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1919 Supreme(SC) 26
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, VISCOUNT CAVE, LORD PHILLIMORE, SIR JOHN EDGE, AND MR. AMEER ALI.
ANNIE BESANT - Appellant
Versus
ADVOCATE-GENERAL OF MADRAS - Respondents
On Appeal from the High Court at Madras.
Decided On : May 13. 1919.
Solicitor for appellant:D. Graham Pole. Solicitor for respondent: Solicitor, India Office.
The cancellation of a security dispensation by a magistrate is an administrative act, not a judicial one, and is therefore not subject to a prior hearing or review via certiorari when the governing statute expressly limits judicial interference in such proceedings.
Headnote:(A) Indian Press Act, 1910 - Sections 3, 4, 17, and 22 - Code of Criminal Procedure, 1898 - Section 435 - Government of India Act, 1858 - Section 65 - Power of Magistrate to cancel dispensation of security - Nature of the act - Administrative vs. Judicial - Reviewability of administrative orders - Writ of Certiorari - Forfeiture of security for objectionable content - Ultra vires - The power to "cancel or vary any order" under the proviso to Section 3(1) of the Indian Press Act, 1910, includes the power to cancel an order that originally dispensed with the requirement of a security deposit.
(B) Administrative vs. Judicial Act - The act of a magistrate in requiring, varying, or withdrawing a security deposit is an exercise of administrative discretion and not a judicial act. Consequently, the requirement of a prior hearing under the principles of natural justice does not apply as it would to a condemnation or a judicial proceeding.
(C) Reviewability and Certiorari - Where a statute expressly provides that no proceeding shall be called in question by any court except through a specific provided mechanism, such a provision excludes the jurisdiction of the court to issue a writ of certiorari or exercise statutory revisional powers over administrative acts.
(D) Forfeiture and Content - Forfeiture under Section 4(1)(c) is justified if the published material has a natural tendency to excite hatred, contempt, or disaffection towards the government or a class of subjects, taking into account the target audience and local conditions.
Facts of the case:
The appellant, owner of a printing press and publisher of a newspaper, was initially granted a dispensation from depositing security. This dispensation was later cancelled by a magistrate, who ordered a security deposit. Following this, the local government declared the security and copies of the newspaper forfeited on the grounds that several published passages were objectionable under the law. The appellant challenged both the magistrate's order to deposit security and the subsequent forfeiture order.
Findings of Court:
The court found that the magistrate had the authority to cancel the dispensation. The act was administrative, meaning it was not subject to the same procedural requirements as judicial orders. The statutory bar in Section 22 of the Act precluded the use of a writ of certiorari or revisional jurisdiction to challenge the administrative order. Regarding the forfeiture, the court upheld the finding that the articles were calculated to bring a class of subjects and the government into hatred and contempt.
Issues: Whether the magistrate could cancel an order of dispensation; whether such cancellation was a judicial or administrative act; whether the High Court had jurisdiction to review the order via certiorari or revision; and whether the forfeiture order was valid based on the content of the newspaper.
Ratio Decidendi: The power to cancel an order of dispensation is an administrative function; as such, it does not require a prior hearing and is not reviewable by the court when the statute expressly limits the means of challenging proceedings under the Act. Forfeiture is valid if the material is likely to excite hatred or contempt, a determination that depends heavily on local context and the nature of the audience.
Result: Both appeals dismissed with costs.
Legal Category Hierarchy
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administrative law
- administrative discretion
- judicial review
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constitutional law
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freedom of expression
- liberty of the press
- legislative competence
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freedom of expression
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practice and procedure
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writs
- certiorari
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revision
- criminal revision
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writs
Judgement
Consolidated Appeals by special leave from two judgments of the High Court, both dated October 18, 1916.
By one judgment appealed from, Abdur Rahim (officiating C.J.), and Ayling and Seshagiri Aiyar JJ., sitting as a Special Bench, under s. 17 of the Indian Press Aet(L, of 1910), dismissed a petition by which the appellant, Annie Besant, prayed for the revision and setting aside (a) of an order made by the Chief Presidency Magistrate of Madras on May 22, 1916, to deposit Rs. 2000 as security in terms of s. 3, sub-s. 1, of the Indian Press Act; and (b) of the forfeiture of the said deposit by a declaration made by the Governor-in-Council by notice dated August 25, 1916, under s. 4, sub-s. 1, of the said Act.
By the other judgment the same Court, in exercise of its ordinary re visional jurisdiction, dismissed a petition by the appellant under s. 107 of the Government of India Act (5 & 6 Geo. 5, c. 61, Imp.), and
s. 435 of the Code of Criminal Procedure (Act V. of 1898), praying for revision of the order of May 22, 1916, above mentioned.
The facts and the relevant statutory enactments appear from the judgment of their Lordships.
The proceedings upon the petition under s. 17 of the Indian Press Act, 1910, are reported at I. L. R. 39 M. 1085, the more material of the extracts from New India which gave rise to the forfeiture being set out at pp. 1090 to 1100. The Court unanimously held that three of the extracts were within the description contained ins. 4, sub-s. 1, clause (c), of the Act, and a majority held that four further extracts were within that clause. It was not contended at the hearing that there was power under s. 17 to review the order of May 22, 1916.
The proceedings upon the separate petition for revision of that order are reported at I. L. R. 39 M. 1164. The judgments of the officiating Chief Justice and Seshagiri Aiyar J. were to the effect that " the magistrate had no power to demand security after having dispensed with it at the time of the declaration," but they were of opinion that in requiring the appellant to give security under the Indian Press Act, s. 3, he was not acting in a judicial but in an administrative or executive capacity. " If an executive or administrative officer acts in excess of his powers, such acts are not liable to be reviewed by the High Court, whether by means of a writ of certiorari or under its ordinary revisional powers. The only remedy open to an aggrieved person in such cases would be by action." Ayling J. held that s. 3, sub-s. 1, " was designed to give the magistrate the fullest discretion both as regards requiring security and determining the amount, and this discretion is to be exercised not once for all, but may be revised from time to time." On the assumption, however, that the opposite view was correct, the learned judge held that the petition was barred by s. 22 of the Act. He added that even if the Court had a discretionary jurisdiction to interfere, it was a question whether the circumstances of the case were such that it should be exercised.
The appellant applied to the High Court for certificates to enable her to appeal from the said judgments to His Majesty in Council, but the High Court refused the application, holding that there was no appeal as of right. The present appeals were preferred by special leave.
1919. Feb. 4, 17, 18, 20 ; March 3, 14. Upjohn K.C., C. R. Christie K.C., and W. Ingram for the appellant. The High Court rightly held that under the Government of India Act, 1915, s. 106, clause 17of its Letters Patent, and the Letters Patent of 1800 constituting the Supreme Court of Madras, it had jurisdiction to issue a writ of certiorari ; although no writ of certiorari has ever been issued by the Madras High Court, other High Courts with similar powers have issued the writ e.g., in Nundo Lal Bose v. Calcutta Corporation . (( 1885) I. L. R. 11 C. 275.) Sect. 22 of the Indian Press Act, 1910, is not sufficiently express in its terms to exclude the re vi
