In The Matter of: Rustom Cawasjee
Cooper Vs. Union of India  INSC 129 (5 May 1970)
05/05/1970 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SHAH, J.C.
CITATION: 1970 AIR 1318 1971 SCR (1) 512 1970
SCC (2) 298
R 1971 SC1132 (54) R 1978 SC 727 (43) R 1978
SC1514 (12) R 1978 SC1675 (53,55,57,227) RF 1983 SC 361 (2,14)
Contempt of Court--Criticism of Court
At a public meeting held a few days after the
decision of this Court on the constitutional validity of the Banking Companies
(Acquisition of Transfer of Undertakings) Act 22 of 1969, K, a Minister in the
Central Government, was reported by newspaper$ to have made certain critical
remarks which, two petitioners before the Court contended constituted a serious
contempt of this Court. The petitioners swore an affidavit in support of their
petition based on the newspapers reports. As the Court considered that some of
the alleged observations, prima facie, exceeded the bounds of legitimate
criticism, a notice to show cause was issued to K. In reply K filed an
affidavit denying the main 'allegations and contending that he has been
misreported. In support of his own affidavit, three other affidavits were filed
by persons present at the public meeting. Although an application was made for
summoning the reporters present at the public meeting, the Court did not
consider it necessary to prolong the hearing of the case as on the material
before the Court there was nothing to contradict the affidavits which denied
the accuracy of the newspaper reports. However, while closing the case, the
While fair and temperate criticism of this
Court or any other court even if strong, may not be actionable, attributing improper
motives, or tending to bring judges or courts into hatred and contempt or
obstructing directly or indirectly the functioning of Courts is serious
contempt of which notice must and will be taken. Respect is expected not only
from those to whom the judgment of the Court is acceptable but also from those
to whom it is repugnant.
Those who err in their criticism by indulging
in vilification of the institution of Courts administration of justice and the
instruments through which the administration acts, should take heed for they
will act at their own peril.
ORIGINAL JURISDICTION: Writ Petition No. 300
M. C. Chagla, N. A. Palkhivala, B. Datta, J.
B. Dadachanji 0. C. Mathur and Ravinder Narain, for the applicants.
H. R. Gokhale and S. B. Wad, for the
The Judgment of the Court was delivered by
Hidayatullah, C.J. This petition is an off-shoot of the decision of this Court
on the constitutional validity of the Banking Companies (Acquisition of
Transfer of Undertakings) Act, being Act 22 of 1969. By a majority of ten
Judges against one, 'this 513 Court declared the Act to be unconstitutional.
The decision of the Court was given on February 10, 1970.
On February 13, 1970 a meeting was organised
by the Blitz National Forum at Vithalbhai Patel House at Delhi. it was presided
over by Mr. Mohan Kumarmanglam, an advocate of this Court. According to the
news items published the next day in the Hindustan Times, the Times of India
and the Patriot, a number of persons spoke about the Act and the decision of
this Court upon it. Among the speakers were Mr. R. K.Khadilkar, Minister in the
Ministry of Finance, Mr. A. S. R. Shari, Mr. Kumarman-glam, Mr. Prabhatkar, Mr.
S. M. Joshi, M.P., Mr. Bhupesh Gupta M.P. and Mr. V. K. Krishna Menon M.P.
These speakers criticised the decision. 'Mr. R. K. Khadilkar, the Hindustan
Times, reported, said that such decisions 'do not enhance the prestige of the
Judiciary', that such acts on the part of the highest Court 'will only
encourage Naxalites who have rejected constitutional means to bring about
socialism' and that the judgment would be treated with 'more and more contempt
by ordinary people'.
He observed that the situation would be
rectified by Parliament because ten Judges 'sitting in an ivory tower' could not
sit over the verdict of Parliament which represented the people. The Times of
India report said that Mr. Khadilkar said that 'Government would soon bring
forward an amending measure to offset the dangerous implications for social
progress of the community of the Supreme Court judgment in the Bank
Nationalization case, that if necessary the issue whether Parliament or the
Supreme Court was the final arbiter of the 'people's will should be referred to
the people and a mandate taken from them, and quoted Pandit Nehru that it was
never the intention of the Constitution to make the Supreme Court 'the third
house of correction'. The Patriot reported that 'attempts to utilize community
savings lying in banks for the welfare of the common man have been blocked by
the judiciary', that 'the Supreme Court could not be accepted as the third
chamber of legislature', that he did not "want to threaten the judiciary'
but Parliament would have 'to take steps to respect the feelings of the people
for stabilizing democracy'. Mr. Khadilkar also wished that the judiciary would
take note 'of the changing situation and helped to transform the society for
the benefit of the common man.' The three reports also described what the other
speakers had said at the meeting.
On February 26, 1970, two petitioners (Mr.
Krishna Rao Kaushik M.P. and Lt. Col. H. R. Pasricha) swore an information
based on the newspaper reports (with copies annexed) that a serious contempt of
this Court was committed by Mr. R. K. Khadilkar inasmuch as his speech had a
clear tendency to affect the dignity and prestige of this Court and there was
danger of grave Sup. Cl/70-4 514 mischief in the administration of justice and
the confidence of the whole community in the administration of justice was
bound to be undermined. Two affidavits sworn in support were based on the
As some of the alleged observations,
particularly those reported in the Hindustan Times, prima facie exceeded the
bounds of legitimate criticism, a notice was issued to Mr. Khadilkar to show
cause why action should not be taken against him. In reply Mr. Khadilkar filed
an affidavit denying the main allegations. He stated in his affidavit as
follows "I am a firm believer in the independence of judiciary as an
integral part of our democratic polity. I am in entire agreement with the
sentiment expressed in para 1 of the petition, viz. that the., dignity of the
Hon'ble Supreme Court must be maintained and the administration of justice
should not be allowed to be undermined in this country. I have a deep faith in
the social and economic objectives of our Constitution as enshrined in the
Directive Principles of the Constitution and the democratic and constitutional
methods of achieving them. Indeed, by oath of office, I am duty bound to uphold
these objectives of our Constitution." In reply to the specific charge of
making statements tending to vilify the Judges and to bring the' administration
of justice into hatred and contempt, Mr. Khadilkar denied having made the
statement attributed to him by the Patriot 'that attempts to utilize community
savings in the banks for the welfare of the common man had been blocked by the
judiciary' and the statements attributed to him by the Hindustan Times to the
effect that- "(a) The majority decision in the Bank case "did not
enhance the prestige of the Judiciary".
(b)Supreme Court judgment would be treated
with "more and more contempt by ordinary people".
(c)The judiciary had persistently failed to
interpret the Constitution and remained static.
(d)Ten Judges sitting in ivory tower could
not sit in judgment over verdict of Parliament which represented the
people." He asserted that he had said "......no aspersions should be
cast on the judiciary and event bough the decision had far-reaching consequences.
pointed out, that the judgment was cautiously worded and the learned Judges had
not challenged 515 the authority of Parliament to bring forward a measure of
He claimed to have added:
"No desire to cast aspersions on the
judiciary and would very much like to see its prestige remained high and its
image untarnished. We cannot, however, avoid pointing out wherein according to
us the decision is erroneous primarily by reason of its consequences for
'attempts at social reform." He explained what he had said by recalling
his speech. It is not necessary to quote his version. He complained that the
newspapers had picked out ideas but put them in their own words and that it was
not always possible to contradict the newspapers. He expressed-his views on the
institution of property as a fundamental right to which it is not necessary to
refer here. He concluded by saying-- "I may also state that in my comments
on the Bank Judgment, no improper motives were attached to the Hon'ble Judges.
There was no malice either against the Hon'ble Judges or the institution of
Supreme Court, the independence of which I honestly cherish." In support
of his own affidavit, Mr. Khadilkar exhibited affidavits from Messrs. Mohan
Kumarmangalam, A. S. R. Chari and S. M. Joshi. In these affidavits (which are
insissima verba) support was given to the denials of Mr. Khadilkar.
At an earlier hearing, the petitioners
promised to file affidavits of reporters etc. present at the meeting. At the
resumed hearing no affidavits were filed on the ground that the journalists
following their code of conduct did not wish to file any' material unasked and
request was, therefore, made to summon them in the interest of justice. We did
not think it necessary to prolong the hearing of the case as on the material
before us there was nothing to contradict the affidavits which deny the
accuracy of the newspaper reports.
We accordingly. closed the case for orders.
There is no doubt that the Court like any
other institution does not enjoy immunity from fair criticism. This Court does
not claim to be always right although it does not spare any effort to be right
according to the best of the ability, knowledge and judgment of the Judges.
They do not think themselves in possession of all truth or hold that wherever
others differ from then, it is so far error. No one is more conscious of his
limitations and fallibility than a Judge but because of his training and the
assistance he gets from learned counsel he is apt to avoid mistakes more than
5 1 6 Further the supremacy of a legislature
under a written Constitution is only within what is in its power but what is
within its power and what is not, when any specific act is challenged, it is
for the courts to say. If that were realised much of the misunderstanding would
be avoided and the organs of Government would function truly in their own
spheres-. We are constrained to say also that while fair and temperate
criticism of this Court or any other Court even if strong, may be actionable
attributing improper motives, or tending to bring Judges or courts into hatred
and contempt or obstructing directly or indirectly with the functioning of
Courts is serious contempt of which notice must and will be taken. Respect is
expected not only from those to whom the judgment of the Court is acceptable
but also from those to whom it is repugnant. Those who err in their criticism
by. indulging in vilification of the institution of Courts, administration of
justice and the instruments through which the administration acts, should take
heed for they will act at their own peril. We think this will be enough caution
to persons embarking on the path of criticism. With these words we order the
papers to be filed.
R. K. P. S.