which the law of sedition had grown in England, while the Federal Court had taken into consideration the developments in the English law of sedition. The Supreme Court observed that, if

the meaning given by the Privy Council was adopted, the section would be much beyond the permissible limits of restrictions which the State was empowered to impose under article 19(2) of the Constitution. But, on the other hand, if the meaning given to the section by the Federal Court was accepted, the section would be in accordance with the position under English law and with the Constitution. The Supreme Court held that when a provision of law was capable of two interpretations, one of which made it constitutional and the other unconstitutional, the interpretation which made it constitutional should be preferred. The gist of the offence, the Supreme Court said, is incitement to disorder or tendency or likelihood of public disorder or the reasonable apprehension thereof. In each case the Court had to determine whether the words in question had the pernicious tendency and the utterer had the intention of creating public disorder or disturbance of law and order. It said:
A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, as long as he does not incite people to violence

There is another Commonwealth case to which we should like to refer. It is the case of Chike Obi vs. D.P.P. (1961) A.N.L.R. 186. Dr. Chike Obi was charged before the High Court of Lagos with sedition and the question which arose was whether the law of sedition as it appeared in the Criminal Code of Nigeria had been invalidated by the Nigerian Constitution. The question was referred to the Supreme Court in pursuance of s. 108 of the Constitution. In the majority judgment, which was read by Ademola, F.C.J., the Court pointed out that an incitement to violence was not a necessary ingredient of the offence and quoted with approval R. vs. Wallace Johnson, (1940) A.C. 231. It stated that disaffection connoted enmity and hostility, estranged allegiance, disloyalty, hostility to constituted authority or to a particular form of political Government and concluded that, in the light of that definition, the alleged publication was seditious as it was intended, by malignant criticisms, to subject the Government to hatred and contempt or to incite disaffection against it. Criticisms of this type, the Court said, were not permitted because by their nature they tended to affect public order. The Court then held that the fundamental human rights had not in any way invalidated the law of sedition as contained in ss. 50 and 51 of the Criminal Code. We must here observe that the law of sedition in Nigeria is analogous to our own law on the subject and that the provisions of the Nigerian Constitution relating to the protection of fundamental rights are similar to the provisions of our own Constitution. Commenting on the Obi case, Gaius Ezejiofor writes in his book Protection of Human Rights under the Law (Butterworths, 1964) at page 197:
Nor is the soundness of the decision in the Obi case free from doubt. As we have seen, the Chief Justice quoted with approval the then Gold Coast case in R. vs. Wallace Johnson in which the Privy Council held that incitement to violence was not a necessary ingredient of the offence in the Colony. In the United Kingdom the law of sedition, as defined by Sir James Stephen in his Digest, has been judicially modified by making incitement to violence the principal requirement of the offence. Again, the Canadian Criminal Code contains no definition of intention for the purposes of the crime, but the Supreme Court has also adopted the view that an intention to promote violence is an essential element of the crime. (See Boucher vs. R., (1951) 2 D.L.R. 396; (1951) S.C.R. 265). The reason for this modification is that a right enforcement of Stephen's definition (which is usually found reproduced in the Criminal Codes of colonies and former colonies including Nigeria and the Gold Coast) might easily lead to the prohibition of reasonable political criticism, however the words hatred, contempt and disaffection are defined. According to the Privy Council this gloss had no application in the Gold Coast because the law as contained in the Code was no doubt designed to suit the circumstances of the Colony. It is probably true that such a law was necessary in the colony, but it is doubtful if it is reasonably justifiable in Nigeria as a democratic state.

It is interesting to note that, in support of its view, the Supreme Court of Nigeria in the Obi case cited a statement of the Supreme Court of India in State of Madras vs. Row (1952) S.C.R. 597. As no mention is made in the judgment of the case of Kedarnath Singh vs. State of Bihar (supra) which was decided by the Supreme Court of India in 1961, we must assume that the judgment in Obi's case was delivered before that in the Kedarnath Singh's case, or that the attention of the learned Judges who heard Obi's case had not been drawn to it. We have no doubt in our own minds that if we were to give to s. 283(1)(a) of our Penal Code the meaning given to it by the learned judges who decided Millien's case and who allowed themselves to be guided by general principles laid down by the Privy Council for the interpretation of Colonial Legislationprinciples which one of the judges said he had no power to ignorewe must hold that the section is beyond the permissible limits of restrictions which the Legislature is empowered to impose under s. 12 of the Constitution. We must here observe that Millien's case was decided in 1949 at a time when Mauritius was still a British Colony. Would the learned judges have come to the same conclusion if they had to interpret the section to-day, in the light of the provisions contained in sections 2 and 12 of our Constitution? This is a question on which it is not necessary for us to speculate. But we cannot overlook the fact that, since the judgment in Millien's case, Mauritius has become a sovereign democratic state, that it now has a Constitution which is the supreme law of the country, and that it is expressly provided in that Constitution that, if any other law is inconsistent with the Constitution, that other law shall, to the extent of inconsistency, be void. Even in those pre-Independence days when Colonial Legislation had to be interpreted strictly according to principles of interpretation laid down by the Privy Council, one of the judges who decided Millien's case and held that seditious intent in our law did not mean an intent to cause disorder or violence, realized that such a proposition may seem retrograde or offend our cultural pride. We find ourselves in exactly the same position as the Supreme Court of India when the case of Kedarnath Singh came before it. Here we are with a section of our Penal Code which is capable of two interpretations: the one given by the Supreme Court in Millien's case and which is in accordance with the rule of interpretation laid down by the Privy Council, and the other given by the Supreme Court in Levieux's case in which it was stated that our law of sedition was taken from the English law on the subject and should be interpreted in accordance with English decisions. It is clear to us that the section is so worded that either view can be taken and can be supported. In Millien's case, the Court gave a literal construction to the section and particularly to the word disaffection which was taken to be synonymous to enmity, hostility, disloyalty. In Levieux's case, the Court said that the section must be interpreted in accordance with English decisions in cases of seditious libel. We have already shown that under English law, incitement to disorder is an ingredient of the offence. It is therefore clear that s. 283(1)(a) of our Penal Code, as it is worded, is not per se inconsistent with the Constitution. Whether or not it is constitutional will depend upon the interpretation which is given to it. It is now generallyaccepted by the highest courts of many countries that, when a provision of law is capable of two interpretations, one of which makes it constitutional and the other unconstitutional, the interpretation which makes it constitutional should be preferred. We respectfully agree. This is a view which this court has already endorsed in the case of Police vs. Moorba S.C. Record No. 16276 of 1971 in which the doctrine of presumed constitutionality was applied.

We realize, as Sir Maurice Guyer, C.J., did in Mazumdar's case (supra) that if the section were to be read literallyas the Privy Council said it should be readeven a criticism of the existing government or an expression of a desire for a different system might be an offence and a large number of persons be guilty of sedition. We respectfully agree with the Supreme Court of India that the gist of the offence is incitement to disorder or tendency or likelihood of public disorder or the reasonable apprehension thereof, and we hold accordingly. By giving to section 283(1)(a) of our Penal Code Ordinance an interpretation which takes into consideration the developments in the English law on the subject, we have given our law of sedition a new status; we have removed from it the imprint of a Colonial Law and have made it the law of a sovereign democratic state. We have, at the same time, brought it within the permissible limits of restrictions on the freedom of expression, as a law enacted in the interests of public order and reasonably justifiable in a democratic state. We now return to the subject-matter of the appeal which is before us. We have read the incriminated article headed Le voil cette fois, la Dictature. It can be divided into two parts. In the first part, the writer, in a language which the learned magistrates have described as offensive, questions the reason behind the Government's silence since the end of the strikes and the return to normal conditions, and wonder whether it shows the Government's weakness or whether something sinister is being planned. The writer then makes a number of vague references to certain rumours and information such as revolutions du palais, luttes d'influences within the Cabinet, public exchanges between two political leaders, the strike, threats of communal unrest and the Government's attempt, before disappearing from the public scene, to create chaos and disorder with the complicity of certain persons and with the consent of selfish capitalists. In the second part, the writer deals with rumours concerning Government's intention to outlaw the M.M.M. party and the Unions affiliated to it. The article ends with a note in which the author stresses the fact that he has been unable to receive official confirmation of the information contained in the article. He asks himself whether the information is true and concludes by saying that his paper will welcome and print in good place any denial Government would care to communicate to it. In the course of his arguments, Mr. Bourdet submitted that, from the words used in the article, the magistrates should have drawn the irresistible inference of seditious intent. He said that the magistrates wrongly took what was, in fact, the respondents' motive for their intention. The gist of what the magistrates say in the case they have stated is that they have found as a fact that the respondents had a genuine grievance against Government because it had taken what they thought were undemocratic measuressuch measures having already affected them adverselyand that they sincerely believed that Government had the intention of banning the M.M.M. party and the Unions affiliated to it and thought that the public should be informed. We agree that motive is different from intention; but we fail to see how the magistrates can be blamed for having considered the respondents' motive to determine what was their intention. In fact, the learned magistrates did exactly what the learned judges who tried the case of Dabee and anor. vs. The Queen [1965 MR 167] [Sir Rampersad Neerunjun, C.J., and Rivalland, S.P.J., as he then was] said should be done. We quote from pages 171 and 172 of the judgment:
The existence of a grievance is not necessarily an excuse for, or an answer to an attempt to arouse feelings of ill-will and hostility, but it must be taken into consideration when determining the question whether an accused party had the seditious intent. We do not think that it was safe to discard the possibility that the appellants

when publishing the impugned article intended to bring the complaints into the open to seek redress.

We have carefully considered the incriminated article in the light of Mr. Bourdet's submissions and also of the case as stated by the Magistrates, and have come to the conclusion that the trial court was perfectly justified, on the facts found by them, in reaching the conclusion that the respondents' seditious intent had not been established and in dismissing the information. The appeal is accordingly dismissed. Appellant: Crown Attorney. R. Bourdet, Temporary Principal Crown Counsel.

Respondents abided by the decision of the court. Record No. 16599