Perspective Publications (P) Ltd.
& ANR Vs. State of Maharashtra [1968] INSC 280 (19 November 1968)
19/11/1968 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
RAMASWAMI, V.
CITATION: 1971 AIR 221 1969 SCR (2) 779
CITATOR INFO :
R 1971 SC1132 (53) R 1972 SC 989 (8,10,11)
E&R 1978 SC 727 (42) F 1978 SC 921 (12,15) RF 1992 SC 904 (9)
ACT:
Contempt of Court--Difference between
defamation of judge and contempt of court---Judge's brother having financial
interest in a firm--If sufficient to establish legal bias.
HEADNOTE:
One T filed a suit claiming Rs. 3 lacs
damages for libel against a newspaper. The suit was decreed by a Judge of the
Bombay High Court. Thereafter, an article was published in a publication
brought out by the first appellant and of which the second appellant was the
editor, printer and publisher.
The article contained insinuations that there
was a connection between a loan of Rs. 10 lacs, granted to a firm in which the
Judge's brother was a partner, and the judgment m the defamation case; and that
the Judge knew, about the loan having been granted to the firm.The appellants
were found guilty of contempt of court.
In appeal to this Court, it was contended
that: (1) In the article no aspersion was cast on the integrity of the Judge
nor was any imputation of dishonesty made; (2) Proceedings for contempt for
scandallzing a Judge have become obsolete, the proper remedy being for
the/judge to take action for libel; (3) The allegations were made in the bona
fide belief that they were truthful and there was no evidence that the Judge
did not know about the transaction;
and (4) The statements, if at all, amounted
to a charge of bias against the Judge and could not be regarded as contempt.
HELD: (1 ) The obvious implications and
institutions made in the various paragraphs of the article, read as a whole,
create a strong judicial impact on the mind of the reader about the Jack of
honesty, integrity and impartiality on the part of the Judge in deciding the
defamation suit. [785 C---D] It is open to anyone to express fair, reasonable
and legitimate criticism of any act or conduct of a Judge in his judicial
capacity or even to make a proper and fair comment on any decision given by
him. But, if an article attributes improper motives to the Judge, it not only
transgresses the limits of fair and bona fide criticism but has a clear
tendency to affect the dignity and prestige of the court and would amount to
contempt of court. [785 A, 791 F] (2) It will not be right to say that
committals for contempt of court for scandalizing the court have become
obsolete. [791 D] (a) But such summary jurisdiction by way of contempt must be
exercised with great care and caution and only when its exercise is necessary
for the proper administration of law and justice. [791 E] (b) There is a
distinction between a mere libel or defamation of a judge and what amounts to
contempt of court. The tests are: (i) Is the impugned publication a mere
defamatory attack. on the Judge or is it calculated to interfere with the due
course of Justice or the proper administration of law by his court? and (ii) Is
the wrong done to the Judge personally or is it done to the public? The
publication of a disparaging 780 statement will-be an injury to the public if
it tends to create an apprehension in the minds of the people regarding the
integrity, ability or fairness of the Judge or to deter actual and prospective
litigants from placing complete reliance upon the courts administration of
justice, or if it is likely to cause embarrassment in the mind of the Judge
himself in the discharge of his judicial duties. [791 G--H;
792 A--C] B.R. Reddy v. State of Madras,
[1952] S.C.R. 425, Re:
The Editor. Printer and Publisher of the
'Times of India' and in re: Aswini Kumar Ghose v. Arabinda Bose, [1953] S.C.R.
215, Brahm Prakash Sharma v. State of U.P., [1953] S.C.R. 1169; Re: Hira Lal
Dixit & Ors. [1955] 1 S.C.R. 677 and State of M.P. v. Revashankar [1959]
S.C.R. 1367, followed.
Re: Read and Huggonson, 2 Atk. 471, In the
matter of a Special Reference from the Bahama Islands [1893] A.C. 138, McLeod
v. St. Aubyn, [1899] A.C. 549, Reg. v. Gray, [1900] 2 Q.B.D. 36; Rex v. Editor
of the New Statesman (1928) 44 T.L.R. 301; Ambard v. Attorney-General for
Trinidad and Tobago, (.1936) A.C. 322, Debi Prasad Sarma .v. The 'King Emperor.
70 I.A. 216 and Reg. v. Commissioner of Police the Metropolis, Ex parte
Blackburn, (1968) 2 W.L.R. 1206, referred to.
(3) Assuming good faith can be held to be a
defence in a proceeding for contempt, in the present case, no attempt was made
to substantiate 'that the facts stated in the article were true or were rounded
on correct data. On the other hand, it was established that some of the
material allegations were altogether wrong and incorrect. [792 E-F] B.R.
Reddy's case, [1952] S.C:R. 425, referred to.
(4) The mere fact that his brother happened
to have a pecuniary interest in the firm could not per se establish that the
Judge would also have a financial interest therein so as to constitute legal
bias. [792 H; 793 A]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.159 of 1966.
Appeal by special leave from the judgment and
order dated November 24, 1965 of the Bombay High Court in Criminal Misc.
"Application No. 323 of 1965.
S.C. A garwala, for the appellant.
M.S.K. Sastri and S.P. Nayar, for the
respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal from the judgment of the Bombay High Court passed
in exercise of ordinary original civil jurisdiction by which the ,appellants
were found guilty of having committed contempt of Mr. Justice Tarkunde in his
judicial capacity and of the court. Appellant No. 2 D.R. Goel, who is the
Editor, Printer and Publisher of Perspective Publications (P) Ltd. --appellant
No. 1, was sentenced to simple imprisonment for one month together with fine
amounting to Rs. 1,000/-, in default of payment of fine he was to undergo
further simple imprisonment 781 for the same period. The appellants were also
directed to pay the costs incurred by the State. On behalf of the first
appellant it has been stated at the bar that the appeal is not being pressed.
The background in which the impugned article
was published' on April 24, 1965, in a weekly periodical called
"Mainstream" which is a publication brought out by the first
appellant may be set out. In the year 1960 a suit was filed by one Krishnaraj
Thackersey against the weekly newspaper "Blitz" and its Editor and
others claiming Rs. 3 lacs as damages for libel. The hearing in that suit
commenced on the original side of the Bombay High Court on June 24, 1964.
The delivery of the judgment commenced on
January 19, 1965 and continued till February 12, 1965. After June 24, 1964,
that suit was heard from day to day by Mr. Justice Tarkunde. The suit was
decreed in the sum of Rs. 3 lacs.
An appeal is pending before a division bench
of the High Court against that judgment.
The impugned article is stated to have been
contributed by a person under the name of "Scribbler" but appellant
No.
2 has taken full responsibility for its
publication. Its heading was "STORY OF A LOAN and Blitz Thackersey Libel
Case". It is unnecessary to reproduce the whole article which appears
verbatim in the judgment of the High Court.
The article has been ingeniously and cleverly
worded. The salient matters mentioned in the article are these: After paying a
tribute to the Indian judiciary the writersays that according to the report in
"Prajatantra" a Gujarati paper architects Khare-Tarkunde Private
Limited of Nagpur, hereinafter called "Khare-Tarkunde" (which is
described a Firm in the article) got a loan facility of Rs. 10 lacs from the
Bank of India on December 7, 1964. The partners of Khare-Tarkunde included the
father, two brothers and some other relations of Justice Tarkunde who awarded a
decree for Rs. 3 lacs as damages against Blitz and in favour of Thackersey. It
is pointed out that the date on which Rs. 10 lacs loan facility was granted by
the Bank of India was about five and a half months after the Thackersey-Blitz
libel suit had begun and just over six weeks before Justice Tarkunde began
delivering his "marathon judgment" on January 19, 1965. It is then
said that for Rs. 10 lacs loan facility granted to Khare-Tarkunde, the New
India Assurance Co. stood guarantee and that the two Directors of the Bank of
India who voted in favour of the credit of Rs.
10 lacs being granted to Khare-Tarkunde were
Thackersey and Jaisinh Vithaldas (believed to be a relative of Thackersey).
Next it is stated that one of the Directors
of the New India Assurance that stood guarantee for the loan facility was N.K.
Petigara, who was also a senior partner of M/s. Mulla & Mulla Craigie Blunt
& Caroe, Solicitors of Thackersey in the Blitz-Thackersey Libel Case before
Justice Tarkunde 4 Sup. CI/69--17 782 Emphasis is laid on the fact that Khare-Tarktunde
had a capital of Rs. 5 lacs only and the balance sheet of the firm of June 1964
revealed indebtedness to various financiers to the tune of Rs. 14 lacs. Thus
Khare-Tarkunde is stated to be "lucky to get against all this a handsome
loan of Rs. 10 lacs from the Bank of India". The writer refers to the Code
among college teachers and university professors of not examining papers when
their own children and near relatives sit for examination and adds that Justice
Tarkunde himself will recognize the rightness of such a Code. Referring to the
unimpeachable integrity and reputation of judges of the Bombay High Court, the
writer proceeds to say "there must not be allowed to be raised even the
faintest whisper of any misgiving on that score." Paragraph 24 deserves to
be reproduced :- "If Sri Krishna Thackersey did not lay it bare at the
time of the suit that he was one of the sponsors of a contract of which the
judge's relations were the beneficiaries, it is up to the Chief Justice of the
Supreme Court and the Bombay High Court including Justice Tarkunde as also the
ever vigilant members of the Bar to consider all the implications of these
disclosures which have distressed a common citizen like me, so that the finest
traditions of our judiciary may be preserved intact." A petition was filed
before the Bombay High Court by the State of Maharashtra pointing out that the
aforesaid article contained scandalous allegations and was calculated to
obstruct the administration of justice and constituted gross contempt of court.
The article purported to state certain facts relating to the transaction
between Khare-Tarkunde and the Bank which were false and there were several
mis- statements and suppression of facts some of which were:
(a) The article wrongly stated that the father
of Mr. Justice Tarkunde was a partner in Khare Tarkunde; and (b) The article
falsely described the transaction as a 'loan' by the Bank to Khare- Tarkunde.
In fact the said transaction was only a guarantee given by the Bank which
undertook to pay to the Govt. any amount not exceeding Rs. 10 lacs in the event
of Khare- Tarkunde being unable to perform its obligations. The Bank was
secured by a further guarantee given by the New India Assurance Co. Ltd.
undertaking to secure the Bank in the event of the Bank having to pay the said
amount or any part thereof.
Appellant No. 2 who also happens to be a
Director and Principal Officer of the first appellant, filed a reply raising
some objections of a legal and technical nature ,and took up the position that
the impugned article was based on a report published in "Prajatantra"
from which all the facts stated in the article were incorporated. It was
asserted that certain 'major facts' had been verified by the appellant and
found to be true. It was admitted that upon reading the petition for taking
contempt proceedings it was found by appellant No. 2 that there were certain
incorrect statements in the article. It was claimed that the article had been
published in a bona fide belief that whatever was stated in the article in
"Prajatantra" was true. The intention was to convey to the public at
large that it was incumbent on the plaintiff Thackersey and Pettigara, one of
the partners of Mulla & Mulla etc., his attorneys to inform Justice
Tarkunde that the plaintiff had voted for a resolution of the Board of
Directors of the Bank of India which, without reasonable doubt, would help
Khare-Tarkunde in which Tarkunde happened to be a brother of the Judge.
The High Court analysed the implications of
the facts stated in each paragraph of the impugned article in great detail and
observed :-- " ............ reading the article as a whole, taking care
not to read into it anything more than its plain language implies and making
every allowance for literary style and rhetorical flourish expressions which
were often used in the arguments for the.
respondents it is impossible to avoid the
conclusions that this article exceeds the bounds of fair and reasonable
criticism. In so far as it suggests that there is some sort of casual
connection between the granting of the loan to M/s. Khare-Tarkunde Pvt. Ltd.,
and the judgment of Mr. Justice Tarkunde in the Blitz- Thackersey case, it
clearly attempts to lower the learned judge in his judicial capacity not to
mention the fact that it would also tend to shake the confidence of the lay
public in the High Court and impair the due administration of justice in that
Court. In so far as there is a suggestion made be it ever so faint that Mr.
Justice Tarkunde knew or must have known of the loan to his brother's firm
before he delivered the judgment in the case, the article is malicious and 'not
in good faith." The High Court also examined the misstatements and
inaccuracies in the impugned article and held that there was no foundation for the
suggestion that Khare-Tarkunde was an impecunious concern and therefore was
"lucky" to get the handsome loan nor for the suggestion that either
Thackersey and his co-Directors in the Bank of India or Thackersey's solicitor
and his co-Directors in the New India Assurance Co. went out of their way to
grant accom- 784 modation to Khare-Tarkunde. The High Court found no basis for
the insinuation that there was any connection between the loan and the judgment
in the Blitz-Thackersey case or that Justice Tarkunde knew or might have Known
about any loan having been granted to his brother's firm. No attempt was made
to justify these suggestions in the return or in the argument before the High
Court and all that was urged was that the words used by contestable did not give
rise to the said imputations or innuendos and that the contemnor was only
trying to communicate to the public at large what has been stated before. It is
needless to refer to the other points raised before and decided by the High
Court because none of them has been argued before us.
In this appeal, counsel for appellant no. 2
has made some attempt to establish that no aspersion was cast on the integrity
of Justice Tarkunde in the article nor was any imputation of dishonesty made.
His second contention is that proceedings for contempt for scandalising a Judge
have become obsolete and the proper remedy in such a situation is for the Judge
to institute action for libel. Thirdly, it is said that there was no evidence
before the High Court that Justice Tarkunde did not know about the transaction
or the dealings between the firm in which his brother was a partner and the
bank of which Thackersey was a director.
If, it is submitted, the allegations made in
the article were truthful or had been made bona fide in the belief that they
were truthful the High Court ought not to have found appellant no. 2 guilty of
contempt. At any rate, according to counsel, the statements contained in the
article only made out a charge of bias against the Judge and if such a charge
is made it cannot be regarded as contempt.
On the first point our attention has been
invited to the paragraphs in the article containing expression of high opinion
held by the writer of the judiciary in India. It is suggested that his attempt
was only to make a fair and legitimate criticism of the proceedings in the
Thackersey suit against the "Blitz" weekly. It has been emphasised in
the article that the damages which were awarded to the tune of Rs. 3 lakhs were
almost punitive and that it was a rare phenomenon that the plaintiff
(Thackersey) did not step into the witness box and also a permanent injunction
had been granted preventing Blitz from printing anything based on the subject
matter of litigation. The law involving freedom of press fully warranted such
criticism of a judgment or of the proceedings in a suit in a court of law.
It is true that the writer of the article
could exercise his right of fair and reasonable criticism and the matters which
have been mentioned in some of the paragraphs may not justify any proceedings
being taken for contempt but the article read as a whole leaves 785 no doubt
that the conclusions of the High Court were unexceptionable. It was a skillful
attempt on the part of the writer to impute dishonesty and lack of integrity to
Justice Tarkunde in the matter of Thackersey-Blitz suit, the imputation being
indirect and mostly by innuendo that it was on account of the transaction and
the dealings mentioned in the article that the suit of Thackersey was decreed
in the sum of Rs. 3 lakhs which was the full amount of damages claimed by
Thackersey. It may be that the article also suggests that Thackersey and his
,attorneys were to blame inasmuch as they did not inform the Judge about the
transactions of Khare Tarkunde with the Bank of India with which Thackersey was
associated in his capacity as a director but that cannot detract from the
obvious implications and insinuations made in various paragraphs of the article
which immediately create a strong prejudicial impact on the mind of the reader
about the lack of honesty, integrity and impartiality on the part of Justice
Tarkunde in deciding the Thackersey-Blitz suit.
On the second point counsel for appellant no.
2 has relied a great deal on certain decisions of the Privy Council- and the
Australian and American courts. In the matter of a Special Reference from the
Bahama Islands(1) a letter was published in a colonial newspaper containing
sarcastic allusions to a refusal by the Chief Justice to accept 'a gift of
pineapples. No judgment was given by the Privy Council but their lordships made
a report to Her Majesty that the impugned letter though it might have been made
subject of proceedings for libel was not, in the circumstances, calculated to
obstruct or interfere with the course of justice or the due administration of
,law and, therefore, did ,not constitute contempt of court. In that case there
was no question of scandalising the court nor had any imputation been made
against the Chief Justice in respect of any judicial proceedings pending before
him or disposed of in his court. It is the next decision of the Privy Council
in McLeod v. St.Aubyn(2) on which a great deal of argument has been built up
before us that the courts, at least in England, have stopped committing anyone
for contempt for publication of scandalising matter respecting the court after
adjudication as well as pending a case before it. That case came by way of an
appeal from an order of the Acting Chief Justice St. Aubyn of the Supreme Court
of St. Vincent committing one McLeod to prison for 14 days for alleged contempt
of court. It was said inter alia in the impugned publication that in Mr.
Trifford the public had no confidence and his locus tenons, Mr. St. Aubya was
reducing the judicial character to the level of a clown.
There were several other sarcastic and
libelous remarks made about the Acting Chief Justice. While recognizing
publication of scandalous matter of the court itself ,as a head of contempt of
court as (1) [1893] A.C. 138.
(2) [1899] A.C. 549.
786 laid down by Lord Hardwicke in Re: Read
and Huggonson(1), Lord Morris proceeded to make the oft-quoted observation
"committals for contempt of Court 'by itself have become obsolete in this
country even though in small colonies consisting principally of coloured
population committals might be necessary in proper cases". Only a year
later Lord Russel of Killowen C.J., in The Queen v. Gray(2) reaffirmed that any
act done or writing published calculated to bring a court or a judge of the
court in contempt, or to lower his authority, was a contempt of court. The
learned Chief Justice made it clear that judges and courts were alike open to
criticism and if reasonable argument or expostulation was offered against any
judicial act as contrary to law or the public good no court could or would
treat that as contempt of court but it was to be remembered that the liberty of
the press was not greater and no less than the liberty of every subject. In
that case it was held that there was personal scurrilous abuse of a judge and
it constituted contempt.
All the three cases which have been discussed
'above were noticed by the Privy Council in Debi Prasad Sharma & Ors. v.
The King Emperor(3) where contempt
proceedings had been taken in respect of editorial comments published in a
newspaper based or a news item that the Chief Justice of Allahabad High Court
in his administrative capacity had issued a circular to judicial officers
enjoining on them to raise contributions to the war fund and it was suggested
that he had done a thing which would lower the prestige of the court in the
eyes of the public. This is what was said at page 224 :- "In In re a
Special Reference from the Bahama Islands [1893] A.C. 138, the test applied by
the very strong Board which heard the reference was whether the words
complained of were in the circumstances calculated to obstruct or interfere
with the course of justice and the due, administration of the law. In Reg. v.
Gray [1900] 2Q.B. 36 it was shown that the offence of scandalising the court
itself was not obsolete in this country.
A very scandalous attack had been made on a
judge for his judicial utterances while sitting in a criminal case on circuit,
and it was with the foregoing opinions on record that Lord Russel of Killowen
C.J. adopting the expression of Wilmot C.J. in his opinion in Rex v. Almon
(1765) Wilmot's Notes of Opinions 243, which is the source of much of the
present law on the subject, spoke of the article complained of as calculated to
lower the authority of the judge." It is significant that their lordships
made a distinction between a case where there had been criticism of the
administrative act of (1) 2 Ark. 471.
(2) [1900] 2 Q.B.D. 36.
(3) 70 I.A. 216.
787 a Chief Justice and an imputation on him
for having done or omitted to have done something in the administration of
justice. It is further noteworthy that the law laid down in McLeod v. St.
Aubyn(1) was not followed and it was emphasised that Reg. v. Gray(2) showed
that the offence of scandalising the court itself was not obsolete in England.
In Rex v. Editor of the New Statesman(3) an
article had been published in the New Statesman regarding the verdict by Mr.
Justice Savory given in a libel action brought by the Editor of the
"Morning Post" against Dr. Marie Slopes (the well known advocate of
birth control) in which it was said, inter alia, "the serious point in
this case, however, is that an individual owning to such views as those of Dr.
Marie Stores cannot 'apparently hope for a
fair hearing in a Court presided over by Mr. Justice Avory--and there are so
many Avorys". On behalf of the contemnor McLeod v. St. A ubyn(1) was
sought to be pressed into service. The Lord Chief Justice in delivering the
judgment of the Court said that the principle applicable to such cases was the
one stated in Reg. v. Gray(2) and relied on the observations of Lord Russel at
p. 40. It was observed that the article imputed unfairness and lack of
impartiality to a judge in the discharge of his judicial duties. The gravamen
of the offence was that by lowering his authority it interfered with the
performance of his judicial functions. Again in Ambard v. Attorney General for
Trinidad and Tobago(4) the law enunciated in Reg. v. Gray(2) by Lord Russel of
Killowen was applied and it was said at page 335:
"But whether the authority and position
of an individual judge, or the due administration of justice, is concerned, no
wrong is committed by any member of the public who exercises the ordinary right
of criticising, in good faith, in private or public, the public act done in the
seat of justice. The path of criticism is a public way; the wrong headed are
permitted to err therein; provided that members of the public abstain from
imputing improper motives to those taking part in the administration of justice,
and are genuinely exercising a right of criticism, and not acting in malice, or
attempting to impair the administration of justice, they are immune. Justice is
not a cloistered virtue; she must be allowed to suffer the scrutiny and
respectful, even though spoken, comments of ordinary men." It was,
however, held that there was no evidence upon which the court could find that
the alleged contemnor had exceeded fair and temperate criticism and that he had
acted with untruth or malice (1) [1899] A .C. 549.
(2) [1900] 2 Q.B.D. 36.
(3) [1928] 44 T.L.R. 301.
(4) [1936] A.C. 322.
788 and with the direct object of bringing
the administration of justice into disrepute.
Lord Denning M.R. in Reg v. Commissioner of
Police of the Metropolis, Ex parte Blackburn (No..2)(1) made some pertinent
observations about the right of every man, in Parliament or out of it, in the
Press or over the broadcast, to make fair and even outspoken comment on matters
of public interest. In the words of the Master of Rolls, "those who comment
can deal faithfully with all that is done in a court of justice. They can say
that we are mistaken, and our decisions erroneous, whether they are subject to
appeal or not. All we would ask is that those who criticise us will remember
that, from the nature of our office, we cannot reply to their criticism. We
cannot enter into public controversy. Still less into political controversy. We
must rely on our conduct itself to be its own vindication." In that case
Mr. Quintin Hogg had written an article in "Punch" in which he had
been critical of the Court of Appeal and had even made some erroneous
statements. But reading of the article the salient passage of which is set out
in the judgment of the Master of the Rolls makes it quite clear that there was no
attempt to scandalise the Court and impute any dishonourable or dishonest
motives or to suggest any lack of integrity in any particular Judge.
Oswald in his book on the Contempt of Court
has expressed the view that it would be going a great deal too far to say that
commitments for contempt of court by scandalising the Court itself have become
obsolete, and that there does not seem to be any good reason for ignoring the
principles which govern the numerous early cases on the subject.
The American and the Australian cases viz.,
John D.
Pennekamp and The Miami Herald Publishing Co.
v. State of Florida(2) and Bell v. Stewart(a) to which reference h.as been made
on be- half of appellant No. 2 can hardly be of much assistance because in this
country principles have become crystallized by the decisions of the High Courts
and of this Court in which the principles followed by English Courts have been
mostly adopted.
We would now advert to the decisions of this
Court. It was held in Bathina Ramakrishna Reddy v. The State of Madras(4) that
the fact that the defamation of a Judge of a subordinate court constitutes an
offence under s. 499 of the Indian Penal Code did not oust the jurisdiction of
the High Court to take cognizance of the act as a contempt of court.
In that .case in an article in a Telugu
weekly it was alleged that the Stationary Sub-Magistrate of Kovvur was known to
the people of the locality for harassing (1) [1968].2 W.L.R. 1206.
(2) 328 U.S. 331.
(3 ) 28 Com. L.R. 419.
(4) [1952] S.C.R. 425.
789 litigants in various ways etc. Mukherjea,
J., (as he then was) who delivered the judgment described the article as a
scurrilous attack on the integrity and honesty of a judicial officer. It was
observed that if the allegations were false, they could not undermine the
confidence of the public in the administration of justice and bring the
judiciary into disrepute. The .appellant there had taken the sole
responsibility regarding the publication of the article and was not in a
position to substantiate by evidence any of the allegations made therein. It
was held that he could not be said to have acted bona fide, "even if good
faith can be held to be a defence at all in a proceeding for contempt".
The decision in Re: The Editor, Printer and
Publisher of "The Times of India" and In re Aswini Kumar Ghose and
Anr. v. Arabinda Bose & Anr.(1) is very apposite and may be.next referred
to. In a leading article in "The Times of India" on the judgment of
this Court in Aswini Kumar Ghose v.
Arabinda Bose & Ant.(2) the burden was
that if in a singularly oblique and infelicitous manner the Supreme Court had
by a majority decision tolled the knell of the much maligned dual system
prevailing in the Calcutta and Bombay High Courts by holding that the right to
practise in any High Court conferred on advocates of the Supreme Court had made
the rules in force in those High Courts requiring advocates appearing on the
original side to be instructed by attorneys inapplicable to them. This is what
was said by Mahajan, J., (as he then was) speaking for the Court:
"No objection could have been taken to
the article had it merely preached to the courts of law the sermon of divine
detachment.
But when it proceeded to attribute improper
motives to the Judges, it not only transgressed the limits of fair and bona
fide criticism but had a clear tendency 'to affect the dignity and prestige of
this Court. The article in question was thus a gross contempt of court. It is
obvious that if an impression is created in the minds of the public that the judges
in the highest Court in the land act on extraneous considerations in deciding
cases, the confidence of the whole community in the administration of justice
is bound to be undermined and no greater mischief than that can possibly be
imagined." The Editor, Printer and Publisher of the newspaper tendered an
apology which was accepted; but this Court concurred in the expression of views
in Ambard v. Attorney General of Trinidad(3), a passage from which has already
been extracted. The guiding principles to be followed by courts in contempt
proceedings were enunciated in Brahma Prakash Sharma & Ors. v. The State of
(1) [1953] S.C.R. 215.
(2) [1953] S.C.R. 1.
(3) [1936] A.C. 322.
790 Uttar Pradesh(1). The judgment again was
delivered by Mukherjea, J., (as he then was) and the English decisions
including those of the Privy Council were discussed. It is necessary to refer
only to the principles laid down for cases of the present kind i.e.
scandalising the court. It has been observed that there are two primary considerations
which should weigh with the court when it is called upon to exercise summary
power in cases of contempt committed by "scandalising" the court
itself. In the first place, the reflection on the conduct or character of a
Judge in reference to the discharge of his judicial duties would not be
contempt, if such reflection is made in the exercise of the right of fair and
reasonable criticism which every citizen possesses in respect of public acts
done in the seat of justice. Secondly, when .attacks or comments are made on a
Judge or Judges disparaging in character and derogatory to their dignity, care
should be taken to distinguish between what is a libel on a judge and what
really amounts to contempt of court. If, however, the publication of the disparaging
statement is calculated to interfere with the due course of justice or proper
administration of law by such court, it can be punished summarily as contempt.
"it will be 'an injury to the public if it tends to create an apprehension
in the minds of the people regarding the integrity, ability or fairness of the
judge or to deter actual and prospective litigants from placing complete
reliance upon the court's administration of justice, or if it is likely to
cause embarrassment in the mind of the judge himself in the discharge of his
judicial duties. It is well established that it is not necessary to prove
affirmatively that there has been an actual interference with the
administration of justice by reason of such defamatory statement; it is enough
if it is likely, or tends is ,any way, to interfere with the proper
administration of law." In that case it was held that the contempt was of
a technical nature. This was based apparently on the reason that the Members of
the Bar who had passed a resolution attributing incompetency, lack of courtesy
etc. and had referred to complaints against two officers, one a Judicial
Magistrate and the other a Revenue Officer and had sent those complaints to the
District Magistrate, Commissioner and the Chief Secretary in the State and
secondly because very little publicity had been given to the statement.
In Re: Hira Lal Dixit & two Ors.(2) the
above principles were ,applied and reaffirmed. In that case words which had
been used in a poster which was published had the necessary implication that
the judges who decided in favour of the Government were rewarded by the
Government with appointments to this Court. Although this case was not one of
scandalizing of the court but the question that was posed was whether the
offending passage was of such character and import or made in such circum- (1)
[1953] S.C.R. 1169.
(2) [1955] 1 S.C.R. 677.
791 stances as would tend to hinder or
obstruct or interfere with the due course of administration of justice by this
Court and it was answered in the affirmative and the contemnor was held guilty
of Contempt of Court. In State of Madhya Pradesh v. Revashankar(1) an
application was made under s. 528 of the Code of Criminal Procedure in certain
criminal proceedings containing serious aspersions against a Magistrate, Mr.
N.K. Acharya. Reliance was once again placed on Brahm Prakash Sharma's(2) case
and the principles laid therein. It was held that the aspersions which had been
made amounted to something more than a mere intentional personal insult to the
Magistrate; they scandalised the court itself and impaired the administration
of justice and that proceedings under the contempt of court could 'be taken
against the contemnor.
There can be no manner of doubt that in this
country the principles which should govern cases of the present kind are now
fully settled by the previous decisions of this Court.
we may re; state the result of the discussion
of the above cases on this head of contempt which is by no means exhaustive.
(1 ) It will not be right to say that
committals for contempt for scandalizing the court have become obsolete.
(2) The summary jurisdiction by way of
contempt must be exercised with great care and caution and only when its
exercise is necessary for the proper administration of law and justice.
(3) It is open to anyone to express fair,
reasonable and legitimate criticism of any act or conduct of a judge in his
judicial capacity or even to make a proper and fair comment on any decision
given by him because "justice is not a cloistered virtue and she must be
allowed to suffer the scrutiny and respectful, even though outspoken, comments
of ordinary men".
(4) A distinction must be made between .a
mere libel or defamation of a judge and what amounts to a contempt of the
court.
The test in each case would be whether the
impugned publication is a mere defamatory attack on the judge or whether it is
calculated to interfere with the due course of justice or the proper
administration of law by his court. It is only in the latter case that it wilt
be punishable as Contempt.
(1) [1959] S.C.R. 1367.
(2) [1953] S.C.R. 1169.
792 (5 ) Alternatively the test will be
whether the wrong is done to the judge personally or it is done to the public.
To borrow from the language of Mukherjea, J. (as he then was) (Brahma Prakash
Sharma's case)(1) the publication of a disparaging statement will be an injury
to the public if it tends to create an apprehension in the minds of the people
regarding the integrity, ability or fairness of the judge or to deter actual
and prospective litigants from placing complete reliance upon the court's
administration of justice or if it is likely to cause embarrassment in the mind
of the judge himself in the discharge of his judicial duties.
As regards the third contention no attempt
was made before the High Court to substantiate that the facts stated in the
article were true or were rounded on correct data. It may be that truthfulness
or factual correctness is a good defence in an action for libel, but in the law
of contempt there are hardly any English or Indian cases in which such defence
has been recognized. It is true that in the case of Bathina Ramakrishna
Reddy(2) there was some discussion about the bona fides of the person
responsible for the publication but that was apparently done to dispose of the
contention which had been raised on the point. It is quite clear that the
submission made was considered on the assumption that good faith can be held to
be a defence in a proceeding for contempt. The words "even if good faith
can be held to be a defence at all in a proceeding for contempt" show that
this Court did not lay down affirmatively that good faith can be set up as a
defence in contempt proceedings. At any rate, this point is merely of academic
interest because no attempt was made before the High Court to establish the
truthfulness of the facts stated in the article. On the other hand, it was
established that some of the material allegations were altogether wrong and
incorrect.
Lastly the submission that the statements
contained in the article made out only a charge of bias against the judge and
this cannot constitute contempt has to be stated to be rejected. It is a new
point and was never raised before the High Court. Moreover the suggestion that
the charge in the article was of legal bias which meant that Justice Tarkunde
had some sort of pecuniary interest in Khare-Tarkunde which had the
transactions with the bank of which Thackersey was a Director is wholly
baseless. Counsel had to agree that Justice Tarkunde was neither a shareholder
nor was there anything to show that he had any other interest m Khare-
Tarkunde. The mere fact that his brother happens (1) [1953] S.C.R. 1169.
(2) [1952] S.C.R. 425., 793 to have a holding
in it cannot per se establish that Justice Tarkunde would also have some
financial or pecuniary interest therein. It is not possible to accept nor has
such extreme position been taken by the counsel for appellant no.
2 that there is any bar to a brother or 'a
near relation of a judge from carrying on any business, profession or
avocation. The entire argument on this point is wholly without substance.
The appellant No. 2 showed no contrition in
the matter of publication of the impugned article. lie never even tendered an
unqualified apology. The High Court, in these circumstances, was fully
justified in punishing him for contempt of court and in awarding the sentence
which was imposed. In the impugned article there was a clear imputation of
impropriety, lack of integrity and oblique motives to Justice Tarkunde in the
matter of deciding the Thackersey-Blitz suit which, on the principles already
stated, undoubtedly constituted contempt of court.
The appeal fails and is hereby dismissed.
V.P.S. Appeal dismissed.
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