M.R. Parashar & Ors Vs. Dr. Farooq
Abdullah & Ors [1984] INSC 22 (31 January 1984)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) SEN, A.P. (J)
CITATION: 1984 AIR 615 1984 SCR (2) 760 1984
SCC (2) 343 1984 SCALE (1)136
ACT:
Contempt of Courts Act, 1971-Publication in a
newspaper of allegation of Contempt of Court by Chief Minister- Requisite proof
not furnished-No record of speech produced- Whether could be committed for
contempt.
HEADNOTE:
A news item appeared in the newspaper of
which respondent No. 2 was its editor, that while addressing a rally of
Judicial Employees' Welfare Association, the Chief Minister of Jammu and
Kashmir denounced and ridiculed the judiciary stating that "Justice is
being bought in judicial Courts" and that he would never honour the
Court's stay orders because justice could be bought with money. The news item
also stated that the Chief Minister expressed his regret to the Chief Justice
and other Judges who were present at the meeting, explaining that the strong
words used by him were the voice of his conscience and that he had the greatest
regard for the judiciary.
The petitioner filed the contempt petition
against the Chief Minister.
Although a show cause notice was issued under
the Contempt of Courts Act 1971 to the Chief Minister (respondent) on March 18,
1983 no counter-affidavit was filed till September 26, 1983. When the contempt
petition was called out on that day his advocate accepted the notice on behalf
of the respondent. Eventually on November 21, 1983 the affidavit of the Chief
Minister dated November 9, 1983 was taken on record.
While the Chief Minister denied having made
the statements attributed to him, the Editor asserted that the version published
in the newspaper was true.
On the question whether the statements
published in the newspaper amounted to contempt of court.
Dismissing the petition,
HELD: What is involved in this case is
criminal contempt and therefore it is necessary to apply the particular
standard of proof required to be established in a criminal case. Respondent,
No.1, on the material placed on record, cannot be held to be guilty of the
charge. [764F] 761 In matters involving allegations of criminal contempt, the
Court has to act both as a prosecutor and as a Judge. It does so to uphold the
authority of law and not in defence of a particular Judge. Secondly, the right
of free speech is an important right of the citizen and bona fide criticism of
any system or institution is aimed at inducing the administrators of that
system or institution to look inwards and improve its public image. Courts do
not like to assume the posture that they are above criticism. At the same time
though law does not restrain the expression of disapprobation against what is
done in or by Courts of law, the liberty of free expression is not to be
confounded with a licence to make unfounded allegations of corruption against
the judiciary. The abuse of the liberty of free speech and expression carries the
case nearer the law of contempt. Those who criticise the judiciary must
remember that they are attacking an institution which is indispensable for the
survival of the rule of law but which has no means of defending itself.
Therefore, Judges must receive the protection of law from unfounded attacks on
their character. [765H; 766A, B-E; F-G] If the Chief Minister said what was
alleged in the news item he was in contempt; if he had not, the Editor had
committed a contempt by publishing a false report of a scurrilous speech that
was never made. In the face of denial by one and an assertion by the other
without more, it is difficult to decide who is right. On the one hand is the
tendency to ridicule the system of justice and malign those who administer it,
on the other is the propensity of the fourth estate for some little sensation
and its political involvement. When political considerations pollute the stream
of life, sifting truth from falsehood becomes a formidable and forbidding task.
In these circumstances it is difficult to record a positive finding that the
allegation that the Chief Minister made the particular statement is proved
beyond a reasonable doubt. [764D-F] Although the petitioners had asserted that
the Judges of the High Court were present at one of the functions and that they
walked out of the meeting on hearing the abusive language used by the Chief
Minister no attempt was made to establish the truth of that assertion. A
walkout by Judges of the High Court during the speech of the Chief Minister or
soon thereafter would have lent considerable weight to the allegation that the
statements made by the Chief Minister were open to grave objection. [764G-H]
When a Chief Minister makes a formal speech an official record of the speech,
if it were a prepared speech, or even if it were an extempore speech, should
have been kept. No one taped or took down the speeches of a person as important
as the Chief Minister. No written record kept contemporaneously or prepared
soon after is cited to contradict the allegation that the Chief Minister
scandalised the Courts and assailed the character of Judges.
[765B-D]
ORIGINAL JURISDICTION: Contempt Petition No.
8118 of 1983.
Under Art. 129 of the Constitution read with
Section 15 of the Contempt of Court's Act, 1971.
762 Subhash Sharma, N. M. Popli and K. R. R.
Pillai for the petitioner.
S. N. Kacker and Altaf Ahmad for Respondent
No. 1.
M. C. Bhandare E. C. Agarwala and Mrs. Indira
Sawhney for Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. This is a petition asking that the respondents be committed
for contempt for certain statements allegedly made by Respondent 1, who is the
Chief Minister of Jammu and Kashmir. Respondent 2 is the Editor of a newspaper
called Daily Kashmir Times in which those statements were published, while
Respondent 3 is its correspondent.
In the issue of the Daily Kashmir Times dated
November 13, 1982, a news item appeared under the caption "CM asks
engineers to forcibly occupy club building". According to the report, the
Chief Minister, while addressing the annual general meeting of the Institute of
Engineers, said that the engineers should occupy a certain building forcibly as
it would not be possible for them to evict the Amar Singh Club through the
normal legal process and that he would provide the necessary police assistance
for that purpose. The report says that the Chief Minister advised the Institute
of Engineers to move quickly in the matter before the management of the Club
could obtain a stay order from the Court.
Another news item appeared in the same
newspaper on November 23, 1982 under the caption "Chief Minister says he
will never accept courts' stay orders". According to the report, the Chief
Minister, while addressing a rally of Judicial Employees' Welfare Association,
denounced and ridiculed the judiciary by saying that "justice is being
bought in the judicial courts". Taking exception to the frequent stay
orders issued by the Courts against the Government, the Chief Minister is
alleged to have said: "I will never honour these stay orders even if I am
hanged", that justice could be bought with money and that this task could
be performed conveniently by any leading lawyer. The news item concludes by
saying that later, the Chief Minister expressed his regret to the Chief Justice
and other Judges of the High Court who were present at the meeting, explaining
that the strong words used by him were the voice of his conscience but, otherwise,
he had the greatest regard 763 for the judiciary, and that he only wanted quick
justice for the people.
On March 18, 1983 a notice was issued by this
Court to the respondents asking them to show cause why action under the Contempt
of Courts Act, 1971 should not be taken against them. Since one of the
respondents is a Chief Minister, we assumed that there would be no difficulty
in serving the notice upon him and he would file his reply promptly, in view of
the seriousness of the allegations made against him.
But, until September 26, 1983 no
counter-affidavit was filed in the matter. When the Contempt Petition was
called out on that date, Mr. Altaf Ahmed, accepted the notice on behalf of the
Chief Minister. On that date, the Court directed the Chief Minister to file his
counter-affidavit within four weeks. On October 21, 1983 the Registry submitted
a report to the Court that Mr. Altaf Ahmed had not yet filed his appearance for
the Chief Minister. On November 21, 1983 an affidavit dated November 9, 1983 of
the Chief Minister was taken on record. Since the Chief Minister denied by that
affidavit that he had made the kind of statements attributed to him, we issued
a specific direction that Respondent 2, the Editor of Daily Kashmir Times,
should appear in person before the Court on November 28, 1983. That was with a
view to obtaining his explanation as to how the newspaper came to publish the
various statements which the Chief Minister denied he had ever made.
Respondent 2 appeared before us on November
28, 1983 and stuck to the version published in the newspaper. In the light of
that, we reverted to the counter-affidavit filed by the Chief Minister when we
found that it did not traverse the allegations of the petitioners
satisfactorily. We therefore directed him to file a further affidavit dealing
with the allegations against him clearly and specifically.
In pursuance of that direction, Respondent I
filed an affidavit dated December 14, 1983.
By his affidavit dated January 9, 1984,
Respondent 2 has adhered to his original stand that the report which appeared
in the Daily Kashmir Times was true and correct.
According to him, the Chief Minister did make
the various statements complained of and that his denial is untrue.
If we were satisfied that the Chief Minister
had made the statements attributed to him, it would have been a serious matter.
Then, we could not have dismissed the peroration as an ill-tempered 764
outburst of an uninformed person. Considering the high position which Chief
Ministers occupy in the public life of our country, their words and deeds have
to be presumed to be intended. The defence that what was said or done was not
intended is not open to persons occupying high public offices. The formal
expression of regard for the courts under the pressure of a contempt notice
becomes a mere escape if speeches and writings betray defiance of judicial
authority and constitute an exhortation to the public to disregard orders passed
by courts. But, the Chief Minister denies to have made the utterances, as
stoutly as the editor asserts that the reports of the speeches published in his
newspaper are true. There is word against word, and no preponderating
circumstance which, objectively, compels the acceptance of the word of one in
performance to the word of the other. We have two responsible persons before us
who pursue honourable professions: one is the Chief Minister of a State and the
other is the editor of a newspaper. Both cannot be true in their contentions
before us. One of them has clearly violated the law of contempt. If the Chief
Minister said what is alleged, he is in contempt. If he has not, the editor has
committed contempt by publishing a false report of a scurrilous speech that was
never made. In face of denial by one and an assertion by the other without
more, it is difficult to decide who is right. On one hand is the tendency to
ridicule the system of justice and malign those who administer it. On the other
is the propensity of the fourth estate for some little sensation and its
political involvement. When political considerations pollute the stream of
life, sifting truth from falsehood becomes a formidable and forbidding task In
these circumstances, we are unable to record a positive finding that the
allegation that the Chief Minister made the particular statements is proved
beyond a reasonable doubt. What is involved in this petition is criminal
contempt and, therefore, it is necessary to apply that particular standard of proof.
There is one circumstance which puts us on
our guard in accepting the contempt petition. That circumstance is that though,
during the course of arguments, it was stated at the Bar on behalf of the
petitioners that the learned Judges of the Jammu & Kashmir High Court were
present at one of the functions and that they walked out of the meeting on
hearing the 'abusive' language used by the Chief Minister, no attempt was made
to establish the truth of that assertion. A walk-out by Judges of the High Court
during the speech of the Chief Minister or soon after he ended it, would have
lent considerable weight to the allegation that the statements made by the
Chief Minister were open to grave objection.
765 But we record the finding of 'not guilty'
with a caveat. It is not for us to advise a chosen representative of the people
as to how he should conduct his public affairs and what precautions he should
take in order to protect himself from similar allegations in future. But, it
causes us some surprise that there is no official record whatsoever of the
speeches made by the Chief Minister at the two functions. He was invited at
those functions in his capacity as the Chief Minister. And admittedly, he spoke
at those functions. With the little knowledge that we have of these matters, we
suppose that when a Chief Minister makes a formal speech, an official record of
the speech is generally available. If he speaks from a prepared text, that
forms the record of what he spoke. But, whether he speaks from a text or speaks
extempore, it is unlikely, in the times in which we live, that a speech made by
a Chief Minister on a formal occasion will not be taken down or tape-recorded.
Tapes have become a part of our life, public and private, sometimes to the
point of annoyance. In times when mechanical gadgets have become the order of
the day and 'taping', especially, has become a common practice, it is
surprising that no one taped or took down the speeches of a person as important
as the Chief Minister. No written record, kept contemporaneously or prepared
soon after, is cited to contradict the allegation that the Chief Minister
scandalized the Courts and assailed the character of Judges.
As we said, it is not for us to advise anyone,
least of all those who, in the discharge of their onerous responsibilities,
have their own select group of advisers.
But, we cannot restrain the observation that
it is so much safer for persons who have to make frequent public appearances to
have their utterances duly put on paper, before of soon after the event. For
those who have nothing to conceal or fear, that is a prudent course of action.
For the rest, a constant friction with the law of contempt is inevitable. The
former will lay their cards on the table and be cleared. The latter have to
live in the hope that the rigorous standard of 'proof beyond a reasonable
doubt' will act as their saviour. The latter course of conduct leaves much to
be desired from the point of view of men of honour.
Courts are not astute to reason to their
power to punish anyone for criminal contempt. But that reluctance should not be
overtaxed.
The reluctance of courts to resort to the
provisions of the Contempt of Courts Act springs from their regard for the rule
of law. The role of a prosecutor is incompatible with the role of a judge. In
matters involving allegations of criminal contempt of Court, these roles are
combined and the Court has to act both as a 766 prosecutor and as a judge. True,
that it acts in order to uphold the authority of law and not in defence of this
or that particular judge. But an order punishing a person for such contempt is
likely to create the impression, more so in the mind of lay observers, that the
judges have acted in defence of themselves. Courts do not like to create such
an impression even unwittingly. Secondly, the right of free speech is an
important right of the citizen, in the exercise of which he is entitled to
bring to the notice of the public at large the infirmities from which any
institution suffers, including institutions which administer justice. Indeed,
the right to offer healthy and constructive criticism which is fair in spirit
must be left unimpaired in the interest of public institutions themselves.
Critics are instruments of reforms, not those actuated by malice but those who
are inspired by the spirit of public weal. Bona fide criticism of any system or
institution is aimed at inducing the administrators of that system or
institution to look inwards and improve its public image. Courts do not like to
assume the posture that they are above criticism and that their functioning
needs no improvement. But it is necessary to make it clear that though law does
not restrain the expression of disapprobation against what is done in or by
courts of law, the liberty of free expression is not to be confounded with a
licence to make unfounded allegations of corruption against the judiciary. The
abuse of the liberty of free speech and expression carries the case nearer the
law of contempt.
We would also like to remind those who
criticise the judiciary that it has no forum from which to defend itself.
The legislature can act in defence of itself
from the floor of the House. It enjoys privileges which are beyond the reach of
law. The executive is all powerful and has ample resources and media at its
command to explain its actions and, if need be, to counter-attack. Those who
attack the judiciary must remember that they are attacking an institution which
is indispensable for the survival of the rule of law but which has no means of
defending itself. In the very nature of things, it cannot engage itself in an
open war, nor indulge in releasing contradictions. The sward of justice is in
the hands of the Goddess of Justice, not in the hands of mortal judges.
Therefore, Judges must receive the due protection of law from unfounded attacks
on their character.
The Chief Minister has stated in his
affidavit that he spoke extempore. We are not on that. In the first place, extempore
speeches confer no greater immunity on the speaker than the 767 speeches made
from prepared texts. Secondly, extempore speeches are not to be made without
the application of a careful mind. That is not the definition of an extempore
speech. Thirdly, more the extempore, greater the need to keep a written record
of the spoken word. In the written record lies the safety of the public
speaker, though not, perhaps, the benefit of posterity.
In the result, we dismiss the contempt
petition.
P.B.R. Petition dismissed.
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