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CALCUTTA HIGH COURT
Emperor - Appellant
Versus
Hemendra Prosad Ghosh & Anr. - Respondent
Decided On : 07-06-1939
Sedition - Council of Ministers in Bengal - Section 124-A, I.P.C., Section 17, I.P.C. - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section 124-A, I.P.C., which defines seditious acts, and Section 17, I.P.C., which defines the term 'Government.' The court also referred to various sections of the Government of India Act, 1935, including Sections 49, 50, 51, and 59, which define the executive authority and the role of the Governor and the council of ministers. The court's decision was influenced by the interpretation of these provisions, particularly in determining the authority and functions of the council of ministers in Bengal.
Fact of the Case:
The references arose from alleged seditious attacks on the Council of Ministers in Bengal, leading to complaints under Section 124-A, I.P.C. and questions regarding the authority and functions of the council of ministers under the Government of India Act, 1935.
Finding of the Court:
The court found that the council of ministers in Bengal did not constitute the 'Government' within the meaning of Sections 17 and 124-A, I.P.C., and that they were advisors to the Governor rather than subordinate officers with executive authority.
Issues: The issues revolved around the authority and status of the council of ministers in Bengal, their relationship with the Governor, and whether their actions constituted seditious acts under Section 124-A, I.P.C.
Ratio Decidendi: The court's decision was based on the interpretation of the Government of India Act, 1935, particularly Sections 49, 50, 51, and 59, in determining the authority and functions of the council of ministers and their relationship with the Governor.
Final Decision: The court concluded that the council of ministers in Bengal did not fall within the definition of 'Government' under the relevant sections of the Indian Penal Code and the Government of India Act, 1935.
JUDGMENT
1. The two articles out of which these two references arise are alleged to be attacks upon the Council of Ministers in Bengal and it is complained that they are seditious and in breach of Section 124-A, I.P.C., which provides:
Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards His Majesty or the Government established by law in British India, shall be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
2. Section 17, I.P.C., provides:
The word 'Government' denotes the person or persons authorized by law to administer executive government in any part of British India,
3. The questions asked are: Under case No. 2 of 1939,(a) whether the Hon'ble Minis, ters of Bengal are subordinate officers to H.E. the Governor within the meaning of Section 49, Government of India Act, 1935? (b) whether the Council of Ministers should be considered as "Government established by law."
4. Under case No. 3 of 1939, (a) whether the ministry of a Province can be said to form a part of the executive Government of that Province in the sense implied by Section 17, I.P.C.?
The reference is under the first part of Section 432, Criminal P.C., and asks us specific questions but does not enable us to deal completely and finally with the matter. The Government of India Act, 1935, defines the rights and duties of ministers and their relation to the Government of a Province.
5. Section 49(1) of the Act provides that
'the executive authority' (which is the same thing in our opinion as legal authority to administer executive Government of a Province) 'shall be exercised on behalf of His Majesty by the Governor either directly or through officers subordinate to him.'
6. Section 59 (1) provides:
All executive action of the Government of a Province shall be expressed to be taken in the name of the Governor.
7. Section 50 (1) provides:
There shall be a council of ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion.
8. Section 51 (1) provides:
The Governor's ministers shall be chosen and summoned by him, shall be sworn as members of the council, and shall hold office during his pleasure.
9. Sub-section (4) of Section 51 provides:
The question whether any, and if so what, advice was tendered by ministers to the Governor shall not be inquired into in any Court.
10. Sub-section (5) of Section 51 provides:
The functions of the Governor under this Section with respect to the choosing and summoning and the dismissal of ministers, and with respect to the determination of their salaries, shall be exercised by him in his discretion.
11. Section 53 provides that the Instrument of Instructions which it is proposed that His Majesty shall issue to the Governor shall be laid before Parliament previous to issue. In para. 8 of the Instrument of Instructions issued to the Governor of Ben gal it is stated:
In all matters within the scope of the executive authority of the Province, save in relation to functions which he is required by or under the Act to exercise in his discretion, our Governor shall in the exercise of the powers conferred upon him be guided by the advice of his ministers, unless....
12. Section 59(3) provides:
The Governor shall make rules for the more convenient transaction of the business of the Provincial Government, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Act required to act in his discretion.
13. There is no specific provision in the Government of India Act nor in any other Statute or Act which we are aware of vesting the ministry with executive f
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