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