Full Judgment Text
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PETITIONER:
PERSPECTIVE PUBLICATIONS (P) LTD. & ANR.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT:
19/11/1968
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SHAH, J.C.
RAMASWAMI, V.
CITATION:
1971 AIR 221 1969 SCR (2) 779
CITATOR INFO :
R 1971 SC1132 (53)
R 1972 SC 989 (8,10,11)
E&R 1978 SC 727 (42)
F 1978 SC 921 (12,15)
RF 1992 SC 904 (9)
ACT:
Contempt of Court--Difference between defamation of judge
and contempt of court---Judge’s brother having financial
interest in a firm--If sufficient to establish legal bias.
HEADNOTE:
One T filed a suit claiming Rs. 3 lacs damages for libel
against a newspaper. The suit was decreed by a Judge of the
Bombay High Court. Thereafter, an article was published in a
publication brought out by the first appellant and of which
the second appellant was the editor, printer and publisher.
The article contained insinuations that there was a
connection between a loan of Rs. 10 lacs, granted to a firm
in which the Judge’s brother was a partner, and the judgment
m the defamation case; and that the Judge knew, about the
loan having been granted to the firm.The appellants were
found guilty of contempt of court.
In appeal to this Court, it was contended that: (1) In the
article no aspersion was cast on the integrity of the Judge
nor was any imputation of dishonesty made; (2) Proceedings
for contempt for scandallzing a Judge have become
obsolete, the proper remedy being for the/judge to take
action for libel; (3) The allegations were made in the bona
fide belief that they were truthful and there was no
evidence that the Judge did not know about the transaction;
and (4) The statements, if at all, amounted to a charge of
bias against the Judge and could not be regarded as
contempt.
HELD: (1 ) The obvious implications and institutions made in
the various paragraphs of the article, read as a whole,
create a strong judicial impact on the mind of the reader
about the Jack of honesty, integrity and impartiality on the
part of the Judge in deciding the defamation suit. [785
C---D]
It is open to anyone to express fair, reasonable and
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legitimate criticism of any act or conduct of a Judge in his
judicial capacity or even to make a proper and fair comment
on any decision given by him. But, if an article
attributes improper motives to the Judge, it not only
transgresses the limits of fair and bona fide criticism but
has a clear tendency to affect the dignity and prestige of
the court and would amount to contempt of court. [785 A, 791
F]
(2) It will not be right to say that committals for
contempt of court for scandalizing the court have become
obsolete. [791 D]
(a) But such summary jurisdiction by way of contempt must
be exercised with great care and caution and only when its
exercise is necessary for the proper administration
of law and justice. [791 E]
(b) There is a distinction between a mere libel or
defamation of a judge and what amounts to contempt of
court. The tests are: (i) Is the impugned publication a
mere defamatory attack. on the Judge or is it calculated to
interfere with the due course of Justice or the proper
administration of law by his court? and (ii) Is the wrong
done to the Judge personally or is it done to the public?
The publication of a disparaging
780
statement will-be an injury to the public if it tends to
create an apprehension in the minds of the people regarding
the integrity, ability or fairness of the Judge or to deter
actual and prospective litigants from placing complete
reliance upon the courts administration of justice, or if it
is likely to cause embarrassment in the mind of the Judge
himself in the discharge of his judicial duties. [791 G--H;
792 A--C]
B.R. Reddy v. State of Madras, [1952] S.C.R. 425, Re:
The Editor. Printer and Publisher of the ’Times of India’
and in re: Aswini Kumar Ghose v. Arabinda Bose, [1953]
S.C.R. 215, Brahm Prakash Sharma v. State of U.P., [1953]
S.C.R. 1169; Re: Hira Lal Dixit & Ors. [1955] 1 S.C.R. 677
and State of M.P. v. Revashankar [1959] S.C.R. 1367,
followed.
Re: Read and Huggonson, 2 Atk. 471, In the matter of a
Special Reference from the Bahama Islands [1893] A.C. 138,
McLeod v. St. Aubyn, [1899] A.C. 549, Reg. v. Gray, [1900] 2
Q.B.D. 36; Rex v. Editor of the New Statesman (1928) 44
T.L.R. 301; Ambard v. Attorney-General for Trinidad and
Tobago, (.1936) A.C. 322, Debi Prasad Sarma .v. The ’King
Emperor. 70 I.A. 216 and Reg. v. Commissioner of Police
the Metropolis, Ex parte Blackburn, (1968) 2 W.L.R. 1206,
referred to.
(3) Assuming good faith can be held to be a defence in a
proceeding for contempt, in the present case, no attempt
was made to substantiate ’that the facts stated in the
article were true or were rounded on correct data. On the
other hand, it was established that some of the material
allegations were altogether wrong and incorrect. [792 E-F]
B.R. Reddy’s case, [1952] S.C:R. 425, referred to.
(4) The mere fact that his brother happened to have a
pecuniary interest in the firm could not per se establish
that the Judge would also have a financial interest therein
so as to constitute legal bias. [792 H; 793 A]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.159 of
1966.
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Appeal by special leave from the judgment and order
dated November 24, 1965 of the Bombay High Court in Criminal
Misc. "Application No. 323 of 1965.
S.C. A garwala, for the appellant.
M.S.K. Sastri and S.P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal from the judgment of the
Bombay High Court passed in exercise of ordinary original
civil jurisdiction by which the ,appellants were found
guilty of having committed contempt of Mr. Justice Tarkunde
in his judicial capacity and of the court. Appellant No. 2
D.R. Goel, who is the Editor, Printer and Publisher of
Perspective Publications (P) Ltd. --appellant No. 1, was
sentenced to simple imprisonment for one month together with
fine amounting to Rs. 1,000/-, in default of payment of fine
he was to undergo further simple imprisonment
781
for the same period. The appellants were also directed to
pay the costs incurred by the State. On behalf of the first
appellant it has been stated at the bar that the appeal is
not being pressed.
The background in which the impugned article was
published’ on April 24, 1965, in a weekly periodical called
"Mainstream" which is a publication brought out by the first
appellant may be set out. In the year 1960 a suit was filed
by one Krishnaraj Thackersey against the weekly newspaper
"Blitz" and its Editor and others claiming Rs. 3 lacs as
damages for libel. The hearing in that suit commenced on
the original side of the Bombay High Court on June 24, 1964.
The delivery of the judgment commenced on January 19, 1965
and continued till February 12, 1965. After June 24,
1964, that suit was heard from day to day by Mr. Justice
Tarkunde. The suit was decreed in the sum of Rs. 3 lacs.
An appeal is pending before a division bench of the High
Court against that judgment.
The impugned article is stated to have been contributed
by a person under the name of "Scribbler" but appellant No.
2 has taken full responsibility for its publication. Its
heading was "STORY OF A LOAN and Blitz Thackersey Libel
Case". It is unnecessary to reproduce the whole article
which appears verbatim in the judgment of the High Court.
The article has been ingeniously and cleverly worded. The
salient matters mentioned in the article are these: After
paying a tribute to the Indian judiciary the writersays that
according to the report in "Prajatantra" a Gujarati paper
architects Khare-Tarkunde Private Limited of Nagpur,
hereinafter called "Khare-Tarkunde" (which is described a
Firm in the article) got a loan facility of Rs. 10 lacs from
the Bank of India on December 7, 1964. The partners of
Khare-Tarkunde included the father, two brothers and some
other relations of Justice Tarkunde who awarded a decree
for Rs. 3 lacs as damages against Blitz and in favour of
Thackersey. It is pointed out that the date on which Rs. 10
lacs loan facility was granted by the Bank of India was
about five and a half months after the Thackersey-Blitz
libel suit had begun and just over six weeks before
Justice Tarkunde began delivering his "marathon judgment"
on January 19, 1965. It is then said that for Rs. 10 lacs
loan facility granted to Khare-Tarkunde, the New India
Assurance Co. stood guarantee and that the two Directors of
the Bank of India who voted in favour of the credit of Rs.
10 lacs being granted to Khare-Tarkunde were Thackersey and
Jaisinh Vithaldas (believed to be a relative of Thackersey).
Next it is stated that one of the Directors of the New India
Assurance that stood guarantee for the loan facility was
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N.K. Petigara, who was also a senior partner of M/s. Mulla &
Mulla Craigie Blunt & Caroe, Solicitors of Thackersey in the
Blitz-Thackersey Libel Case before Justice Tarkunde
4 Sup. CI/69--17
782
Emphasis is laid on the fact that Khare-Tarktunde had a
capital of Rs. 5 lacs only and the balance sheet of the firm
of June 1964 revealed indebtedness to various financiers to
the tune of Rs. 14 lacs. Thus Khare-Tarkunde is stated to
be "lucky to get against all this a handsome loan of Rs. 10
lacs from the Bank of India". The writer refers to the Code
among college teachers and university professors of not
examining papers when their own children and near relatives
sit for examination and adds that Justice Tarkunde himself
will recognize the rightness of such a Code. Referring to
the unimpeachable integrity and reputation of judges of the
Bombay High Court, the writer proceeds to say "there must
not be allowed to be raised even the faintest whisper of any
misgiving on that score." Paragraph 24 deserves to be
reproduced :-
"If Sri Krishna Thackersey did not lay
it bare at the time of the suit that he was
one of the sponsors of a contract of which the
judge’s relations were the beneficiaries, it
is up to the Chief Justice of the Supreme
Court and the Bombay High Court including
Justice Tarkunde as also the ever vigilant
members of the Bar to consider all the
implications of these disclosures which have
distressed a common citizen like me, so that
the finest traditions of our judiciary may be
preserved intact."
A petition was filed before the Bombay High Court by the
State of Maharashtra pointing out that the aforesaid article
contained scandalous allegations and was calculated to
obstruct the administration of justice and constituted gross
contempt of court. The article purported to state certain
facts relating to the transaction between Khare-Tarkunde and
the Bank which were false and there were several mis-
statements and suppression of facts some of which were:
(a) The article wrongly stated that the
father of Mr. Justice Tarkunde was a partner
in Khare Tarkunde; and
(b) The article falsely described the
transaction as a ’loan’ by the Bank to Khare-
Tarkunde. In fact the said transaction was
only a guarantee given by the Bank which
undertook to pay to the Govt. any amount not
exceeding Rs. 10 lacs in the event of Khare-
Tarkunde being unable to perform its
obligations. The Bank was secured by a
further guarantee given by the New India
Assurance Co. Ltd. undertaking to secure the
Bank in the event of the Bank having to pay
the said amount or any part thereof.
Appellant No. 2 who also happens to be a Director and
Principal Officer of the first appellant, filed a reply
raising some objec-
783
tions of a legal and technical nature ,and took up the
position that the impugned article was based on a report
published in "Prajatantra" from which all the facts stated
in the article were incorporated. It was asserted that
certain ’major facts’ had been verified by the appellant and
found to be true. It was admitted that upon reading the
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petition for taking contempt proceedings it was found by
appellant No. 2 that there were certain incorrect statements
in the article. It was claimed that the article had been
published in a bona fide belief that whatever was stated in
the article in "Prajatantra" was true. The intention was
to convey to the public at large that it was incumbent on
the plaintiff Thackersey and Pettigara, one of the partners
of Mulla & Mulla etc., his attorneys to inform Justice
Tarkunde that the plaintiff had voted for a resolution of
the Board of Directors of the Bank of India which, without
reasonable doubt, would help Khare-Tarkunde in which
Tarkunde happened to be a brother of the Judge.
The High Court analysed the implications of the facts
stated in each paragraph of the impugned article in great
detail and observed :--
" ............ reading the article as
a whole, taking care not to read into it
anything more than its plain language implies
and making every allowance for literary style
and rhetorical flourish expressions which were
often used in the arguments for the.
respondents it is impossible to avoid the
conclusions that this article exceeds the
bounds of fair and reasonable criticism. In so
far as it suggests that there is some sort of
casual connection between the granting of the
loan to M/s. Khare-Tarkunde Pvt. Ltd., and the
judgment of Mr. Justice Tarkunde in the Blitz-
Thackersey case, it clearly attempts to lower
the learned judge in his judicial capacity not
to mention the fact that it would also tend to
shake the confidence of the lay public in the
High Court and impair the due administration
of justice in that Court. In so far as there
is a suggestion made be it ever so faint that
Mr. Justice Tarkunde knew or must have known
of the loan to his brother’s firm before he
delivered the judgment in the case, the
article is malicious and ’not in good faith."
The High Court also examined the misstatements and
inaccuracies in the impugned article and held that there was
no foundation for the suggestion that Khare-Tarkunde was an
impecunious concern and therefore was "lucky" to get the
handsome loan nor for the suggestion that either Thackersey
and his co-Directors in the Bank of India or Thackersey’s
solicitor and his co-Directors in the New India Assurance
Co. went out of their way to grant accom-
784
modation to Khare-Tarkunde. The High Court found no basis
for the insinuation that there was any connection between
the loan and the judgment in the Blitz-Thackersey case or
that Justice Tarkunde knew or might have Known about any
loan having been granted to his brother’s firm. No attempt
was made to justify these suggestions in the return or in
the argument before the High Court and all that was urged
was that the words used by contestable did not give rise to
the said imputations or innuendos and that the contemnor was
only trying to communicate to the public at large what has
been stated before. It is needless to refer to the other
points raised before and decided by the High Court because
none of them has been argued before us.
In this appeal, counsel for appellant no. 2 has made
some attempt to establish that no aspersion was cast on the
integrity of Justice Tarkunde in the article nor was any
imputation of dishonesty made. His second contention is that
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proceedings for contempt for scandalising a Judge have
become obsolete and the proper remedy in such a situation
is for the Judge to institute action for libel. Thirdly,
it is said that there was no evidence before the High Court
that Justice Tarkunde did not know about the transaction or
the dealings between the firm in which his brother was a
partner and the bank of which Thackersey was a director.
If, it is submitted, the allegations made in the article
were truthful or had been made bona fide in the belief that
they were truthful the High Court ought not to have found
appellant no. 2 guilty of contempt. At any rate, according
to counsel, the statements contained in the article only
made out a charge of bias against the Judge and if such a
charge is made it cannot be regarded as contempt.
On the first point our attention has been invited to the
paragraphs in the article containing expression of high
opinion held by the writer of the judiciary in India. It is
suggested that his attempt was only to make a fair and
legitimate criticism of the proceedings in the Thackersey
suit against the "Blitz" weekly. It has been emphasised in
the article that the damages which were awarded to the tune
of Rs. 3 lakhs were almost punitive and that it was a rare
phenomenon that the plaintiff (Thackersey) did not step into
the witness box and also a permanent injunction had been
granted preventing Blitz from printing anything based on the
subject matter of litigation. The law involving freedom of
press fully warranted such criticism of a judgment or of the
proceedings in a suit in a court of law.
It is true that the writer of the article could exercise
his right of fair and reasonable criticism and the matters
which have been mentioned in some of the paragraphs may not
justify any proceedings being taken for contempt but the
article read as a whole leaves
785
no doubt that the conclusions of the High Court were
unexceptionable. It was a skillful attempt on the part of
the writer to impute dishonesty and lack of integrity to
Justice Tarkunde in the matter of Thackersey-Blitz suit, the
imputation being indirect and mostly by innuendo that it was
on account of the transaction and the dealings mentioned in
the article that the suit of Thackersey was decreed in the
sum of Rs. 3 lakhs which was the full amount of damages
claimed by Thackersey. It may be that the article also
suggests that Thackersey and his ,attorneys were to blame
inasmuch as they did not inform the Judge about the
transactions of Khare Tarkunde with the Bank of India with
which Thackersey was associated in his capacity as a
director but that cannot detract from the obvious
implications and insinuations made in various paragraphs of
the article which immediately create a strong prejudicial
impact on the mind of the reader about the lack of
honesty, integrity and impartiality on the part of Justice
Tarkunde in deciding the Thackersey-Blitz suit.
On the second point counsel for appellant no. 2 has
relied a great deal on certain decisions of the Privy
Council- and the Australian and American courts. In the
matter of a Special Reference from the Bahama Islands(1) a
letter was published in a colonial newspaper containing
sarcastic allusions to a refusal by the Chief Justice to
accept ’a gift of pineapples. No judgment was given by the
Privy Council but their lordships made a report to Her
Majesty that the impugned letter though it might have been
made subject of proceedings for libel was not, in the
circumstances, calculated to obstruct or interfere with the
course of justice or the due administration of ,law and,
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therefore, did ,not constitute contempt of court. In that
case there was no question of scandalising the court nor had
any imputation been made against the Chief Justice in
respect of any judicial proceedings pending before him or
disposed of in his court. It is the next decision of the
Privy Council in McLeod v. St.Aubyn(2) on which a great deal
of argument has been built up before us that the courts, at
least in England, have stopped committing anyone for
contempt for publication of scandalising matter respecting
the court after adjudication as well as pending a case
before it. That case came by way of an appeal from an order
of the Acting Chief Justice St. Aubyn of the Supreme Court
of St. Vincent committing one McLeod to prison for 14 days
for alleged contempt of court. It was said inter alia in
the impugned publication that in Mr. Trifford the public had
no confidence and his locus tenons, Mr. St. Aubya was
reducing the judicial character to the level of a clown.
There were several other sarcastic and libelous remarks made
about the Acting Chief Justice. While recognizing
publication of scandalous matter of the court itself ,as a
head of contempt of court as
(1) [1893] A.C. 138.
(2) [1899] A.C. 549.
786
laid down by Lord Hardwicke in Re: Read and Huggonson(1),
Lord Morris proceeded to make the oft-quoted observation
"committals for contempt of Court ’by itself have become
obsolete in this country even though in small colonies
consisting principally of coloured population committals
might be necessary in proper cases". Only a year later Lord
Russel of Killowen C.J., in The Queen v. Gray(2) reaffirmed
that any act done or writing published calculated to bring
a court or a judge of the court in contempt, or to lower his
authority, was a contempt of court. The learned Chief
Justice made it clear that judges and courts were alike open
to criticism and if reasonable argument or expostulation was
offered against any judicial act as contrary to law or the
public good no court could or would treat that as contempt
of court but it was to be remembered that the liberty of the
press was not greater and no less than the liberty of every
subject. In that case it was held that there was personal
scurrilous abuse of a judge and it constituted contempt.
All the three cases which have been discussed ’above were
noticed by the Privy Council in Debi Prasad Sharma & Ors. v.
The King Emperor(3) where contempt proceedings had been
taken in respect of editorial comments published in a
newspaper based or a news item that the Chief Justice of
Allahabad High Court in his administrative capacity had
issued a circular to judicial officers enjoining on them to
raise contributions to the war fund and it was suggested
that he had done a thing which would lower the prestige of
the court in the eyes of the public. This is what was said
at page 224 :-
"In In re a Special Reference from the
Bahama Islands [1893] A.C. 138, the test
applied by the very strong Board which heard
the reference was whether the words complained
of were in the circumstances calculated to
obstruct or interfere with the course of
justice and the due, administration of the
law. In Reg. v. Gray [1900] 2Q.B. 36 it was
shown that the offence of scandalising the
court itself was not obsolete in this country.
A very scandalous attack had been made on a
judge for his judicial utterances while
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sitting in a criminal case on circuit, and it
was with the foregoing opinions on record that
Lord Russel of Killowen C.J. adopting the
expression of Wilmot C.J. in his opinion in
Rex v. Almon (1765) Wilmot’s Notes of Opinions
243, which is the source of much of the
present law on the subject, spoke of the
article complained of as calculated
to lower
the authority of the judge."
It is significant that their lordships made a distinction
between a case where there had been criticism of the
administrative act of
(1) 2 Ark. 471.
(2) [1900] 2 Q.B.D. 36.
(3) 70 I.A. 216.
787
a Chief Justice and an imputation on him for having done
or omitted to have done something in the administration of
justice. It is further noteworthy that the law laid down in
McLeod v. St. Aubyn(1) was not followed and it was
emphasised that Reg. v. Gray(2) showed that the offence of
scandalising the court itself was not obsolete in England.
In Rex v. Editor of the New Statesman(3) an article had been
published in the New Statesman regarding the verdict by
Mr. Justice Savory given in a libel action brought by the
Editor of the "Morning Post" against Dr. Marie Slopes (the
well known advocate of birth control) in which it was said,
inter alia, "the serious point in this case, however, is
that an individual owning to such views as those of Dr.
Marie Stores cannot ’apparently hope for a fair hearing in a
Court presided over by Mr. Justice Avory--and there are so
many Avorys". On behalf of the contemnor McLeod v. St. A
ubyn(1) was sought to be pressed into service. The Lord
Chief Justice in delivering the judgment of the Court said
that the principle applicable to such cases was the one
stated in Reg. v. Gray(2) and relied on the observations of
Lord Russel at p. 40. It was observed that the article
imputed unfairness and lack of impartiality to a judge in
the discharge of his judicial duties. The gravamen of the
offence was that by lowering his authority it interfered
with the performance of his judicial functions. Again in
Ambard v. Attorney General for Trinidad and Tobago(4) the
law enunciated in Reg. v. Gray(2) by Lord Russel of
Killowen was applied and it was said at page 335:
"But whether the authority and position
of an individual judge, or the due
administration of justice, is concerned, no
wrong is committed by any member of the public
who exercises the ordinary right of
criticising, in good faith, in private or
public, the public act done in the seat of
justice. The path of criticism is a public
way; the wrong headed are permitted to err
therein; provided that members of the public
abstain from imputing improper motives to
those taking part in the administration of
justice, and are genuinely exercising a right
of criticism, and not acting in malice, or
attempting to impair the administration of
justice, they are immune. Justice is not a
cloistered virtue; she must be allowed to
suffer the scrutiny and respectful, even
though spoken, comments of ordinary men."
It was, however, held that there was no evidence upon which
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the court could find that the alleged contemnor had exceeded
fair and temperate criticism and that he had acted with
untruth or malice
(1) [1899] A .C. 549.
(2) [1900] 2 Q.B.D. 36.
(3) [1928] 44 T.L.R. 301.
(4) [1936] A.C. 322.
788
and with the direct object of bringing the administration of
justice into disrepute.
Lord Denning M.R. in Reg v. Commissioner of Police of
the Metropolis, Ex parte Blackburn (No..2)(1) made some
pertinent observations about the right of every man, in
Parliament or out of it, in the Press or over the broadcast,
to make fair and even outspoken comment on matters of public
interest. In the words of the Master of Rolls, "those who
comment can deal faithfully with all that is done in a court
of justice. They can say that we are mistaken, and our
decisions erroneous, whether they are subject to appeal or
not. All we would ask is that those who criticise us will
remember that, from the nature of our office, we cannot
reply to their criticism. We cannot enter into public
controversy. Still less into political controversy. We must
rely on our conduct itself to be its own vindication." In
that case Mr. Quintin Hogg had written an article in "Punch"
in which he had been critical of the Court of Appeal and had
even made some erroneous statements. But reading of the
article the salient passage of which is set out in the
judgment of the Master of the Rolls makes it quite clear
that there was no attempt to scandalise the Court and impute
any dishonourable or dishonest motives or to suggest any
lack of integrity in any particular Judge.
Oswald in his book on the Contempt of Court has
expressed the view that it would be going a great deal too
far to say that commitments for contempt of court by
scandalising the Court itself have become obsolete, and that
there does not seem to be any good reason for ignoring the
principles which govern the numerous early cases on the
subject.
The American and the Australian cases viz., John D.
Pennekamp and The Miami Herald Publishing Co. v. State of
Florida(2) and Bell v. Stewart(a) to which reference h.as
been made on be- half of appellant No. 2 can hardly be of
much assistance because in this country principles have
become crystallized by the decisions of the High Courts and
of this Court in which the principles followed by English
Courts have been mostly adopted.
We would now advert to the decisions of this Court. It
was held in Bathina Ramakrishna Reddy v. The State of
Madras(4) that the fact that the defamation of a Judge of a
subordinate court constitutes an offence under s. 499 of the
Indian Penal Code did not oust the jurisdiction of the High
Court to take cognizance of the act as a contempt of court.
In that .case in an article in a Telugu weekly it was
alleged that the Stationary Sub-Magistrate of Kovvur was
known to the people of the locality for harassing
(1) [1968].2 W.L.R. 1206.
(2) 328 U.S. 331.
(3 ) 28 Com. L.R. 419.
(4) [1952] S.C.R. 425.
789
litigants in various ways etc. Mukherjea, J., (as he then
was) who delivered the judgment described the article as a
scurrilous attack on the integrity and honesty of a judicial
officer. It was observed that if the allegations were
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false, they could not undermine the confidence of the public
in the administration of justice and bring the judiciary
into disrepute. The .appellant there had taken the sole
responsibility regarding the publication of the article and
was not in a position to substantiate by evidence any of the
allegations made therein. It was held that he could not be
said to have acted bona fide, "even if good faith can be
held to be a defence at all in a proceeding for contempt".
The decision in Re: The Editor, Printer and Publisher of
"The Times of India" and In re Aswini Kumar Ghose and Anr.
v. Arabinda Bose & Anr.(1) is very apposite and may be.next
referred to. In a leading article in "The Times of India"
on the judgment of this Court in Aswini Kumar Ghose v.
Arabinda Bose & Ant.(2) the burden was that if in a
singularly oblique and infelicitous manner the Supreme
Court had by a majority decision tolled the knell of the
much maligned dual system prevailing in the Calcutta and
Bombay High Courts by holding that the right to practise
in any High Court conferred on advocates of the Supreme
Court had made the rules in force in those High Courts
requiring advocates appearing on the original side to be
instructed by attorneys inapplicable to them. This is what
was said by Mahajan, J., (as he then was) speaking for the
Court:
"No objection could have been taken to the
article had it merely preached to the courts
of law the sermon of divine detachment.
But when it proceeded to attribute improper
motives to the Judges, it not only
transgressed the limits of fair and bona fide
criticism but had a clear tendency ’to affect
the dignity and prestige of this Court. The
article in question was thus a gross contempt
of court. It is obvious that if an
impression is created in the minds of the
public that the judges in the highest Court in
the land act on extraneous considerations in
deciding cases, the confidence of the whole
community in the administration of justice is
bound to be undermined and no greater mischief
than that can possibly be imagined."
The Editor, Printer and Publisher of the newspaper tendered
an apology which was accepted; but this Court concurred in
the expression of views in Ambard v. Attorney General of
Trinidad(3), a passage from which has already been
extracted. The guiding principles to be followed by courts
in contempt proceedings were enunciated in Brahma Prakash
Sharma & Ors. v. The State of
(1) [1953] S.C.R. 215.
(2) [1953] S.C.R. 1.
(3) [1936] A.C. 322.
790
Uttar Pradesh(1). The judgment again was delivered by
Mukherjea, J., (as he then was) and the English decisions
including those of the Privy Council were discussed. It is
necessary to refer only to the principles laid down for
cases of the present kind i.e. scandalising the court. It
has been observed that there are two primary considerations
which should weigh with the court when it is called upon to
exercise summary power in cases of contempt committed by
"scandalising" the court itself. In the first place, the
reflection on the conduct or character of a Judge in
reference to the discharge of his judicial duties would not
be contempt, if such reflection is made in the exercise of
the right of fair and reasonable criticism which every
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citizen possesses in respect of public acts done in the
seat of justice. Secondly, when .attacks or comments are
made on a Judge or Judges disparaging in character and
derogatory to their dignity, care should be taken to
distinguish between what is a libel on a judge and what
really amounts to contempt of court. If, however, the
publication of the disparaging statement is calculated to
interfere with the due course of justice or proper
administration of law by such court, it can be punished
summarily as contempt. "it will be ’an injury to the public
if it tends to create an apprehension in the minds of the
people regarding the integrity, ability or fairness of the
judge or to deter actual and prospective litigants from
placing complete reliance upon the court’s administration
of justice, or if it is likely to cause embarrassment in the
mind of the judge himself in the discharge of his judicial
duties. It is well established that it is not necessary to
prove affirmatively that there has been an actual
interference with the administration of justice by reason of
such defamatory statement; it is enough if it is likely, or
tends is ,any way, to interfere with the proper
administration of law." In that case it was held that the
contempt was of a technical nature. This was based
apparently on the reason that the Members of the Bar who had
passed a resolution attributing incompetency, lack of
courtesy etc. and had referred to complaints against two
officers, one a Judicial Magistrate and the other a Revenue
Officer and had sent those complaints to the District
Magistrate, Commissioner and the Chief Secretary in the
State and secondly because very little publicity had been
given to the statement.
In Re: Hira Lal Dixit & two Ors.(2) the above
principles were ,applied and reaffirmed. In that case words
which had been used in a poster which was published had the
necessary implication that the judges who decided in favour
of the Government were rewarded by the Government with
appointments to this Court. Although this case was not
one of scandalizing of the court but the question that was
posed was whether the offending passage was of such
character and import or made in such circum-
(1) [1953] S.C.R. 1169.
(2) [1955] 1 S.C.R. 677.
791
stances as would tend to hinder or obstruct or interfere
with the due course of administration of justice by this
Court and it was answered in the affirmative and the
contemnor was held guilty of Contempt of Court. In State of
Madhya Pradesh v. Revashankar(1) an application was made
under s. 528 of the Code of Criminal Procedure in certain
criminal proceedings containing serious aspersions against a
Magistrate, Mr. N.K. Acharya. Reliance was once again placed
on Brahm Prakash Sharma’s(2) case and the principles laid
therein. It was held that the aspersions which had been
made amounted to something more than a mere intentional
personal insult to the Magistrate; they scandalised the
court itself and impaired the administration of justice and
that proceedings under the contempt of court could ’be taken
against the contemnor.
There can be no manner of doubt that in this country the
principles which should govern cases of the present kind are
now fully settled by the previous decisions of this Court.
we may re; state the result of the discussion of the above
cases on this head of contempt which is by no means
exhaustive.
(1 ) It will not be right to say that
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committals for contempt for scandalizing the
court have become obsolete.
(2) The summary jurisdiction by way of
contempt must be exercised with great care and
caution and only when its exercise is
necessary for the proper administration of law
and justice.
(3) It is open to anyone to express fair,
reasonable and legitimate criticism of any act
or conduct of a judge in his judicial capacity
or even to make a proper and fair comment on
any decision given by him because "justice is
not a cloistered virtue and she must be
allowed to suffer the scrutiny and respectful,
even though outspoken, comments of ordinary
men".
(4) A distinction must be made between .a
mere libel or defamation of a judge and what
amounts to a contempt of the court.
The test in each case would be
whether the impugned publication is a mere
defamatory attack on the judge or whether it
is calculated to interfere with the due course
of justice or the proper administration of law
by his court. It is only in the latter case
that it wilt be punishable as Contempt.
(1) [1959] S.C.R. 1367.
(2) [1953] S.C.R. 1169.
792
(5 ) Alternatively the test will be
whether the wrong is done to the judge
personally or it is done to the public. To
borrow from the language of Mukherjea, J. (as
he then was) (Brahma Prakash Sharma’s case)(1)
the publication of a disparaging statement
will be an injury to the public if it tends
to create an apprehension in the minds of the
people regarding the integrity, ability or
fairness of the judge or to deter actual and
prospective litigants from placing complete
reliance upon the court’s administration of
justice or if it is likely to cause
embarrassment in the mind of the judge himself
in the discharge of his judicial duties.
As regards the third contention no attempt was made
before the High Court to substantiate that the facts stated
in the article were true or were rounded on correct data. It
may be that truthfulness or factual correctness is a good
defence in an action for libel, but in the law of contempt
there are hardly any English or Indian cases in which such
defence has been recognized. It is true that in the case of
Bathina Ramakrishna Reddy(2) there was some discussion about
the bona fides of the person responsible for the publication
but that was apparently done to dispose of the contention
which had been raised on the point. It is quite clear that
the submission made was considered on the assumption that
good faith can be held to be a defence in a proceeding for
contempt. The words "even if good faith can be held to be a
defence at all in a proceeding for contempt" show that this
Court did not lay down affirmatively that good faith can be
set up as a defence in contempt proceedings. At any rate,
this point is merely of academic interest because no attempt
was made before the High Court to establish the truthfulness
of the facts stated in the article. On the other hand, it
was established that some of the material allegations were
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altogether wrong and incorrect.
Lastly the submission that the statements contained in
the article made out only a charge of bias against the judge
and this cannot constitute contempt has to be stated to be
rejected. It is a new point and was never raised before the
High Court. Moreover the suggestion that the charge in the
article was of legal bias which meant that Justice Tarkunde
had some sort of pecuniary interest in Khare-Tarkunde which
had the transactions with the bank of which Thackersey was a
Director is wholly baseless. Counsel had to agree that
Justice Tarkunde was neither a shareholder nor was there
anything to show that he had any other interest m Khare-
Tarkunde. The mere fact that his brother happens
(1) [1953] S.C.R. 1169.
(2) [1952] S.C.R. 425.,
793
to have a holding in it cannot per se establish that Justice
Tarkunde would also have some financial or pecuniary
interest therein. It is not possible to accept nor has such
extreme position been taken by the counsel for appellant no.
2 that there is any bar to a brother or ’a near relation of
a judge from carrying on any business, profession or
avocation. The entire argument on this point is wholly
without substance.
The appellant No. 2 showed no contrition in the matter
of publication of the impugned article. lie never even
tendered an unqualified apology. The High Court, in these
circumstances, was fully justified in punishing him for
contempt of court and in awarding the sentence which
was imposed. In the impugned article there was a clear
imputation of impropriety, lack of integrity and oblique
motives to Justice Tarkunde in the matter of deciding the
Thackersey-Blitz suit which, on the principles already
stated, undoubtedly constituted contempt of court.
The appeal fails and is hereby dismissed.
V.P.S. Appeal dismissed.
794