IN RE: Shri S. Mulgaokar  INSC
47 (21 February 1978)
BEG, M. HAMEEDULLAH (CJ) BEG, M. HAMEEDULLAH
(CJ) KRISHNAIYER, V.R.
CITATION: 1978 AIR 727 1978 SCR (3) 162 1978
SCC (3) 339
Contempt of Court--Newspaper article
criticising the judges of Supreme Court--If contempt--Tests for determining
contempt of Court.
In its issue dated December 13, 1977, Indian
Express published a news item that the High Courts had reacted very strongly to
the suggestion of introducing: a code of judicial ethics and propriety and that
"so adverse has been the criticism that the Supreme Court Judges, some of
whom had prepared the draft code, have disowned it." In its issue dated
December 21, 1977 an article entitled "Behaving like a Judge" was
published which inter alia stated that the, Supreme Court of India was
"packed" by Mrs. Gandhi "with pliant and submissive judges
except for a few". It was further stated that the suggestion that a code
of ethics should be formulated by Judges themselves was "so utterly
inimical to the independence of the judiciary, violative of the Constitutional
safeguards in that respect, and offensive to the self-respect of the Judges as
to make one wonder how it was conceived in the first place." A show cause
notice had been issued to the Editor-in-Chief of the Newspaper why proceedings
for contempt under Art. 129 of the Constitution should not be initiated against
him in respect of the above two news items.
Dropping the contempt proceedings
HELD: Per Beg, C.J., Proceedings before the
Court should be dropped without any finding against any individual. [171 H]
1. National interest requires that all
criticisms of the judiciary must bestrictly rational and sober and proceed from
the highest motives without being coloured by any partisan spirit or tactics.
This should be a part of national ethics. [169 G-H]
2. The comments about Judges of the Supreme
Court suggesting that they lack moral courage to the extent of having
"disowned" what they had done or in other words, to the extent of
uttering what was untrue, at least verge on con-tempt. None could say that such
suggestions would not make Judges of this Court look ridiculous or even
unworthy, in the estimation of the public, of the very high office they hold if
they could so easily "disown" what they had done after having really
done it. [166 A-B]
3. Editors of responsible newspapers should
be, aware that it is courts of law and not newspaper readers who have to try
certain issues which Courts alone are empowered to determine. The character and
the legal consequences of any publication about conduct of Judges are certainly
matters for Courts to determine. Editors of newspapers are expected to know
also something of the special place of this Court in the Republic's Constitution
which amply protects its Judges so that they may not be exposed to opprobrious
attacks by either malicious or ignorant persons. [166 B-D]
4. The judiciary cannot be immune from
criticism. But, when that criticism is based on obvious distortion or grossmis-statement
and made in a manner which seems designed to lower respect for the judiciary
and destroy public confidence in it, it cannot be ignored. Though action for
contempt of Court, which is discretionary, should not be frequently or lightly
taken the Court should not abstain from using this weapon even when its use is
needed to correct 163 standards of behaviour in a grossly and repeatedly erring
quarter. It may be better in many cases for the judiciary to adopt a
magnanimously charitable attitude even when utterly uncharitable and unfair
criticism of its operations is made out of bona-fide concern for improvement.
But, when there appears some scheme and a design to bring about results which
must damage confidence in the judicial system and demoralize Judges of the
highest Court by making malicious attacks, anyone interested in maintaining
high standards of fearless, impartial, and unbending justice will feel
perturbed. [170 A-C]
5. Although, the question whether an attack
is malicious or ill intentioned, may be often difficult to determine, yet, the
language in which it is made, the fairness, the factual accuracy, the logical
soundness of it, the care taken in justly and properly analysing the materials
before the maker of it, are important considerations. Moreover, in judging
whether it constitutes a contempt of Court or not the Court is concerned more
with the reasonable and probable effects of what is said or written than with
the motives lying behind what is done. A decision on the question whether the
discretion to take action for contempt of Court should be exercised in one way
or the other must depend on the totality of facts and circumstances. [170 F-H]
Per Krishna Iyer, J. concurring Precedentially validated judicial norms
relating to contempt powers of Courts are : (1) The Court will act with
seriousness and severity where justice is jeopardized by a gross and/or
unfounded attack on the judges, where the attack is calculated to obstruct or
destroy the judicial process; (2) The Court must harmonise the constitutional
values of free criticism, and the need for a fearless curial process and its
presiding functionary, the judge. To criticise a judge fairly albeit fiercely,
is no crime but a necessary right. Where freedom of expression subserves public
interest in reasonable measure, public justice cannot gag it or manacle it; (3)
The Court must avoid confusion between personal protection of a libelled judge
prevention of obstruction of public justice
and the community's confidence in that great process. The former is not
contempt, but later is, although overlapping spaces abound; (4) The fourth
functional canon is that the Fourth Estate should be given free play within
responsible limits even when the focus of its critical attention is the court,
including the highest Court; (5) The fifth normative guideline for the Judges
to observe is not o be hypersensitive even where distortions and criticisms
overstep the limits, but to deflate vulgar denunciation by dignified bearing
and (6) The sixth consideration is that, if the Court considers the attack on
the judge or judges scurrilous, offensive, intimidatory or malicious beyond
condonable limits, the strong arm of the law must strike a blow on him who
challenges the supremacy of the rule of law by fouling its source and stream.
[173 E, F 174F, 175 D, E, F] R. v. Brett  C.L.R. 226, Queen v. Gray
 Q.B.D., 36, Mcleod v. St. Aubyn  A.C. 549, Ambard v.
Attorney-General for Trinidad  A.C. 322, R. V. Metropolitan Police
Commissioner ex. p. Blackburn  2, W.L.R. 1204, Sambhu Nath Jha v. Kedar
Prasad Sinha & Ors.
 3 SCR 183 it 189, Perspective
Publications Ltd. v State of Maharasthra 2 SCR 779 R. C. Cooper v. Union
of India  2 SCC 298, 301= 3 SCR 230, Brahma Prakash Sharma
&'Ors. v. The State of Uttar Pradesh  SCR 1169 at 1178-1180 C. K.
Daphtary & Ors. v. O. P. Gupta  Supp. SCR 76 at 92-93, Shri
Baradak-anta Mishra v. The Registrar of Orissa High Court and Anr.  1 SCC
374= 2 SCR 282, Bridges v. California  319 U.S. 252 at 279, 283,
284 Sheopard V. Maxwell  384 u.s 333, Nebraska Press Association v.
Stuarts  96 Sup. Ct.
2791 Los Angeles Times' Case'(314 U.S. 263)
and Craiq v. Harney (331 U.S. 367) referred to.
Per Kailasam, J. concurring Without hearing
the parties concerned, it is not right and proper to make any comments about
the facts of the case.
Contempt proceedings were dropped without
calling upon the counsel for the respondents. [189G] 164
ORIGINAL JURISDICTION : In Re : S. Mulgaokar.
V. M. Tarkunde and A. N. Goyall for the
S. N. Kacker Solicitor General, Mr. R. N.
Sachthey and Miss A. Subhashini for the Sol. Genl.
Dr. L. M. Singhvi, D. Bhandari and S. K. Jain
for the intervener.
The following Orders of the Court were
delivered BEG, C. J.-The matter before us arises out of a publication in the
Indian Express newspapers dated 13th December, 1977.
Some people perhaps believe that attempts to
hold trials of everything and everybody by publications in newspapers must
include those directed against the highest Court of Justice in this country and
its pronouncements. If this is done in a reasonable manner, which presupposes
accuracy of information about a matter on which any criticism is offered, and
arguments are directed fairly against any reasoning adopted, I would, speaking
for myself, be the last person to consider it objectionable even if some
criticism offered is erroneous. In Bennett Coleman & Co. & Others v.
Union of India & Ors.(1) I had said (at
p. 828) "John Stuart Mill, in his essay on "Liberty", pointed
out the need for allowing even erroneous opinions to be expressed on the ground
that the correct ones become more firmly established by what may be called the
'dialectical' process of a struggle with wrong ones which exposes errors.
Milton, in his "Areopagitica" (1644) said :
'Though all the winds of doctrine were let
loose to play upon the earth, so Truth be in the field, we do injuriously be
licensing and prohibiting to misdoubt her strength. Let her and Falsehood
grapple; whoever knew Truth put to the worse, in a free and open encounter
?...... Who knows not that Truth is strong, next to the Almighty; she needs no
policies, no stratagems, no licensings to make her victorious; those are the
shifts and defenses that error makes against her power.........
Political philosophers and historians have
taught us that intellectual advances made by our civilisation would have been
impossible without freedom of speech and expression. At any rate, political
democracy is based on the assumption that such freedom must be jealously
guarded. Voltaire expressed a democrat's faith when he told an adversary in
arguments 'I do not agree with a word you say, but I will defend to the death
your right to say it'. Champions of human freedom of thought and expression
throughout the ages, have realised that intellectual paralysis creeps over a
Society which denies, in however subtle a form, due freedom of thought and
expression to its members.
(1)  2 S.C.R. 757 @ 828-29.
165 Although our Constitution does not
contain a separate guarantee of Freedom of the Press, apart from the freedom of
expression and opinion contained in Article 19(1) (a) of the Constitution, yet,
it is well recognised that the Press provides the principal vehicle of
expression of their views to citizens. It has been said 'Freedom of the Press
is the Ark of the Covenant of Democracy because public criticism is essential
to the working of its institutions. Never has criticism been more necessary
than today, when the weapons of propaganda are so strong and so subtle. But,
like other liberties, this also must be limited'." I find, however, that
gross distortions of what was actually held by this Court in what is known as the
Habeas Corpus case (Additional District Magistrate, Jabalpur v. S. Shukla) (1)
are being made presumably to serve ulterior objects.
Some of these distortions have been exposed
by me in a separate statement of detailed reasons which place on record my
difference of opinion with the order ultimately passed by a majority in this
Court upon a case resulting from a news item published in the Times of India
recently. I have, unfortunately, now to take notice of a much milder
publication in the Indian Express newspaper, in which the following sentence
occurs about the supposed code of judicial ethics assumed wrongly to have been
drafted by some Judges of the Supreme Court :
"So adverse has been the criticism that
the Supreme Court Judges, some of whom had prepared the draft code, have
Judges of this Court were not even aware of
the contents of the letter before it was sent by me as Chief Justice of India
to Chief Justices of various. High Courts suggesting, inter-alia, that Chief
Justices could meet and draft a code of ethics themselves or through a
Committee of Chief Justices so as to prevent possible lapses from the path of
rectitude and propriety on the part of Judges. The error of the assumption that
Judges of the Supreme Court had any hand in drafting a code which I could have
had at the back of my mind when I sent my suggestions to Chief Justices of High
Courts was pointed out to the Editor of the Indian- Express in a letter sent by
the Registrar of this Court. No question of disowning the supposed code by any
Judge could, in the circumstances, arise. And, I had never "disowned"
the suggestions made by me. The Registrar of this Court, therefore, wrote to
inform the Editor of the misstatement which ought to have been corrected. In
reply, the Registrar received a letter from the Editor showing that the
contents of my letter to Chief Justices of High Courts, which were
confidential, were known to the Editor. Instead of publishing any correction of
the misstatement about the conduct of fudges of this Court, the Editor offered
to publish the whole material in his possession, as though there was an issue
to be tried between the Editor of the newspaper and this Court and the readers
were there to try it and decide it.
(1) A.I.R. 1976 S.C. 1207.
166 Comments about Judges of the Supreme
Court suggesting that they lack moral courage to the extent of having
"disowned" what hety had done, or, in other words to. The extent of
uttering what was untrue, at least verge on contempt. I do not think that
anyone could say that such suggestions would not make Judges of this Court look
ridiculous or even unworthy, in the estimation of the public, of the very high
office they hold if they would so easily "disown" what they had done
after having really done it The readiness with which possible correctness of
such a suggestion could be accepted by the Editor of a newspaper has its own
implications about the general fall in standards and values in life which
Judges ;Are supposed to share.
It seems to me that Editors of at least
responsible newspapers should be aware that it is Courts of law and not
newspaper readers who have to try certain issues which courts alone are
empowered to determine. Courts adopt a procedure designed to prevent, as far as
possible, unfair prejudices, irrelevancies, and untruths creeping in. The
character and the legal consequences of any publication about conduct of judges
are certainly matters for Courts to determine. Editors Of newspapers are
expected to know also something of the special place Of this Court in the
Republic's Constitution which amply protects its judges so that they may not be
exposed to opprobrious attacks by either malicious or ignorant persons.
This Court is armed, by article 129 of the
Constitution, with very wide and special powers, as a Court of Record, to
punish its contemptís. Elsewhere, I have said in an attempt to explain the
principle. of the Supremacy of the Constitution which this Court represents and
"Thus, the principle of Supremacy of the
Constitution requires for its maintenance in full force and vigour; firstly, an
executive which respects the judiciary and its verdicts and does not take away,
by the exercise of its constitutional powers, judicial powers to deal with the
rights of citizens even against executive actions of the State; and, secondly
the absence of any legislative interference with judicial functions in a manner
characterised by Dean Roscoe Pound as "legislative lynching" of
threats of any kind held out for reaching particular conclusions however
unpalatable they may be to any one Articles 121 and 211 of our Constitution,
prohibiting discussion of the conduct of a Supreme Court or a High Court Judge
in the discharge of his duties even by Parliament or a State Legislature,
except upon a motion for his removal by the constitutionally prescribed
procedure of addresses presented by each House of Parliament after proved
misconduct or incapacity of a Judge and resolutions by 2/3 majorities of each
House present and voting, are there in our Constitution to ensure this.
Can ordinary citizens do elsewhere, with
impunity, what members of Parliament cannot do in Parliament and legislators
cannot do in a State Legislature, and, if so, to what extent ? 167 Such
questions will have to be answered by Courts with reference to the facts of
particular cases if and when brought to their notice.
I also said there "'It would be a sad
day for the supremacy of the Constitution and for the Rule of Law, which it
implies, if malicious or ill informed persons, filled with the irrationality
involved in the spirit of what Dean Pound called "lynching" or
misguided zest or vindictiveness, acting in a manner freed from the restraints
of law or reason, were allowed to take upon themselves the task of passing
judgments on actions of others particularly of Judges performing judicial
functions. That would certainly sound the death knell of what Dean Roscoe Pound
calls "judicial justice" and the Rule of Law. The supremacy of the
Constitution can only be maintained when there is a spirit. of law abidingness
and discipline amongst citizens so that principles of law can be applied
scientifically to facts by Courts of Justice, which are the custodians of what
has been described by political philosophers as the abiding or continuing
"Real Will" of the whole nation embodied in the Constitution as
contrasted with the will or wishes of some or majority of citizens for the time
being expressed in legislatures or elsewhere.
Judges, who have taken oaths of allegiance to
the Constitution, are bound to uphold it, conscientiously without fear or
favour, affection or illwill'. They have to give their honest judgments without
caring for popular approval or disapproval." It seemed particularly
necessary to point out the protections enjoyed by this Court and its Judges in
order to safeguard the supremacy of the Constitution and the rule of law, which
speak through pronouncements of this Court, because it was found that, soon
after the incorrect stand taken by the Editor of the Indian Express, in the
manner mentioned above, an article appeared, entitled "Behaving like a
Judge", in this very newspaper. The suggestion that a code of ethics
should be formulated by judges themselves was characterised :in this article as
"so utterly inimical to the independence of the judiciary, violative of
the Constitutional safeguards in that respect, and offensive to the
self-respect of the Judges as to make one wonder how it was conceived in the,
first place". The writer of the article asserted a right of the public to know
what 1, at any rate, would be quite willing to tell him it the came to me as a
citizen wanting, 'in good faith, correct information.
The writer of an article of a responsible
newspaper on legal matters is expected to know that there is no constitutional
safeguard or provision realing to the independence of the judiciary which could
possibly prevent Judges themselves meeting to formulate a code of judicial
ethics or to constitute a committee to formulate a code of judicial ethics and
etiquette. This is what was suggested to Chief Justices of High Courts. Indeed,
in America, the American Bar Association has forniulated a code of this kind.
None has been formulated so far in this 168 country. A purported enactment
which tried to prevent Judges from meeting and formulating such a code of
ethics and etiquette so as to be clear about points on which, at times, there
is uncertainty in the minds of Judges themselves, would not be valid. Such a
purported law would offend against article 19(1)(a) of the Constitution.
Neither out Constitution nor our law, could
conceivably be infringed if Judges were to meet to device means to prevent
situations arising in which an accusing finger could be raised against the
conduct of a judge, whether inside or outside the Court, let alone involving
Constitutional provisions of Article 124 for his removal after an inquiry by a
body constituted under the Judges Inquiry Act, 1968. A code of this kind, if
scrupulously observed by all the Judges, could only enhance their independence
and prestige, and not injure these in any way whatsoever.
This article proceeds on the assumption that
there is already a formulated code of ethics sent to the Chief Justices. In
fact, nothing more than some suggestions or examples of the kind of conduct
which a possible code could deal with were sent to the Chief Justices. If there
was anything inappropriate, which could be found in those, suggestions, that
could be criticized and set right or discarded. Better suggestions could be
made and incorporated in a proper code of judicial ethics and etiquette, if
that could be framed. Indeed, in case the Judges felt bolder, it was suggested
that they could formulate a mode of action to deal with allegations which are
sometimes made baselessly or maliciously against Judges. If a Committee of
Chief Justices or Judges could consider the allegations made against any
individual Judge and was to find them baseless or malicious it would protect
the unfortunate Judge who was made a victim of malicious onslaughts. On the
other hand, if there was substance in the very serious allegations which are
sometimes made against Judges of High Courts (I am glad to say that their
number is extremely small and limited), the Committee could itself forward its
findings for appropriate action under Article 124 of the Constitution, to the
Central Government which could then set up a Committee of Inquiry. In this way,
in serious cases, the Judge concerned would get a consideration from his peers
as well as by the Committee provided by the Judges' Inquiries Act, 1968.
The article of 21 December, 1977, referred to
above, ends by attempting to make a distinction between the wonderful
performance of High Court Judges and the "disappointing" record of
the Supreme Court. It was suggested there that this was due to the fact that
the Supreme Court is "packed" by the former Prime Minister, Mrs.
Gandhi,, With pliant and submissive judges except for a few". Questions,
naturally, must arise in the, public mind : To what do they become "pliant"
? is it to the dictates or directions of the Executive? When and how have they
done so ? Had such insinuations any factual basis-which they, fortunately, do
not have would, at any rate, be among those who would say that the sooner this
Court is wound up the better it would be for the country.
169 The supposed writer of the article was
evidently so shaky about his ability to substantiate his suggestions, on the
strength of his own knowledge or opinion, that he took shelter behind views
alleged to have been expressed by Mr. Jayaprakash Narayan on some occasion to
the effect alleged by him in the article. We cannot pass any judgment upon such
views without giving notice to other parties, and with- out taking evidence
about the circumstances and the context, which largely determine the real
meaning, in which any opinion to that effect may or may not have been expressed
Mr. Jethmalani appearing for A. G. Noorani,
to whom we had issued no notice, tried to convince us that there was no
intention on the part of the writer of the article or the editor to injure the.
dignity or position of this Court but the intention was only to direct public
attention to matters of extreme importance to the nation. If this were so it
would be a desirable object. But, as we should all know, there are proper and
permissible ways of carrying out such an object and others which are not
permitted by law, or, at least by, elementary rules of fairness.
A reason which has also weighed with me in
dropping this and a similar earlier proceeding is that, we have been passing
through a period of exceptional strain and stress and excitement in this
country in which unusual remarks made have not been confined to what appears in
Indeed, extraordinary and surprisingly
erroneous 'statements, which could not be there if rules of judicial ethics
were formulated and strictly adhered to, have found place even in solemn
pronouncements of this Court on rare occasions. However, I do not want to
expatiate on that theme here. AR I can say is that, if this is a correct
observation, it would also disclose a need for rules of judicial ethics or
propriety for judges of even this august Court.
The statement made above by me should remove
the misapprehension, if there was really any in the mind of whoever wrote the
article in the Indian Express of 13th December, 1977, condemning my proposals
for framing a code of judicial ethics on the ground, inter alia, that it was
proposed to have one only for High Court Judges. I think that there should be
codes of ethics not merely for judges but for occupants of every office-high or
low-and for members of every profession and calling. Without such codes,
progress in right directions in any sphere becomes more uncertain and
problematic than it could be with such codes of ethics.
National interest requires that all
criticisms of the judiciary must be strictly rational and sober and proceed
from the highest motives without being coloured by any partisan spirit or
tactics. This should be a part of national ethics. Newspapers, in particular,
ought to observe such a rule imbued with what Montesquieu considered essential
for a healthy democracy : the spirit of "virtue".
They should, if they are interested in
promoting national welfare and progress, support proposals for framing correct
rules of ethics for every class of office holder and citizen in the country.
And, the judiciary must, in its actions and thoughts and pronouncements, bold
aloft the values and 12-21 1 SCR 178 170 the spirit of justice and truth
enshrined in the Constitution and soar high above all other lower loyalties and
alignments if it is to be truly independent.
The judiciary cannot be immune from
criticism. But, when that criticism is based on obvious distortion or gross
misstatement and made in a manner which seems designed to lower respect for the
judiciary and destroy public confidence in it, it cannot be ignored. I am not
one of those who thinks that an action for contempt of Court, which is
discretionary, should be frequently or lightly taken.
But at the same time, I do not think that we
should abstain from using this weapon even when its use is needed to correct
standards of behaviour in a grossly and repeatedly erring quarter. It may be
better in many cases for the judiciary to adopt a magnanimously charitable
attitude even when utterly uncharitable and unfair criticism of its operations
is made out of bona fide concern for improvement But, when there appears some
scheme and a design to bring a results which must damage confidence in our
judicial system and demoralize Judges of the highest court by making malicious
attacks, anyone interested in maintaining high standards of fearless,
impartial, and unbending justice will feel perturbed. I sincerely hope that my
own undisguised perturbation at what has been taking place recently is
unnecessary. One may be able to live in a world of logic detachment when
unjustified abuses are hurled at one's self personally, but, when the question
is of injury to an institution, such as the highest Court of justice in the
land, one cannot overlook its effects upon national honour and prestige in the
comity of nations. Indeed, it becomes a matter deserving consideration of all
serious minded people who are interested in seeing that democracy does not
flounder or fail in our country. If fearless and impartial courts of justice
are the bulwark of a healthy democracy, confidence in them cannot be permitted
to be impaired by malicious attacks upon them. However, as we have not
proceeded further in this case, I do not think that it would be fair to
characterize anything written or said in the Indian Express as really malicious
or ill-intentioned and I do not do so. We have recorded no decision on that
although the possible constructions on what was written there have been indicated
My opinion on matters touched by my learned
brother Krishna Iyer is that, although, the question whether an attack is
malicious or ill intentioned, may be often difficult to determine, yet, the
language in which it is made, the fairness, the factual accuracy, the logical
soundness of it, the care taken in justly and properly analysing the materials
before the maker of it, are important considerations. Moreover, in judging
whether it constitutes a contempt of Court or not we are concerned more with
the reasonable and probable effects of what is said or written than with the
motives lying behind what is done. A decision on the question whether the
discretion to take action for contempt of Court should be exercised in one way
or the other must depend on the totality of facts and circumstances.
After I had drafted my reasons for dropping
the proceedings I have had the benefit of perusing the views expressed by my
learned brother Kailasam. I would like to make it quite clear that there is,
171 as I have already mentioned above, no finding given here by me against any
person. I entirely agree that it would not be, fair or legal, without giving
opportunities to be heard to any persons against whom any aspersions are to be
cast or any remarks are to be made to record findings against them.
But, I think that we are entitled to express
our separate and individual opinions for dropping the proceedings now before
us. Indeed, my separate judgment in the case relating to the recent publication
in the Times of India case was a dissenting one. It was, therefore, all the
more necessary for me to record my reasons for a dissent. In the case now
before us, we are all agreed that the proceedings should be dropped.
Nevertheless, I think that we are completely justified in giving and are free
to give our separate reasons why this should be done either with or without
comment so long as we do not give any finding which may be unfair to anyone. I
would, therefore, like to make it clear once again that, as the matter has not
proceeded beyond putting the cause of the notice to learned counsel and hearing
only their prima facie reactions on whether the proceedings should be dropped
or not, we have accepted the submissions of Mr. Tarkunde and Mr. Jethmalani
that we should not proceed further, there is no question of recording any
finding against anyone and I have not done so.
It was, however, necessary to indicate the
way in which and reasons for which the notice was issued. It seems to me that
it was also necessary for me to refer to the reasons why I consider codes of
ethics'. and, in particular, judicial ethics are necessary. That is a matter of
conscience and of my understanding of what is right for a judge to do
"without fear or favour, affection or ill will".
The need for appropriate standards relating
even to what our judgments should or should not contain is so great that I
think this matter has to be taken up soon by Judges themselves at some stage or
other. Even the difference of views between learned judges of this Court on
such a question illustrates that. If we had clear rules of judicial practice
and ethics on even such matters our judgments would no, be encumbered with what
should not be there. If such rules are absent there may be, sometimes, serious
disagreement as to what a judgment should or should not contain. In such a
case, the only sound rule I could follow is to bear all those who are to be
beard according to law but no- others and then to express the opinion feel
bound by my conscience to express without allowing any other consideration to
weigh with me.
As I have already Pointed out above, I think
that the need for appropriate norms of conduct exists in practically every
sphere of life in which enlightened people strive to attain exalted ends
irrespective of consequences. If our separate statements of reasons for
dropping the proceedings before us succeed in at least emphasizing that need
they would not have been made in vain. I concur in the order that the
proceedings before us be dropped at this stage without any finding against any
KRISHNA IYER, J.-Silence is no sanctuary for
me when speech from the Chief Justice persuades my pen into a divergent course.
172 profoundly appreciate and deeply respect
his sense of hurt and obligation for explanation but prefer to travel along
another street in stating why agreed to jettison the contempt proceedings. My
judgment is more an explanation than an expostulation and certainly not a
reflection on the respondents.
We had unanimously directed that the above
proceedings in contemplation of contempt action be dropped but the fact that we
had converged to this conclusion did not rule out-as is no* appellant our
divergence in the process of reasoning.
Minds differ as rivers differ Such, perhaps,
in part, is the case here.
The contempt power, though jurisdictionally
large, is discretionary in its unsheathed exercise. Every commission of
contempt heed not erupt in indignant committal or demand punishment, because
judges are judicious, their valour non- violent and their wisdom goes into
action when played upon by a volley of values,. the least of which is personal
protection-for a wide discretion, range of circumspection and rainbow of public
considerations benignantly guide that power. Justice is not hubris; power is
not petulance and prudence is not pussilanimity, especially when judges are
themselves prosecutors and mercy is a mark of strength, not whimper of
weakness. Christ and Gandhi shall not be lost on the judges at a critical time
when courts are on trial and the people ("We, the People of India")
pronounce the final verdict on all national institutions. Such was the sublime
perspective, not plural little factors, that prompted me to nip in the bud the
proceeding started for serving a larger cause of public justice than punitive
action against a publisher, even assuming (without admitting) he was guilty.
The preliminary proceeding has been buried
publicly; let it lie in peace. Many values like free press, fair trial,
judicial fearlessness and community confidence must generously enter the
verdict, the benefit of doubt, without absolutist insistence, being extended to
Such are the dynamics of power in third
special jurisdiction. These diverse indicators, carefully considered, have
persuaded me to go no further. by a unilateral decision of the bench. This
closure has two consequences. It puts the lid on the proceedings without
pronouncing on the guilt or otherwise of the opposite parties. In a
quasi-criminal action, a presumption of innocence operates. Secondly, whatever
belated reasons we may give for our action, we must not proceed to substantiate
the accusation, if any. To condemn unheard is not fairplay.
Bodyline bowling, perhaps, is not cricket. So
my reasons do not reflect on the merits of the charge.
Poise and peace and inner harmony are so
quintessential to the judicial temper that huff, 'haywire' or even humiliation
shall not besiege; nor, unveracious provocation, frivolous persiflage nor
terminological inexactitude throw into palpitating tantrums the balanced
cerebration of the judicial mind. The integral yoga of shanti and net is so
much the cornerstone of the judicial process that criticism, wild or valid,
authentic or anathematic, shall have little purchase over the mentation of the
court. I quite realise how hard it is to resist, with 173 sage silence, the
shafts of acid speech; and, how alluring it is to succumb to the temptation of
argumentation where the thorn, 'not the rose, triumphs. Truth's taciturn
strategy, the testimony of history says, has a higher power than a hundred
thousand tongues or pens. in contempt jurisdiction, silence is a sign of
strength since our power is wide and we are prosecutor and judge.
Why did I concur in the short order ? Why do
I now strike a variant note to that of the learned Chief Justice ? I do not
take up the position that wandalising the Judges does not come within the
contempt clutches of the court. The Court's jurisdiction to initiate
proceedings and punish for constructive contempt suo motu crystallized in the
eighteenth century even though it is clear that the Court's inherent powers in
this regard were not as wide as Wilmot J.
made them out to be in his posthumously
published opinion in R. v. Almon  published in (1802) Wilmot's
Fortunately, the attacks on the judiciary
have been comparatively few in most countries, having regard to the character
assassination of the personnel in the other great branches of Government. Even
so, the law which punishes those who scandalize judges is as old as the Common
Law itself. The existence of the contempt power, however, does not obligate its
exercise on every occasion but triggers it only in special situations, not
What then are the complex of considerations
dissuasive of punitive action? To be exhaustive is a baffling project; to be
pontifical is to be impractical; to be flexible is to be realistic. What, then,
are these broad guidelines-not a complete inventory, but precedentially
validated judicial norms'? The first rule in this branch of contempt power is a
wise economy of use by the Court of this branch of its jurisdiction. The Court
will act with seriousness and severity where justice is jeopardized by a gross
and/or unfounded attack on the judges, where the attack is calculated to
obstruct or destroy the judicial process. The court is willing to ignore, by a
majestic liberalism, trifling and venial offenses-the dogs may bark, the
caravan will pass. The court will not be prompted to act as a result of an easy
irritability. Much rather, it shall take notice look at the conspectus of
features and be guided by a constellation at constitutional and other
considerations when it chooses to use, or desist from using, its power of
The second principle must be to harmonise the
constitutional values of free criticism, the fourth estate included, and the
need for a fearless curial process and its presiding functionary, the judge. A
happy balance has to be struck- the benefit of the doubt being given generously
against the judge, slurring over marginal deviations but severely proving the
supremacy of the law over pugnacious, vicious, unrepentant and malignant
contemners, be they the powerful press, gang-up of vested interests, veteran
columnists or' olympian establishmentarians. Not because the judge, the human
symbol of a high value, is personally (1) See further R. Dhavan :
"Contempt of Court and the Phillimore Committee Report" (1976) 5
Anglo American Law Review, 186 at 194 and the literature cited there.
174 armoured by a regal privilege but because
'be you-the contemner--ever so high, the law-the People's expression of
Justice-is above you. Curial courage overpowers arrogant might even as judicial
benignity, forgives errant or exaggerated critics. Indeed, to criticise the
judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed
in a democracy. For, it blesseth him that gives and him that takes Where
freedom of expression, fairly exercised, subserves public interest in
reasonable measure, public justice cannot gag it or manacle it,.
constitutionally speaking. A free people are
the ultimate guarantors of fearless justice. Such is the cornerstone of our
Constitution; such is the touchstone of our Contempt Power, oriented on the
confluencer of free speech and fair justice which is the scriptural essence of
our Fundamental Law. Speaking of the social philosophy and philosophy,, of law
in an integrated manner as applicable to contempt of court, there is no
conceptual polarity but a delicate balance, and judicial ' sapience' draws the
line. As it happens, our Constitution-makers foresaw the need for balancing all
these competing interests. Section 2(1) (c) of the Contempt of Courts Act, 1971
"Criminal contempt" means the
Publication (whether by words, spoken or written, or by signs, or by visible
representations, or otherwise) of any matter or the doing of any other act
whatsoever which- (i) scandalises or tends to scandalize, or lowers or tends to
lower the authority of any court.' This is an extremely wide definition. But,
it cannot be read apart from the conspectus of the constitutional provisions
within which the Founding Fathers of the Constitution intended all past and
future statutes to have meaning. All laws relating to contempt of court had,.
according to the provisions of Article 19(2),
to be 'reasonable restrictions" on the exercise of the right of free
speech. The courts were given the power-and, indeed, the responsibility-to
harmonize conflicting aims, interests and values. This is in sharp contrast to
the Phillimore Committee Report on Contempt of Court in the United Kingdom
(1974) bund. 5794 prs. 143-5, pp. 61-2) which did not recommend the defence of
public interest in contempt cases.
The third principle is to avoid confusion
between personal protection of a libeled judge and prevention of obstruction of
public justice and the community's confidence in that great process. The former
is, not contempt, the latter is, although overlapping spaces abound.
Because the law of contempt exists to protect
public confidence in the administration of justice, the offence will not be
committed by' attacks upon the personal reputation of individual judges as
such,. As Professor Goodhart has put it :
"Scandalising the court means any
hostile criticism of the judge as judge; any personal attack upon him,
unconnected with the office he holds, is dealt with under the ordinary rules of
slander and libel." 175 (See 'Newspapers and Contempt of Court (1935) 48,
Harv. L. R. 885, 898.) Similarly, Griffith, C. J. has said in the Australian
case of Nicholls(1) that :
"In one sense, no doubt, every
defamatory publication concerning a judge may be said to bring him into
contempt as that term is used in the law of libel, but it does not follow that
everything said of a judge calculated to bring him into contempt in that sense
amounts to contempt of Court." Thus in In the matter of a Special
Reference from the Bahama Island(2) the Privy Council advised that a contempt
had not been committed through a publication in the Nassau Guardian concerning
the resident Chief Justice, who had himself previously criticised local
sanitary conditions. Though couched in highly sarcastic terms the publication
did not refer to the Chief Justice in his official, as opposed to personal,
capacity. Thus while it might have been a libel it was not a contempt.
The fourth functional canon which channels
discretionary exercise of the contempt power is that the Fourth Estate which is
an indispensable intermediary between the State and the people and necessary
instrumentality in strengthening the forces of democracy, should be given free
play within responsible limits even when the focus of its critical attention is
the court, including the highest Court.
The fifth normative guideline for the judges
to observe in this jurisdiction is not to be hypersensitive even where
disortions and criticisms overstep the limits, but to deflate vulgar
denunciation by dignified bearing, condescending indifference and repudiation
by judicial rectitude.
The sixth consideration is that, after
evaluating the totality of factors, if the court considers the attack on the
judge or judges scurrilous, offensive, intimidatory or malicious beyond
condonable limits, the strong arm of the law must, in the name of public
interest and public justice, strike a blow on him who challenges the supremacy
of the rule of law by fouling its source and stream.
Speaking generally, there are occasions when
the right to comment may be of supreme value (for instance, the thalidomide
babies cases in England) (3) and the law of contempt must adjust competing
values and be modified, in its application by the requirements of a free
society and the shifting emphasis on paramount public interest in a given
(1) (1911) 12 C.L.R. 280, 285.
(2) (1893) A.C. 138.
(3) 1 prefer the judgment of Lord Denning M.
R. in the Court of Appeal to those in the Divisional Court or House of Lords in
the Thalidomide case : Att. Gen. v. Times Newspapers Ltd. (1972) 3 All. E.R.
1136 (D.C.) ; (1973) 1 All. E.R. 815 (C.A.) ; (1973) 3 All. E.R. 54 (14.L.).
176 Indeed, there is an interesting
Australian decision R. V. Brett(1) which has a meaningful relevance for our
case and I quote from the Australian Law Journal "In R. v. Brett, the
publisher of a newspaper was called on to show cause why he should not be
committed for contempt of court. It appeared that the newspaper, under the
heading "Mr. Justice Sholl-Diehard Tory" had criticized the
appointment, of Mr. Justice Shall and inferentially of all his brethren except
one not specified, because they were out of touch with the- life of the people
and had no experience (it was alleged) in the Criminal Court "the only
court where even a semblance of the problems of the people arise". and it
concluded that his appointment showed that the judiciary was "an
institution forming an integral part of the repressive machinery of the
"O' Bryan, J. pointed out that the fact
that the article made ridiculous mistakes of fact and that its logic was
greatly at fault, did hot prove that it was a contempt. The question was
whether the article, honestly though mistakenly and offensively, criticised the
policy of this and previous adminis- trations in appointing judges, or whether
it did indeed set out to lower the authority of the Court as such and to excite
misgivings as to its partiality. With very great hesitation, his Honour came to
the conclusion that a case for the exercise of the extra- ordinary summary
jurisdiction of the Court had not been made out and he discharged the order
nisi." Another useful illustration from the Australian jurisdiction is
contained in short report made of a decision in Australian Law Journal,
1928-29, Vol. 2, 145-146 :
"The Tasmanian case (The King v.
Ogilvie) concerned statements made by the respondent at public meetings,
imputing lack of impartiality to Mr. Justice Crisp, and asserting that the
respondent was personally disliked by his Honour, and that respondent's clients
could not get justice from him. Nicholls, C. J., in delivering the judgment of
the Court, agreed with the authorities that fair comment on judicial actions is
not only justifiable, but beneficial. He then pointed out "that we regard
these proceedings as instituted and our powers conferred, not for the benefit
or com- fort of the Judges personally, to protect them from criticism or even
from libel, but simply to secure that this institution, the Supreme Court,
which in the final analysis has to declare and enforce the rules which hold the
community together, shall be challenged only in the proper ways, which are
two" first, by appeal, and secondly by approach in the proper form to
'Parliament." (1) (1950) C.L.R. 226.
177 A quick flash back to English decisions
also is instructive. A, early as 1900 in Queen,v. Gray(1). Gray published in a
newspaper an article which was "personal scurrilous abuse of a judge as a
judge" Lord Russel of Killowen C. J. observed :
"It is not too much to say that it is an
article of scurrilous abuse of a judge in his character of a judgescurrilous
abuse, in reference to the conduct of the judge While sitting under the Queen's
Commission, and scurrilous abuse published in a newspaper in the town in which
he was still sitting under the Queen's Commission. It cannot be doubted- indeed
it has not been argued to the contrary by the learned counsel who represents
Howard Alexander Gray-that the article does constitute a contempt of Court;
but, as these applications are, happily, of an unusual character, we have
thought it right to explain a little more fully than is perhaps necessary what
does constitute a contempt of Court, and what are the means which the law has
placed at the disposal of the Judicature for checking and punishing contempt of
Court. Any act done or writing published calculated to bring a Court or a judge
of the Court into contempt, or to lower his authority, is a contempt of Court.
That is one class of contempt.
Further, any act done or writing published
calculated to obstruct or interfere with the due course of justice or the
lawful process of the Courts is a contempt of Court. The former class belongs
to the category which Lord Hardwicke L. C. characterized as "scandalizing
a Court or a Judge." The learned Law Lord, however.. indicated a guideline
which is extremely important :
"Judges and Courts are alike open to
criticism, and if reasonable argument or expostulation is offered against any
judicial act as contrary to law or the public good, no Court could or would
treat that as, contempt of Court. The law ought not to be astute in such cases
to criticise adversely what under such circumstances and with such an object is
published; but it is to be remembered that in this matter the liberty of the
press is no greater and no less than the liberty of every subject of the Queen.
Now, as I have said, no one has suggested that this is not a contempt of Court
and nobody has suggested, or could suggest that it falls within the right of
public criticism in the sense I have described. It is not criticism : I repeat
that it is personal scurrilous abuse of a judge as a judge........
(emphasis, added) ,The tone of R. v. Gray
(supra) sharply contrasted with the much more liberal tone adopted by the Privy
Council in McLeod v. St.
(1) (1900) Q.B.D. 36.
178 Aubyn(1) even though certain aspects of
the latter decision assume a somewhat imperialist tone. Dr. Rajeev Dhavan has
"For some strange reason the Privy
Council judgment was neither referred to by the Chief Justice or even cited to
the Court even though a time lag of nine months separates the two
judgments".(2) A harmonious blend and a balanced co-existence of a free
press and fearless justice desiderates that the law ought not to be too astute
in such cases and that public criticism has a part to play, even if it
oversteps the limit, in preserving the democratic health of public
institutions. But. beyond a point, the wages of contempt is committal.
In Ambard v. Attorney-General for Trinidad(3)
the Privy Council pronounced on a case of public criticism of the
administration of jus- tice. Lord Atkin stated, with admirable accuracy, the
law on this branch of contempt of Court :
"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 exercise 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 outspoken comments of ordinary men." Indeed,
Lord Morris in Mcleod v. St. Aubyn (supra) has commented "Courts are
satisfied to leave to public opinion attacks or comments derogatory or
scandalous to them. But it must be considered that in small colonies,
consisting princi- pally, of coloured populations, the enforcement in proper
cases of committal for contempt of Court for attacks on the Court may be
absolutely necessary to preserve in such a community the dignity of and respect
for the Court." In will not condemn the Indian people with the contempt
manifest in Lord Morris' observation regarding small colonies and coloured
populations. We are cultured people with traditions and canons and may at least
be equated in these matters with English men.
(1)  A.C. 549.
(2) See R. Dhavan : "Contempt of Court
and the Phillimore Committee Report" (1976) 5 Anglo American Law Review
186 at 205.
(3) (1936) A.C. 322.
179 A very valuable and remarkably fresh
approach to this question of criticism of Courts in intemperate language and
invocation of contempt of court against the contemner, a person of high
position, is found in Regina v. Metropolitan Police Commissioner ex. p.
Black,burn(1). Lord Denning's judgment is particularly instructive in the
context of the obnoxious comments made by Queen Hogg in an article in
"Punch" about the members of the Court of Appel. The remarks about
the Court of Appeal were highly obnoxious and the barbed words thrown at the
judges obviously were provocative. Even so, in a brief but telling judgment,
Lord Denning held this not to be contempt of court. It is illuminating to
excerpt a few observations of the learned judge :
"This is the first case, so far as I
know, where this court has been called on to consider an allegation of contempt
against itself. It is a jurisdiction which undoubtedly belongs to us but which
we will most sparingly exercise more particularly as we ourselves have an
interest in the matter.
Let me say at once that we will never use
this jurisdiction as a means to uphold our own dignity. That must rest on surer
Nor will we use it to suppress. those who
speak against us. We do not fear criticism, nor do we resent it. For there is
something far more important at stake. It is no less than freedom of speech
It is the right of every man in Parliament or
out of it. in the Press or over the broadcast, to make fair comment, even
outspoken comment, on matters of public interest. 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
All we would ask is that those who criticise
us will remember that, from the nature of our office we cannot reply to their
We cannot enter into public controversy.
Still less into political. We must rely on
our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism,
nothing which is said by this person or that, will deter us from doing what we
believe is right; nor, I would add, from saying what the occasion requires,
provided that it is pertinent to the matter in hand. Silence is not an option
when things are ill done.
The Indian precedents must naturally receive
referential attention from us and so switch over to the cases of this Court
which have relevance to that branch of the contempt jurisprudence bearing upon
scandalising the judges. After a brief survey, I will summarise the
conclusions. In Sambhu Nath Jha v. Kedar Prasad Sinha & Ors.(2) (1) (1968)
2 W.L.R. 1204.
(2)  3 S.C.R. 183, 189.
180 " It would follow from the above
that the courts have power to take action against a person who does an act or
publishes a writing which is calculated to bring a court or judge into contempt
or to lower his authority or to obstruct the due course of justice or due
administration of law.... in such cases, the court would exercise
circumspection and judicial restraint in the matter of taking action for
contempt of court. The court has to take into account the surrounding
circumstances and the material facts of the case and on conspectus of them to
come, to a conclusion whether because of some contumacious conduct or other
sufficient reason the person proceeded against should be punished for contempt
of court." 'In Perspective Publications Ltd. v. State of, Maharashtra(1)
Grover, J., speaking on behalf of the Court, reviewed the entire case law and
stated the result of the discussion of the cases on contempt as follows
"(1) It will not be right to say that committals for contempt few
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 this Court. It is only in the latter case that it will
be punishable as 'Contempt.
(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.Mukherjee, J. (as he then was) (Brahma Prakash
Sharma's Case) (1953) S. C.
R., '1169) 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 (1)  2 S.C.R.
181 or fairnes 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 embarrass- ment
in the mind of the judge himself in the discharges of his judicial
duties." Hidayatullah, C. J., in R. C. Cooper v. Union of India(1)
"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 it possession of all truth or hold that
wherever others differ from them, 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 others........
We are constrained to say also that 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 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." In Brahma Prakash Sharma and Others
v. The State of Uttar Pradesh(2) this Court said :
"It seems, therefore, that there are two
primary considerations which should weigh with the court when it is called upon
to exercise the summary powers 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 of 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. It is not by stifling criticism
that confidence in courts can be created. "The path of criticism",
said Lord Atkin (Ambard v. Attorney-General for Trinidad and (1) (1970) 2
S.C.C. 298, 301.
(2) (1953) S.C.R. 1169, 1178, 1180.
182 Tobago, (1936) A.C. 322 at 335) is a
public way. The wrongheaded are permitted to err therein; provided that members
of the public abstain from- imputing motives to those taking part in the
administration of justice and are genuinely exercising a right of criticism and
not acting in malice, or attempt to impair the administration of justice, they
are immune." In the second place, 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 the judge and what
amounts really to contempt of court. The fact that a statement is defamatory so
far as the judge is concerned does not necessarily make it contempt. The
distinction- between a libel, and a contempt was pointed out by a Committee of
the Privy Council, to which a reference was made by the Secretary of State in
1892 (In the matter of a special reference from the Bahama Islands (1893) A. C.
138). A man in the Bahama Islands, in a letter published in a colonial
newspaper criticised the Chief Justice of the Colony in an extremely ill-
chosen language which was sarcastic and pungent. There was a veiled insinuation
that he was an incompetent judge and a shirker of work and the writer suggested
in a way that it would be a providential thing if he were to die. A strong
Board constituting of 11 members reported that the letter complained of, though
it might have been made the 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 the law and therefore did not constitute a
contempt of court. The same principle was reiterated by Lord Atkin in the case
of Devi Prashad v. King Emperor (70 I. A., 216) referred to above. It was
followed and approved of by the High Court of Australia in King v. Nicholls (12
Corn. L. R. 280), and has been accepted as sound by this Court in Reddy v. The
State of Madras (1952) S. C. R., 452). The position therefore is that a
defamatory attack on a judge may be a libel so far as the judge is concerned
and it would be open to him to proceed against the libeller in a proper action
if lie so chooses.
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. One is a wrong done to the judge personally while the other is a
wrong done to the public. 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 183 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 interference with the proper administration of law." Mookerjee J. in In
re : Motilal Ghosh and Others ILR, 45, Cal., 269 at 283.) There is no doubt
that condign and quick punishment for scandalising publication has been awarded
by this Court, (Vide C. K. Daph- lary & Ors. v. O. P. Gupta(1) Another one
is Shri Baradakanta Mishra v. The Registrar of Orissa High Court-and Another (
2). In the latter case, I had occasion to examine the root principles of Indian
Contempt jurisprudence and I summed up thus :
"Judges and Courts have diverse duties.
But functionally, historically and jurisprudentially, the value which is clear
to the community and the function which deserves to be cordoned off from public
molestation, is judicial. Vicious criticism of personal and administrative acts
of Judges may indirectly mar their image and weaken the confidence of the
public in the judiciary but the countervailing good, not merely of free speech
but also of greater faith generated by ex- posure to the actinic light of bona
fide, even if marginally over-zealour, criticism cannot be overlooked. Justice
is no cloistered virtue." "The Court being the guardian of people's
rights, it has been held repeatedly that the contempt jurisdiction should be
exercised "with scrupulous care and only when the case is clear and beyond
reasonable doubt"." I relied on an observation made by Justice
Gajendragadkar, C.J., In Special Reference No. 1 of 1964 and proceeded to state
the key to the jurisdiction :
"We ought never to forget that the power
to punish for contempt, large as it is, must always be exercised cautiously.
wisely, and with circumspection. Frequent or indiscrimi- nate use of this power
in anger or irritation would not help to sustain the dignity or status of the
court, but may sometimes affect it adversely. Wise Judges never forget that the
best way to sustain the dignity and status of their office is to deserve
respect from the public at large by the quality of their judgments, the
fearlessness, fairness and objectivity of their approach, and by the restraint,
dignity and decorum which they observe in their judicial conduct." if
judges decay the contempt power will not save them and so the other side of the
coin is that Judges, like Caesar's wife, must be above suspicion.
(1) (1971) Supp. S.C.R. 76, 92-93.
(2) (1974) 1 S.C.C. 374.
184 To wind up, the key word is
"justice", not "judge"; the key-not thought is unobstructed
public justice, not the self defence of a judge; the cornerstone of the
contempt law is the accommodation of two constitutional values-the right of
free speech and the right to independent justice. The ignition of contempt
action should be substantial and mala fide interference with fearless judicial
action, not-fair comment or trivial reflections on the judicial process and
per- sonnel." Indeed, I am convinced that democratic institutions,
including the Court system and judges, must suffer criticism and benefit from
it This approach has been emphasised by me in that case :
"Even so, if Judges have frailties-after
all they are human-they need to be corrected by independent criticism. If the
judicature has serious shortcomings which demand systemic correction through
socially-oriented reform initiated through constructive criticism, the contempt
power should not be an interdict.
All this, far from undermining the confidence
of the public in Courts, enhances it and, in the last analysis, cannot be
repressed by indiscriminate resort to contempt power. Even bodies like the Law
Commission or the Law Institute and researchers, legal and sociological, may
run 'contempt' risks because their professional work sometimes involves
unpleasant criticism of judges, judicial processes and the system itself and
thus hover perilously around the periphery of the law if widely construed.
Creative legal journalism and activist statesmanship for judicial reform cannot
be jeopardized by an undefined apprehension of contempt action." American
legal history has lessons for us but when national conditions vary adaptation,
not imitation, is the creative alternative, to avoid breakdown on the rock of
New York is not New Delhi and New York Times
deals with different customers from the Times, of India. The law of contempt
fluidly flows into the mould of life. This fact once noted, there is
instructive thought in the American cases.
Their lofty approach, grounded on
constitutional values, has an appeal for us. The issue is one of the gravest moments
for free peoples and to choose between the cherished basics of free expression
and fair hearing is a trying task. For a free press it may be argued as did the
U. S. judges " What is at stake here is a societal function of the First
Amendment in preserving free public discussion of governmental affairs Public
debate must not only be unfettered; it must also be informed. For that reason
this Court has repeatedly stated that First Amendment concerns encompass the
receipt of information and ideas as well as the 185 right of free
expression...... An informed public depends on accurate and effective reporting
by the news media. No individual can. obtain for himself the information needed
for the intelligent discharge of his political responsibilities. For most
citizens the prospect of personal familiarity with newsworthy events is,
In seeking out the news the press therefore
acts as an agent of the public at large.
It is the means by which the people receive
that free flow of information and ideas essential to intelligent self government.
By enabling the public to assert meaningful
control over the political process, the press performs a crucial function in
effecting the societal purpose of the First Amendment. That function is
recognized by specific reference to the press in the text of the Amendment and
by the precedents of this Court.
The argument further asserts that a
curtailment of press freedom is a serious matter. If they can be justified at
all, it must be in terms of some serious substantive evil which they are
designed to avert. The substantive evil here sought to be averted has been
variously described below. It appears to be double disrespect for the
judiciary; and disorderly and unfair administration of justice. The assumption
that respect for the judiciary can be won by shielding judges from published
criticism wrongly appraises the character of American public opinion. For it is
a prized American privilege to speak one's mind, although not always with
perfect goo d taste, on all public institutions. And an enforced silence,
however limited, solely in the name of preserving the dignity of the bench,
would probably engender resentment, suspicion, and contempt much more than it
would enhance respect." We may glance at the vigorous dissent of Mr. Justice
Frankfurter to this reasoning in Bridges v. California(1) "Our whole
history repels the view that it is an exercise of one of the civil liberties
secured by the Bill of Rights for a leader of a large following or for a
powerful metropolitan newspaper to attempt to overawe a judge in the matter
immediately pending before him. The view of the majority deprives California of
means for securing to its citizens justice according to law-means which, since
the Union was founded have been the possession, hitlierta unchallenged, of all
the states. This sudden break with the uninterrupted course of constitutional
history has no constitutional warrant. To find justification for such
deprivation of the historic powers- of the states is to misconceive the idea of
freedom of thought and speech as guaranteed by the Constitution......" (1)
 319 U.S, 252, 279, 283, 284.
13-211 SCI/78 186 A trial is not a "free
trade in ideas," nor is the best test of truth in a courtroom "the
power of the thought to get itself accepted in the competition of the market A
court is a forum with strictly defined limits for discussion. It. is circumscribed
in the range of its, inquiry and in its methods by the Constitution, by laws,
and by age-old traditions. Its judges are restrained in their freedom of
expression by historic compulsions resting on no other officials of government.
They are so circumscribed precisely because
judges have in their keeping the enforcement of rights and the protection of
liberties which, according to the wisdom of the ages, can only be enforced and
protected by observing such methods and traditions.
continue the historic process of prohibiting
expressions calculated to subvert a specific exercise of judicial power. So to
assure the impartial accomplishment of justice is not an abridgment of freedom
of speech or freedom of the press as these phases, of liberty have heretofore
been conceived even by the stoutest libertarians. In fact, these liberties
themselves depend upon an untrammeled judiciary whose passions are not even
unconsciously aroused and whose minds are not distorted by extra-judicial
Of course freedom of speech and of the press
are essential to the enlightenment of a free people and in restraining those
who wield power. Particularly should this freedom be employed in comment upon
the work of courts, who are without many influences ordinarily making for humor
and humility, twin antidotes to the corrosion of power. But the Bill of Rights
is not self-destructive. Freedom of expression can hardly carry implications
that nullify the guarantees of impartial trials.
And since courts, are the ultimate resorts
for vindicating the Bill of Rights, a state may surely authorize appropriate
historic means to assure that the process for such vindication be not wrenched
from its rational tracks into the more primitive melee of passion and pressure.
The need is great that courts be criticized, but just as great that they be
allowed to do their duty." The representative thinking on the subject is
neatly summed up by John R. Brown, Chief Judge :
"Thus does Alexander again confront the
Gordian Knot. For our history demands that breaches of 'the unqualified
commands of the First Amendment cannot be tolerated and freedom of the press
must be given the broadest scope that a liberty-loving people can allow On the
other hand, our fundamental concepts of absolute fairness in trials dictate
that the environment within which justice, is administered must be maintained
unpolluted by 'the 187 potential infamous notoriety and biased predilections
which a completely unfettered but omnipresent press can irrevocably engender in
an age of the mass media.........." It is apparent from this long
discussion that the future of Free Press and of Fair Justice desiderates a
juristic socio- political national debate, not ex-cathedra admonitions from the
Bench or assertions from the Bar. We must evolve know-how for the co-existence
of free speech and free justice in tune with the Preamble and Article 19.
Scurrilous attacks on judges or on parties to
pending cases foul the course of justice. Mischievous half-truths, brazen
untruths and virulent publicity by partisan media, political organs and
spokesmen for vested interests can be traumatic to the cause of social justice.
In an area of competing social values
absolutist approaches are sure to err. And yet benign neglect of courts to
arrest injurious publicity may be misread as importance and timely affirmative
action may stem the rot. Sheppard(1) is an American case in point Remember, a
'free' press is often a monopoly press and has been made gargantuan by modern
technology. Of course, we must also remember, courts work in public and
publishing their proceedings fairly cannot be taboo. Please remember, further,
that those who cry 'wolf' against Contempt Power are more often the Proprietary,
not the Proletariat, with exceptions which prove the rule.
Prejudicial publicity, indulged in by a
'free' press owing no institutional responsibility or public accountability,
cannot be all that good, especially when judges are personally vilified,
assured that the robes' traditionally, and for good reasons, do not and should
not wrestle with calumniating columnists or yellow journalists. Likewise, a
litigant or judge, run down by powerful vested interests wearing the mask of
mass media owned by them or hiring the pen of arch spokesmen of political or
economic reactionaries, cannot run riot, raising the alarm that free speech is
in peril and get away with it. Heroism on the face may often be villainy at
heart and the law cannot retreat from its justice-function scared by slogans.
Balancing of values is difficult, delicate
but indispensable. Neither the Press nor the courts are above the People.
Otherwise, even gutter talk or, to borrow the phraseology of justice Stevens in
Nebraska(2), shabby, intrusive or perversely motivated media practices, may be
dignified as free press and given protective constitutional status, leaving the
citizen litigant demoralized and citizen judge powerless, panicked by the
ballyhoo of Press restraint.
The Court is not an inert abstraction; it is
people in judicial power. And when drawing up standards for Press freedom and
restraint, as an 'interface' with an unafraid court, we must not forget that in
our constitutional scheme the most fundamental of all freedoms is the free
quest for justice by the small man. 'When beggars (1) Sheppard v. Mawell 
(2) Nebraska Press Association v. Stuarts
 96 Sup. Ct. 2791.
188 die, there are comets seen' and 'when the
bull elephants fight, the. grass is trampled'. The contempt sanction, once
frozen by the high and mighty press' campaign, the sufferer, in the long run,
is the small Indian who seeks social transformation through a fearless judicial
process. Social justice is at stake if foul press unlimited were to reign.
As Justice Frankfurter stated, may be 'judges
as persons, or courts as institutions, are entitled to no greater immunity from
criticism than other persons or institutions' (a question I desist from
deciding here), but when comment darkens into coercive imputation or calculated
falsehood, threats to impartial adjudication subtly creeps. Not because judges
lack firmness nor that the dignity of the bench demands enhanced respect by
enforced silence, as Justice Black observed in the Los Angeles Times(1) case
but because the course of justice may be distorted by hostile attribution. Said
Justice Jackson in Craige v. Harney(2) :
"I do not know whether it is the view of
the Court that a judge must be thickskinned or just thickheaded, but nothing in
my experience or observation confirms the idea that he is insensitive to
publicity. Who does not prefer good to ill report of his work? And if fame-a
good public name-is, as Milton said, the "last infirmity of noble
mind," it is frequently the first infirmity of a mediocre one.
I do not dogmatise but indicate the perils.
Of course, the evil must be substantive and substantial, not chimerical or
A concluding note. I have launched on this
long, inconclusive essay in contempt jurisprudence bearing on scandalizing the
judge& qua judges, aware that not high falstaffian rhetoric but hard-headed
realism, illumined by constitutional values, must set the limit and interpret
the statute. It is a disturbing development in our country that the media and
some men in the, trade of traducement are escalatingly scandalizing judges with
flippant or motivated write-ups wearing a pro bono publico veil and mood of
provocative mock-challenge. The court shall not meditate nor hesitate but shall
do stern justice to such 'professional" contemners, not shrink because
they are scurrilous, influential or incorrigible. Even so, to be gentle is to
be just and the quality of mercy is not strained. So, it is that a benign
neglect not judicial genuflexion, is often the prescription, and to inhibit
hapha zardness or injustice it is necessary that the Bar and the Press evolve a
dignified consensus on the canons of ethics in this area, with due regard to
the Constitution and the laws, so that the Bench may give it a close look and
draw the objective line of action. The process of arriving at these norms by
those mighty forces who influence Public opinion, cannot be delayed and until
then the law laid down in precedents of this court will go into action when
judge- baiting is indulged in by masked 'men or media might.
Freedom is what Freedom does and Justice
fails when Judges quail.
(1) 314 U.S. 263.
(2) 331 U.S. 367.
189 For sure, my plea is not for judicial
pachydermy, but for dignified detachment which ignores ill-informed criticism
in its tolerant stride, but strikes when offensive excesses are established.
Frankly, all these are hypothetical and have no specific reference to the
present case. These obiterdacta are intended to indicate the pros and cons, not
to pontificate on the precise limits for exercise of contempt power and to
emphasize what Chief Justice Warren Burger mentioned in Nebraska Press
Association(1) as 'something in the nature of a fiduciary duty' of the press to
act responsibly and I may add, respectfully.
An afterword has become necessitous because
the learned Chief Justice has, in his reasons, made some critical observations
on men and matters based on his rich experience, high responsibility and urge
to right wrongs.
While respecting his feeling of hurt and
attempt to set the 'record straight regarding his prior judgment and letters on
canons of judicial ethics, I desist from comments on the author or the article,
including its correctness and propriety, for fear that an indelible word, writ
incautiously, may fester into an incurable wound. I am in no mood to pronounce
on these subjects or to judge these generalities. Many an arrow at random sent
hits a mark the archer never meant, and ex cathedra generalizations run the
genetic risk of notice imperfections. The Almighty does not share His omniscience
with the Judiciary.
KAILASAM, J.-I had the benefit of reading the
Judgments proposed to be delivered by My Lord the Chief Justice and Justice
I would have been contented with stating
that, in my view, on taking into account the facts and circumstances of the
case this is not a fit case to be proceeded with under the Contempt of Courts
Act, 1971. But now it has become necessary for me to state whether I agree with
the judgments to be delivered.
MY learned Brother Justice Krishna Iyer in
his concluding note has expressed that he had launched on this long
inconclusive essay which relates to hypothetical questions and has no specific
reference to the present case. The Judgment which lie himself characterizes as
obiter dicta may be left alone without any comments.
When the matter was taken up in the Court on
27th January, 1978, the contempt proceedings were dropped without calling upon
the learned counsel who was appearing for the respondent in response to the
notice. Without bearing the parties concerned, it is not right and proper to
make any comments about the facts of the case. In this view I refrain from
referring to the publication in "The Indian Express" or about the
article in the newspaper by Shri A. G. Noorani.
Contempt proceedings will stand dropped.
P.B.R. Proceedings dropped.
(1) 96 S. Ct. 2803.