Full Judgment Text
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CASE NO.:
Contempt Petition (crl.) 10 of 2001
PETITIONER:
IN RE:ARUNDHATI ROY.... CONTEMNER
Vs.
RESPONDENT:
---
DATE OF JUDGMENT: 06/03/2002
BENCH:
G.B. Pattanaik & R.P. Sethi
JUDGMENT:
SETHI,J.
’Rule of Law’ is the basic rule of governance of any
civilised democratic polity. Our Constitutional scheme is
based upon the concept of Rule of Law which we have
adopted and given to ourselves. Everyone, whether
individually or collectively is unquestionably under the
supremacy of law. Whoever the person may be, however
high he or she is, no-one is above the law notwithstanding
how powerful and how rich he or she may be. For
achieving the establishment of the rule of law, the
Constitution has assigned the special task to the judiciary in
the country. It is only through the courts that the rule of law
unfolds its contents and establishes its concept. For the
judiciary to perform its duties and functions effectively and
true to the spirit with which it is sacredly entrusted, the
dignity and authority of the courts have to be respected and
protected at all costs. After more than half a century of
independence, the judiciary in the country is under a
constant threat and being endangered from within and
without. The need of the time is of restoring confidence
amongst the people for the independence of judiciary. Its
impartiality and the glory of law has to be maintained,
protected and strengthened. The confidence in the courts of
justice, which the people possess, cannot, in any way, be
allowed to be tarnished, diminished or wiped out by
contumacious behaviour of any person. The only weapon
of protecting itself from the onslaught to the institution is
the long hand of contempt of court left in the armoury of
judicial repository which, when needed, can reach any neck
howsoever high or far away it may be. In In Re: Vinay
Chandra Mishra (the alleged contemner) [AIR 1995 SC
2348] this Court reiterated the position of law relating to the
powers of contempt and opined that the judiciary is not only
the guardian of the rule of law and third pillar but in fact the
central pillar of a democratic State. If the judiciary is to
perform its duties and functions effectively and true to the
spirit with which they are sacredly entrusted to it, the
dignity and authority of the courts have to be respected and
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protected at all costs. Otherwise the very corner-stone of
our constitutional scheme will give way and with it will
disappear the rule of law and the civilized life in the society.
It is for this purpose that the courts are entrusted with
extraordinary powers of punishing those who indulge in
acts, whether inside or outside the courts, which tend to
undermine the authority of law and bring it in disrepute and
disrespect by scandalising it. When the court exercises this
power, it does not do so to vindicate the dignity and honour
of the individual judge who is personally attacked or
scandalised, but to uphold the majesty of the law and of the
administration of justice. The foundation of the judiciary is
the trust and the confidence of the people in its ability to
deliver fearless and impartial justice. When the foundation
itself is shaken by acts which tend to create disaffection and
disrespect for the authority of the court by creating distrust
in its working, the edifice of the judicial system gets eroded.
No person can flout the mandate of law of respecting
the courts for establishment of rule of law under the cloak of
freedoms of speech and expression guaranteed by the
Constitution. Such a freedom is subject to reasonable
restrictions imposed by any law. Where a provision, in the
law, relating to contempt imposes reasonable restrictions, no
citizen can take the liberty of scandalising the authority of
the institution of judiciary. Freedom of speech and
expression, so far as they do not contravene the statutory
limits as contained in the Contempt of Courts Act, are to
prevail without any hindrance. However, it must be
remembered that the maintenance of dignity of courts is one
of the cardinal principles of rule of law in a democratic set
up and any criticism of the judicial institution couched in
language that apparently appears to be mere criticism but
ultimately results in undermining the dignity of the courts
cannot be permitted when found having crossed the limits
and has to be punished. This Court in In Re: Harijai Singh
& Another [1996 (6) SCC 466 has pointed out that a free
and healthy Press is indispensable to the function of a true
democracy but, at the same time, cautioned that the freedom
of Press is not absolute, unlimited and unfettered at all times
and in all circumstances. Lord Dening in his Book "Road to
Justice" observed that Press is the watchdog to see that
every trial is conducted fairly, openly and above board but
the watchdog may sometimes break loose and has to be
punished for misbehaviour. Frankfurther, J. in Pennekamp
v. Florida [(1946) 90 Led 1295 at p.1313] observed:
"If men, including Judges and journalists were
angels, there would be no problems of contempt
of Court. Angelic Judges would be undisturbed by
extraneous influences and angelic journalists
would not seek to influence them. The power to
punish for contempt, as a means of safeguarding
Judges in deciding on behalf of the community as
impartially as is given to the lot of men to decide,
is not a privilege accorded to Judges. The power
to punish for contempt of court is a safeguard not
for Judges as persons but for the function which
they exercise."
The law of contempt has been enacted to secure public
respect and confidence in the judicial process. If such
confidence is shaken or broken, the confidence of the
common man in the institution of judiciary and democratic
set up is likely to be eroded which, if not checked, is sure to
be disastrous for the society itself.
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In this backdrop of the mandate of rule of law, we are
called upon to deal with the case of the respondent against
whom suo motu contempt proceedings have been initiated
by this Court. The respondent, who is stated to be an author
of name and fame, has landed herself in the dock of the
court, apparently by drifting away from the path on which
she was traversing by contributing to the art and literature.
During whole of the proceeding she has not shown any
repentance or remorse and persistently and consistently tried
to justify her action which, prima facie, was found to be
contemptuous. To frustrate the present proceedings, the
respondent has resorted to all legal tactics and pretences. In
view of this we have no option but to deal with the case on
its merits, not being influenced by any other factor or
circumstance except our commitment to protect the dignity
and respect of the institution of judiciary so that the
confidence of the common man is not shaken in the
institution.
The facts of the case, which are not seriously disputed,
are that an organisation, namely, Narmada Bachao Andolan
filed a petition under Article 32 of the Constitution of India
being Writ Petition No.319 of 1994 in this Court. The
petitioner was a mvoement or andolan, whose leaders and
members were concerned about the alleged adverse
environmental impact of the construction of the sardar
Sarovar Reservoir Dam in Gujarat and the far-reaching and
tragic consequences of the displacement of hundreds of
thousands of people from their ancestral homes that would
result from the submerging of vast extents of land, to make
up the reservoir. During the pendency of the writ petition
this Court passed various orders. By one of the orders, the
Court permitted to increase the height of the dam to RL 85
meters which was resented to and protested by the writ
petitioners and others including the respondent herein. The
respondent Arundhati Roy, who is not a party to the writ
proceedings, published an article entitled "The Greater
Common Good" which was published in Outlook Magazine
and in some portion of a book written by her. Two judges
of this Court, forming the three-judge Bench felt that the
comments made by her were, prima facie, a
misrepresentation of the proceedings of the court. It was
observed that judicial process and institution cannot be
permitted to be scandalised or subjected to contumacious
violation in such a blatant manner, it had been done by her.
The action of the respondent had caused the court much
anguish and when the court expressed its displeasure on the
action of the respondent in making distorted writing or
manner in which leaders of the petitioner Ms.Meda Patkar
and one Dharmadikhari despite giving assurance to the
court acted in breach of the injunction, the Court observed:
"We are unhappy at the way the leaders of NBA
and Ms.Arundhati Roy have attempted to
undermine the dignity of the Court. We expected
better behaviour from them."
Showing its magnanimity, the Court declared:
"After giving this matter our thoughtful
consideration and keeping in view the importance
of the issue of resettlement and rehabilitation of
the PAFs, which we have been monitoring for the
last five years, we are not inclined to initiate
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proceedings against the petitioner, its leaders or
Ms.Arundhati Roy. We are of the opinion, in the
larger interest of the issues pending before us, that
we need not pursue the matter any further. We,
however, hope that what we have said above
would serve the purpose and the petitioner and its
leaders would hereafter desist from acting in a
manner which has the tendency to interfere with
the due administration of justice or which violates
the injunctions issued by this Court from time to
time."
The third learned Judge also recorded his disapproval
of the statement made by the respondent herein and others
and felt that as the court’s shoulders are broad enough to
shrug off their comments and because the focus should not
shift from the resettlement and rehabilitation of the oustees,
no action in contempt be taken against them.
However, after the judgment was pronounced in IA
No.14 of 1999 on 15th October, 1999 (reported at 1999 (8)
SCC 308), an incident is stated to have taken place on 30th
December, 2000 regarding which Contempt Petition No.2 of
2001 was filed by J.R. Parashar, Advocate and others.
According to the appellgations made in that petition, the
respondents named therein, led a huge crowd and held a
Dharna in front of this Court and shouted abusive slogans
against the court including slogans ascribing lack of
integrity and dishonesty to this institution. It was alleged
that when the petitioners therein protested, they were
attacked and assaulted by the respondents. In the evening
on the same day, the respondents are stated to have
attacked, abused and assaulted the petitioners. A complaint
was stated to have been lodged with the Tilak Marg Police
Station on the next day. In the aforesaid contempt
proceeding notices were issued to the respondents in
response to which they filed separate affidavits. All the
three respondents therein admitted that there was a Dharna
outside the gates of this Court on 30th December, 2000
which was organised by Narmada Bachao Andolan and the
gathered crowd were persons who lived in the Narmada
Valley and were aggrieved by the majority judgment of this
Court relating to the building of the dam on the Narmada
River. In her affidavit the respondent, amongst other
averments, had stated:
"On the grounds that judges of the Supreme Court
were too busy, the Chief Justice of India refused
to allow a sitting judge to head the judicial
enquiry into the Tehelka scandal, even though it
involves matters of national security and
corruption in the highest places.
Yet when it comes to an absurd, despicable,
entirely unsubstantiated petition in which all the
three respondents happen to be people who have
publicly -though in markedly different ways -
questioned the policies of the government and
severely criticized a recent judgment of the
Supreme Court, the Court displays a disturbing
willingness to issue notice.
It indicates a disquieting inclination on the part of
the court to silence criticism and muzzle dissent,
to harass and intimidate those who disagree with
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it. By entertaining a petition based on an FIR that
even a local police station does not see fit to act
upon, the Supreme Court is doing its own
reputation and credibility considerable harm."
(EMPHASIS SUPPLIED)
The assertions in the aforesaid contempt petition
attributed that the contemnors shouted abusive slogans
against the court including slogans ascribing lack of
integrity and dishonesty to the institution undoubtedly made
the action of the contenmor gross contemptuous and as such
the court had initiated the contempt proceedings by issuing
notice. But in view of the denial of the alleged contemnors
to the effect that they had never shouted such slogans and
used such abusive words as stated in the contempt petition,
instead of holding an inquiry and permitting the parties to
lead evidence in respect of their respective stand, to find out
which version is correct, the court though it fit not to adopt
that course and decided to drop the proceedings. But in the
very show cause that had been filed by the respondent No.3,
Smt.Arundhati Roy, apart from denying that she had not
used any such words as ascribed to her, she had stated in
three paragraphs, as quoted earlier which were absolutely
not necessary, after denying that she had never uttered the
words ascribed to her and those paragraphs having been
found prima-facie contemptuous, the suo-motu proceedings
had been initiated and notice had been issued. However, the
Court felt that respondent No.3 therein (Arundhati Roy) was
found to have, prima facie, committed contempt as she had
imputed motives to specific courts for entertaining litigation
and passing orders against her. She had accused courts of
harassing her as if the judiciary were carrying out a personal
vendetta against her. She had brought in matters which
were not only not pertinent to the issues to be decided but
has drawn uninformed comparisons to make statements
about this Court which do not appear to be protected by law
relating to fair criticism. It was stated by her in the court
that she stood by the comments made by her even if the
same are contumacious. For the reason recorded therein,
the Court issued notice in the prescribed form to the
respondent herein asking her to show cause as to why she
should not be proceeded against for contempt for the
statements in the offending three paragraphs of her affidavit,
reproduced hereinearlier.
In her reply affidavit, the respondent has again
reiterated what she had stated in her earlier affidavit. It is
contended that as a consequence of the Supreme Court
judgment the people in the Narmada Valley are likely to
lose their homes, their livelihood and their histories and
when they came calling on the Supreme Court, they were
accused of lowering the dignity of the court which,
according to her is a suggestion that the dignity of the court
and the dignity of the Indian citizens are incompatible,
oppositional, adversarial things. She stated:
"I believe that the people of the Narmada valley
have the constitutional right to peacefully against
what they consider an unjust and unfair
judgment. As for myself, I have every right to
participate in any peaceful protest meeting that I
choose to. Even outside the gates of the Supreme
Court. As a writer I am fully entitled to put
forward my views, my reasons and arguments for
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why I believe that the judgment in the Sardar
Sarovar case is flawed and unjust and violates the
human rights of Indian citizens. I have the right
to use all my skills and abilities such as they are,
and all the facts and figures at my disposal, to
persuade people to my point of view."
She also stated that she has written and published
several essays and articles on Narmada issue and the
Supreme Court judgment. None of them was intended to
show contempt to the court. She justified her right to
disagree with the court’s view on the subject and to express
her disagreement in any publication or forum. In her belief
the big dams are economically unviable, ecologically
destructive and deeply undemocratic. In her affidavit she
has further stated:
"But whoever they are, and whatever their
motives, for the petitioners to attempt to misuse
the Contempt of Court Act and the good offices
of the Supreme Court to stifle criticism and stamp
out dissent, strikes at the very roots of the notion
of democracy.
in recent months this Court has issued judgments
on several major public issues. For instance, the
closure of polluting industries in Delhi, the
conversion of public transport buses from diesel
to CNG, and the judgment permitting the
construction of the Sardar Sarovar Dam to
proceed. All of these have had far-reaching and
often unanticipated impacts. They have
materially affected, for better or for worse, the
lives and livelihoods of millions of Indian
citizens. Whatever the justice or injustice of
these judgments, whatever their finer legal points,
for the court to become intolerant of criticism or
expressions of dissent would mark the beginning
of the end of democracy.
An ’activist’ judiciary, that intervenes in public
matters to provide a corrective to a corrupt,
dysfunctional executive, surely has to be more,
not less accountable. To a society that is already
convulsed by political bankruptcy, economic
distress and religious and cultural intolerance,
any form of judicial intolerance will come as a
crippling blow. If the judiciary removes itself
from public scrutiny and accountability, and
severs its links with the society that it was set up
to serve in the first place, it would mean that yet
another pillar of Indian democracy will crumble.
A judicial dictatorship is a fearsome a prospect as
a military dictatorship or any other form of
totalitarian rule.
The Tehelka tapes broadcast recently on a
national television network show the repulsive
sight of Presidents of the Bhartiya Janata Party
and the Samata Party (both part of the ruling
coalition) accepting bribes from spurious arms
dealers. Though this ought to have been
considered prima facie evidence of corruption,
yet the Delhi High Court declined to entertain a
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petition seeking an enquiry into the defence deals
that were referred to in the tapes. The bench took
strong exception to the petitioner approaching the
court without substantial evidence and even
warned the petitioner’s counsel that if he failed to
substantiate its allegations, the court would
impose costs on the petitioner.
On the grounds that judges of the Supreme Court
were too busy, the Chief Justice of India refused
to allow a sitting judge to head the judicial
enquiry into the Tehelka scandal, even though it
involves matters of national security and
corruption in the highest places.
Yet when it comes to an absurd, despicable,
entirely unsubstantiated petition in which all the
three respondents happen to be people who have
publicly -though in markedly different ways -
questioned the policies of the government and
severely criticized a recent judgment of the
Supreme Court, the Court displays a disturbing
willingness to issue notice.
It indicates a disquieting inclination on the part of
the court to silence criticism and muzzle dissent,
to harass and intimidate those who disagree with
it. By entertaining a petition based on an FIR
that even a local police station does not see fit to
act upon, the Supreme Court is doing its own
reputation and credibility considerable harm.
In conclusion, I wish to reaffirm that as a writer I
have right to state my opinions and beliefs. As a
free citizen of India I have the right to be part of
any peaceful dharna, demonstration or protest
march. I have the right to criticize any judgment
of any court that I believe to be unjust. I have the
right to make common cause with those I agree
with. I hope that each time I exercise these rights
I will not dragged to court on false charges and
forced to explain my actions."
We have heard the learned counsel appearing for the
parties at length and perused the relevant record.
Before dealing with the main case we propose to
dispose of the preliminary objection raised by Shri Shanti
Bhushan, Senior Advocate who has appeared for the
respondent-contemner. Without filing a formal application
it has been urged on behalf of the respondent that the
Hon’ble Judges who issued notice in Criminal Petition No.2
of 2001 should not be a party to the present proceeding and
the case be transferred to some other Bench, allegedly on
the ground that the respondent-contemner had reasonable
apprehension of bias on the part of the said Judges to whom
she claims to have allegedly attributed motives. Such a
prayer was made after the commencement of the
proceedings which, we feel, was not bonafide. The
apprehension expressed by the respondent much less being
reasonable in fact has no basis. It has to be kept in mind
that notice was issued to the respondent not for having
attributed motives to a particular judge but for imputing
motives to the court in general for allegedly harassing her as
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if the judiciary were carrying out personal vendetta against
her. The contemptuous part of her affidavit, noticed
hereinbefore, does not attribute any motive or make any
allegation against any judge. It has to be kept in mind that
the present proceedings are distinguishable from the
proceedings contemplated under Section 14 of the Contempt
of Courts Act (hereinafter referred to as "the Act"). Initially
on the petition of one J.R. Parashar, notice had been issued
by a Bench constituting of G.B. Patnaik and U.C.
Banerjee,JJ. When the contemners appeared in that case,
and filed show cause, no prayer had been made seeking
recusal of any judge. Finally that application registered as
Contempt Petition No.2/2001 was heard by a Bench of G.B.
Patnaik and Ruma Pal, JJ. and disposed of by the judgment
dated 28th August, 2001 discharging the contemners and
initiating a suo motu proceedings because of disparaging
comments in the show cause filed by Arundhati Roy. In
pursuance to such notice, the proceeding was registered as
Suo Motu Contempt Petition (Criminal) No.10/2001. In the
proceeding contemner appeared on 29.10.2001 and filed her
show cause. No prayer for recusal had been made on that
day. When the case was taken up for hearing on 15.1.2002,
prayer for recusal had been made, which was not allowed.
The narration of facts indicate only a frustration on the part
of the contemner and such belated prayer for bench
haunting is to be curbed as it would be against the
administration of justice.
In the instant case cognizance of the criminal contempt
against the respondent has been taken by the COURT, suo
motu under Section 15 of the Act. Whereas sub-section (2)
of Section 14 permits a person charged with the contempt to
have charge against him tried by some Judge other than the
judge or judges in whose presence or hearing the offence is
alleged to have been committed and the court is of opinion
that it is practicable to do so. No such provision is made
under Section 15 of the Act. Obviously for the reason that
when action is at the instance of the COURT, there is no
question of any motive of and prejudice from any Judge.
Accepting the plea raised by the respondent would amount
to depriving all the Judges of the court to hear the matter
and thus frustrate the contempt proceedings, which cannot
be the mandate of law. The apprehension caused by the
respondent is imaginary, without basis and not bonafide.
The oral prayer made for one of us not to be a member of
the Bench, hearing the matter, is rejected.
Mr.Shanti Bhushan made another endeavour to defer
the proceeding, allegedly on the ground of reference made
to the Constitution Bench vide an order in Dr.Subramanian
Swamy v. Rama Krishna Hegde [2000 (10) SCC 331]. It is
contended that as truth can be pleaded as a defence in
contempt proceedings and that the decision of this Court in
Perspective Publications (P) Ltd. v. State of Maharashtra
[1969 (2) SCR 779] has been referred to be reconsidered,
the present proceedings are required to await the judgment
of the Constitution Bench. Such a submission is without
any substance inasmuch as the question of truth being
pleaded as defence, in the present case, does not arise.
Contempt proceedings have been initiated against the
respondent on the basis of the offending and contemptuous
part of the reply affidavit making wild allegations against
the court and thereby scandalised its authority. There is no
point or fact in those proceedings which requires to be
defended by pleading the truth.
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After referring to various judgments of this Court and
courts of other countries, the learned Senior Counsel for the
respondent has asserted that no proceedings for contempt
can be initiated against any person on the ground of his/ her
allegedly scandalising the court. Much reliance is placed
upon the judgment in Brahma Prakash Sharma & Ors. v.
The State of Uttar Pradesh [1953 SCR 1169]. In that case
contempt proceedings were initiated against the members of
the Executive Committee of the District Bar Association at
Muzaffarnagar in the State of Uttar Pradesh because of
certain resolutions passed by the Committee in which it was
alleged that the two Judicial Officers were thoroughly
incompetent in law, did not inspire confidence in their
judicial work, were given to stating wrong facts when
passing orders and were over-bearing and discourteous to
the litigant public and the lawyers alike. A number of other
defects were also catalogued in the resolution passed by the
Association. The High Court directed the issue of notice to
the members of the Committee of the Bar Association to
show cause why they should not be dealt with for contempt
of court in respect of certain portion of the resolution which
was set out in the notice. In answer to those notices, the
alleged contemners appeared and filed affidavits. The
Bench, hearing the case, came to the conclusion that with
the exception of the two alleged contemners, who were not
the members of the Executive Committee at the relevant
date, the remaining six were guilty of contempt of court. It
was, however, held that the aforesaid six members of the
Bar were not actuated by any personal or improper motive
and the statement made on their behalf was that their object
not intended to interfere with but to improve the
administration of justice. Nevertheless it was observed that
the terms used in the resolution were little removed from
personal abuse and whatever might have been the motive,
they were guilty of contempt. In concluding portion of the
judgment it was stated:
"We think that the opposite parties acted under a
misapprehension as to the position, but they have
expressed their regrets and tendered an
unqualified apology. In the circumstances, we
accept their apology, but we direct that they pay
the costs of the Government Advocate which we
assess at Rs.300."
The High Court in its judgment had concluded that the
allegations made against the judicial officers come within
the category of contempt which is committed by
"scandalising the court". The learned judges observed on
the authority of the pronouncement of Lord Russel in Reg.
v. Gray [(1900) 2 G.B. 36] that this class of contempt is
subject to one important qualification. In the opinion of the
judges of the High Court, the complaint lodged by the
contemners exceeded the bounds of fair and legitimate
criticism. This Court referred to various judgments of
English Courts and concluded:
"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 libellor in a proper action if
he so chooses. If, however, the publication of the
disparaging statement is calculated to interfere
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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
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 in any way, to interfere
with the proper administration of law."
(EMPHASIS SUPPLIED)
We cannot agree with the submission made on behalf of the
learned counsel for the respondent that in the light of
Brahma Prakash Sharma’s case no contempt proceedings
can be initiated against the respondent for scandalising the
court. No wrong appears to have been done to any judge
personally by filing the offending affidavit but the
contemptuous part of the affidavit demonstrates the wrong
done to the public. The respondent has tried to cast an
injury to the public by creating an impression in the mind of
the people of this backward country regarding the integrity,
ability and fairness of the institution of judiciary.
Similarly reliance of Shri Shanti Bhushan, Senior
Advocate on Shri Baradakanta Mishra v. The Registrar of
Orissa High Court & Anr [1974 (1) SCC 374] is of no great
help to his client. After referring to the definition of
criminal contempt in Section 2(c) of the Act, the court
found that the terminology used in the definition is
borrowed from the English Law of contempt and embodies
certain concepts which are familiar to that law which, by
and large, was applied in India. The expressions
"scandalize", "lowering the authority of the court",
"inteference", "obstruction" and "administration of justice"
have all gone into the legal currency of our sub-continent
and have to be understood in the sense in which they have
been so far understood by our courts with the aid of English
Law, where necessary. Sub-clause(i) of the definition was
held to embody the concept of scandalisation, as discussed
by Halsbury’s Laws of England, 3rd Edition in Volume 8,
page 7 at para 9. Action of scandalising the authority of the
court has been regarded as an "obstruction" of public justice
whereby the authority of the court is undermined. All the
three clauses of the definition were held to justify the
contempt in terms of obstruction of or interference with the
administration of justice. It was declared that the Act
accepts what was laid down by the Privy Council and other
English authorities that proceedings in contempt are always
with reference to the administration of justice. The
scandalisation within the meaning of sub-section (i) must be
in respect of the court or the judge with reference to
administration of justice. This Court concluded that the
courts of justice are, by their constitution, entrusted with
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functions directly connected with the administration of
justice, and it is the expectation and confidence of all those
who have or likely to have business therein that the court
perform all their functions on a high level of rectitude
without fear or favour, affection or ill-will. It is this
traditional confidence in courts of justice that the justice
will be administered to the people which is sought to be
protected by proceedings in contempt. The object obviously
is not to vindicate the judge personally but to protect the
public against any undermining of their accustomed
confidence in the institution of the judiciary. Scandalisation
of the court was held to be a species of contempt which may
take several forms. Krishna Iyer, J. while concurring with
the main judgment authored by Palekar, J. observed that the
dilemma of the law of contempt arises because of the
constitutional need to balance two great but occasionally
conflicting principles - freedom of expression and fair and
fearless justice. After referring to the judgments of English,
American and Canadian Courts, he observed:
"Before stating the principles of law bearing on
the facets of contempt of court raised in this case
we would like to underscore the need to draw the
lines clear enough to create confidence in the
people that this ancient and inherent power,
intended to preserve the faith of the public in
public justice, will not be so used as to provoke
public hostility as overtook the Star Chamber. A
vague and wandering jurisdiction with uncertain
frontiers, a sensitive and suspect power to punish
vested in the prosecutor, a law which makes it a
crime to public regardless of truth and public
good and permits a process of brevi manu
conviction, may unwittingly trench upon civil
liberties and so the special jurisdiction and
jurisprudence bearing on contempt power must
be delineated with deliberation and operated with
serious circumspection by the higher judicial
echelons. So it is that as the palladium of our
freedoms, the Supreme Court and the High
Courts, must vigilantly protect free speech even
against judicial umbrage - a delicate but sacred
duty whose discharge demands tolerance and
detachment of a high order."
According to him the considerations, as noticed in the
judgment, led to the enactment of the Contempt of Courts
Act, 1971 which makes some restrictive departures from the
traditional law and implies some wholesome principles
which serve as unspoken guidelines in this branch of law.
Section 2(c) emphasizes to the interference with the courts
of justice or obstruction of the administration of justice or
sacandalising or lowering the authority of the court - not the
judge. According to him, "The unique power to punish for
contempt of itself inheres in a court qua court, in its
essential role of dispenser of public justice. After referring
to host of judicial pronouncements, Krishna Iyer, J.,
concluded:
"We may now sum up. Judges and Courts have
diverse duties. But functionally, historically and
jurisprudentially, the value which is dear to the
community and the function which deserves to be
cordoned off from public molestation, is judicial.
Vicious criticism of personal and administrative
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acts of Judges may indirectly mar their image and
weaken the confidence of the public in the
judiciary but the counter-vailing good, not merely
of free speech but also of greater faith generated
by exposure to the actinic light of bona fide, even
if marginally over-zealous, criticism cannot be
overlooked. Justice is so cloistered virtue."
The Court in that case did not spare even a judicial officer
and convicted him of the offence by awarding the
punishment of paying a fine of Rs.1000/- or in default suffer
imprisonment for three months.
In In Re: S.Mulgaokar [1978 (3) SCC 339] Beg, CJ
observed that the judiciary is not immune from criticism but
when that criticism is based on obvious distortion or gross
mis-statement and made in a manner which is designed to
lower the respect of the judiciary and destroy public
confidence in it, it cannot be ignored. He further declared"
"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."
In that case when the matter was taken up in the court, the
contempt proceedings were dropped without calling upon
the counsel appearing for the respondent in response to the
notice. The action had been initiated on some news items
published in the Indian Express which was termed to be
milder publication. The erring sentence in the publication
was , "So adverse has been the criticism that the Supreme
Court Judges, some of whom had prepared the draft code,
have disowned it". It was found that the judges of court
were not even aware of the contents of the letter before it
was sent by the Chief Justice of India to the 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 was pointed out to the Editor
of the Indian Express in a letter sent by the Registrar of this
Court. In reply, the Registrar received a letter from the
Editor showing that the contents of the letter, which were
confidential, were known to the Editor. Instead of
publishing any correction of the mis-statement about the
conduct of Judges 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. It was pointed out that the writer of an article of a
responsible newspaper on legal matters is expected to know
that there is no constitutional safeguard or provision relating
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. The article proceeded
on the assumption that there was already a formulated code
of ethics sent to the Chief Justice which in fact was not
correct. The counsel appearing for the alleged contemner to
whom the notice was issued tried to convince the court that
there was no intention on the part of the writer of the article
or the Editor to injure the dignity or position of the court but
the intention was only to direct public attention to matters of
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extreme importance to the nation. The Chief Justice made
his statement clear and removed the mis-apprehensions, if
there were really and in discretion dropped the proceedings.
Nowhere in the judgment the court opined that publication
of offending material against the court did not amount to
scandalising the court. Krishna Iyer, J. while concurring
observed:
"The contempt power, though jurisdictionally
large, is discretionary in its unsheathed exercise.
Every commission of contempt need 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 beningnantly guide that
power. Justice if not hubris; power is not
petulance and prudence is not pusillanimity,
especially when Judges are themselves
prospectors 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 the defendants. Such are the
dynamics of power in this 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 fair play. Bodyline bowling,
perhaps, is not cricket. So my reason do not
reflect on the merits of the charge."
He further observed that contempt power is a wise economy
to 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 should harmonise the
constitutional values of free criticism 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
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supremacy of the law over pugnacious, vicious, unrepentant
and malignant contemners, be they the powerful press,
gang-up of vested interests, veteran columnists of olympian
establishmentarians. After referring to certain principles to
be kept in mind while dealing with the contempt
proceedings and referring to host of judgments of the
foreign and this Court, he concluded:
"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 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 Frankfurther 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 darkness 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 case [314 US 263 et al] but because the
course of justice may be distorted by hostile
attribution."
In Dr.D.C. Saxena v. Hon’ble the Chief Justice of India
[1996 (5) SCC 216] this Court held that if maintenance of
democracy is the foundation of free speech, society equally
is entitled to regulate freedom of speech or expression by
democratic action. Nobody has a right to denigrate others
right of person and reputation. Bonafide criticism of any
system or institution including the judiciary cannot be
objected to as healthy and constructive criticism are tools to
augment forensic tools for improving its function.
Relying upon some judgments of foreign courts and
the cherished wishes expressed or observations made by the
Judges of this country it cannot be held as law that in view
of the constitutional protection of freedom of speech and
expression no-one can be proceeded with for the contempt
of court on the allegation of scandalising or intending to
scandalise the authority of any Court. The Act is for more
comprehensive legislation which lays down the law in
respect of several matters which hitherto had been the
subject of judicial exposition. The legislature appears to
have kept in mind to bring the law on the subject into line
with modern trends of thinking in other countries without
ignoring the ground realities and prevalent socio-economic
system in India, the vast majority of whose people are poor,
ignorant, uneducated, easily liable to be misled, but who
acknowledly have the tremendous faith in the Dispensers of
Justice. The Act, which was enacted in the year 1971, much
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after the adoption of the Constitution by the People of India,
defined criminal contempt under Section 2(c) to mean:
"’Criminal contempt’ means the publication
(whether by words, spoken or written, or by
signs, or by visible representation, or otherwise)
of any matter or the doing of any other act
whatsoever which --
i) scandalises or tends to scandalise, or lowers
or tends to lower the authority of, any court,
or
ii) prejudices, or interferes or tends to interfere
with, the due course of any judicial
proceeding; or
iii) interferes or tends to interfere with, or
obstructs or tends to obstruct, the
administration of justice in any other
manner."
This Court has occasion to deal with the constitutional
validity of the Act and came to the conclusion that the same
was intra vires. If the constitutional validity of criminal
contempt withstood the test on the touchstone of
constitutionality in the light of the fundamental rights, it is
too late to argue at this stage that no contempt proceeding
can be initiated against a person on the ground of
scandalising the authority of the court.
Dealing with the meaning of the word "scandalising",
this Court in D.C. Saxena’s case (supra) held that it is an
expression of scurrilous attack on the majesty of justice
which is calculated to undermine the authority of the courts
and public confidence in the administration of justice. The
malicious or slanderous publication inculcates in the mind
of the people a general disaffection and dissatisfaction on
the judicial determination and indisposes in their mind to
obey them. If the people’s allegiance to the law is so
fundamentally shaken it is the most vital and most
dangerous obstruction of justice calling for urgent action.
Dealing with Section 2(c) of the Act and defining the limits
of scandalising the court, it was held:
"Scandalising the court, therefore, would mean
hostile criticism of judges as judges or judiciary.
Any personal attack upon a judge in connection
with the office he holds is dealt with under law of
libel or slander. Yet defamatory publication
concerning the judge as a judge brings the court
or judges into contempt, a serious impediment to
justice and an inroad on the majesty of justice.
Any caricature of a judge calculated to lower the
dignity of the court would destroy, undermine or
tend to undermine public confidence in the
administration of justice or the majesty of justice.
It would, therefore, be scandalising the judge as a
judge, in other words, imputing partiality,
corruption, bias, improper motives to a judge is
scandalisation of the court and would be
contempt of the court. Even imputation of lack
of impartiality or fairness to a judge in the
discharge of his official duties amounts to
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contempt. The gravamen of the offence is that of
lowering his dignity or authority or an affront to
the majesty of justice. When the contemnor
challenges the authority of the court, he interferes
with the performance of duties of judge’s office
or judicial process or administration of justice or
generation or production of tendency bringing the
judge or judiciary into contempt. Section 2(c) of
the Act, therefore, defines criminal contempt in
wider articulation that any 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 scandalises or tends to scandalise, or
lowers or tends to lower the authority or any
court; or prejudices, or interfers or tends to
interfere with, or obstructs or tends to obstruct,
the administration of justice in any other manner,
is a criminal contempt. Therefore, a tendency to
scandalise the court or tendency to lower the
authority of the court or tendency to interfere
with or tendency to obstruct the administration of
justice in any manner or tendency to challenge
the authority or majesty of justice, would be a
criminal contempt. The offending act apart, any
tendency if it may lead to or tends to lower the
authority of the court is a criminal contempt.
Any conduct of the contemnor which has the
tendency or produces a tendency to bring the
judge or court into contempt or tends to lower the
authority of the court would also be contempt of
the court."
In E.M. Sankaran Namboodripad v. T.Narayanan
Nambiar [1970 (2) SCC 325] it was contended on behalf of
the contemers that law of contempt must be read without
encroaching upon the guaranteed freedom of speech and
expression in Article 19 of the Constitution and the
intention of the contemner in making the statement should
be examined in the light of his political views as he was at
liberty to put them before the people. It was further argued
as that the species of contempt called ’scandalising the court’
had fallen in desuetude and was no longer enforced in
England, the freedom of speech and expression gave
immunity to the appellant-contemner to publicise the
political philosophy in which he believed. Rejecting such a
plea, the Court held:
"The appellant has contended before us that the
law of contempt should be so applied that the
freedom of speech and expression are not
whittled down. This is true. The spirit
underlying Article 19(1)(a) must have due play
but we cannot overlook the provisions of the
second clause of the article. While it is intended
that there should be freedom of speech and
expression, it is also intended that in the exercise
of the right, contempt of court shall not be
committed. The words of the second clause are:
’Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law or
prevent the State from making any law, in so
far as such law imposes reasonable
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restriction on the exercise of the right
conferred by the sub-clause... in relation to
contempt of court, defamation or incitement
to an offence.’
These provisions are to be read with Articles 129
and 215 which specially confer on this Court and
the High Courts the power to punish for contempt
of themselves. Article 19(1)(a) guarantees
complete freedom of speech and expression but it
also makes an exception in respect of contempt of
court. The guaranteed right on which the
functioning of our democracy rests, is intended to
give protection to expression of free opinions to
change political and social conditions and to
advance human knowledge. While the right is
essential to a free society, the Constitution has
itself imposed restrictions, in relation to contempt
of court and it cannot therefore be said that the
right abolishes the law of contempt or that attacks
upon judges and courts will be condoned."
In Sheela Barse v. Union of India & Ors. [1988 (4)
SCC 226] the Court acknowledged that the broader right of
a citizen to criticise the systemic inadequacies in the larger
public interest. It is the privileged right of the Indian citizen
to believe what he considers to be true and to speak out his
mind, though not, perhaps, always with the best of tastes;
and speak perhaps, with greater courage than care for
exactitude. Judiciary is not exempt from such criticism.
Judicial institutions are, and should be made, of stronger
stuff intended to endure the thrive even in such hardy
climate. But we find no justification to the resort to this
freedom and privilege to criticise the proceedings during
their pendency by persons who are parties and participants
therein.
The law of contempt itself envisages various
exceptions as incorporated in Sections 3, 4, 5, 6 and 7.
Besides the aforesaid defences envisaged under the Act, the
court can, in appropriate cases, consider any other defence
put forth by the respondent which is not incompatible with
the dignity of the court and the law of contempt. Taking a
cue from the language of Section 8 of the Act, learned
Senior Counsel appearing for the respondent submitted that
a reply submitted to a contempt notice can, in no case,
amount to contempt of court in the light of second exception
to Section 499 of the Indian Penal Code. Such a broad and
general proposition is contrary to the law of contempt as
adjudicated by the courts in the country from time to time
and the limits prescribed by the Act and the judicial
pronouncements which are well within the knowledge of all
reasonable citizens. It has to be always kept in mind that
the law of defamation under the Penal Code cannot be
equated with the law of contempt of court in general terms.
The Privy Council in Surender Nath v. Chief Justice and
Judges of the High Court [10 Cal. 109] observed that
"although contempt may include defamation, yet an offence
of contempt is something more than mere defamation and is
of a different character". Approving the aforesaid view, this
Court in Bathina Ramakrishna Reddy v. State of Madras
[AIR 1952 SC 149] held:
"When the act of defaming a Judge is calculated
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to obstruct or interfere with the due course of
justice or proper administration of law, it would
certainly amount to contempt. The offence of
contempt is really a wrong done to the public by
weakening the authority and influence of Courts
of law which exist for their good. As was said by
Willmot C.J., Wilmot’s Opinion p.256; Rex v.
Davies 30 at p.40-41.
"attacks upon the judges excite in the minds
of the people a general dissatisfaction with
all judicial determinations.... and whenever
man’s allegiance to the laws is so
fundamentally shaken it is the most fatal and
dangerous obstruction of justice and in my
opinion claim out for a more rapid and
immediate redress than any judges as private
individuals but because they are the
channels by which the King’s justice is
conveyed to the people."
What is made punishable in the Indian Penal
Code is the offence of defamation as defamation
and not as contempt of court. If the defamation
of a subordinate court amounts to contempt of
Court proceedings can certainly be taken under
S.2, Contempt of Courts Act, quite apart from the
fact that other remedy may be open to the
aggrieved officer under S.499, Penal Code. But a
libel attacking the integrity of a Judge may not in
the circumstances of a particular case amount to a
contempt at all, although it may be the subject
matter of libel proceeding. This is clear from the
observation of the Judicial Committee in the case
of the Matter of a Special Reference from the
Bahama Islands, 1989 A.C. 188."
Even a person claiming the benefit of second exception to
Section 499 of the Indian Penal Code, is required to show
that the opinion expressed by him was in good faith which
related to the conduct of a public servant in the discharge of
his public functions or respecting his character so far as his
character appears in that conduct. Under the law of
contempt statements made in pleadings, petitions and
affidavits of the parties, in a number of cases, have been
held defamatory statements amounting to offences under the
section unless it is shown that they fall within any of the
exceptions. The statements made in an affidavit filed in the
court was held to amount to a criminal contempt by this
Court in In Re: Sanjiv Datta, Deputy Secretary’s, Ministry
of Information & Broadcasting, New Delhi & Ors. [1995 (3)
SCC 619] The benefit of the exception even under the law
of defamation, much less in contempt proceedings may not
be available if the insinuations are made against an
institution of the State and not restricted to the person as an
individual or a collection of persons.
Relying upon the observations made by this Court in
P.N. Duda vs. P.Shiv Shanker & Ors. [1988 (3) SCC 167 it
has been argued on behalf of the respondents that if despite
severe criticism and wild allegations made by P. Shiv
Shanker against the institution of judiciary, no action was
taken, the present proceedings also required to be dropped.
In that case P. Shiv Shanker who, at the relevant time, was
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the Minister of Law, Justice and Company Affairs,
delivered a speech before a meeting of the Bar Council at
Hyderabad in which he made derogatory statement against
the Supreme Court and its dignity attributing partiality
towards economically affluent sections of the people by
using language which is extremely intemperate, undignified
and unbecoming of a person of his stature and position. In
his speech the Minister had, inter alia, observed:
"The Supreme Court composed of the element
from the elite class had their unconcealed
sympathy for the haves i.e. the Zamindars. As a
result, they interpreted the word ’compensation’ in
Article 31 contrary to the spirit and the
intendment of the Constitution and ruled the
compensation must represent the price which a
willing seller is prepared to accept from a willing
buyer. The entire programme of Zamindari
abolition suffered a setback. The Constitution
had to be amended by the 1st, 14th and 17th
Amendments to remove the oligarchic approach
of the Supreme Court with little or no help.
Ultimately, this rigid reactionary and traditional
outlook of property, led to the abolition of
property as a fundamental right.
Holmes Alexander in his column entitled ’9 Men
of Terror Squad’ made a frontal attack on the
functions of the U.S. Supreme Court. It makes an
interesting reading:
Now can you tell what that black-robbed
elite are going to do next. Spring more
criminals, abolish more protections. Throw
down more ultras. Rewrite more laws.
Chew more clauses out of the Constitution.
May be, as a former Vice-President once
said, the American people are too dumb to
understand, but I would bet that the
outcropping of evidence at the top in
testimony before the US Senate says
something about the swelling concern
among the people themselves.
Should we not ask how true Holmes Alexander
was in the Indian context.
Twenty years of valuable time was lost in this
confrontation presented by the judiciary in
introducing and implementing basic agrarian
reforms for removal of poverty what is the
ultimate result. Meanwhile even the political will
seems to have given way and the resultant effect
is the improper and ineffective implementation of
the land reform laws by the executive and the
judiciary supplementing and complementing each
other.
The Maharajas and the Rajas were anachronistic
in independent India. They had to be removed
and yet the conservative element in the ruling
party gave them privy purses. When the privy
purposes were abolished, the Supreme Court,
contrary to the whole national upsurge, held in
favour of the Maharajas.
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Mahadhipatis like Keshavananda and Zamindars
like Golaknath evoked a sympathetic cord
nowhere in the whole country except the
Supreme Court of India. And the bank magnates,
the representatives of the elitist culture of this
country, ably supported by industrialists, the
beneficiaries of independence, got higher
compensation by the intervention of the Supreme
Court in Cooper case [R.C. Cooper v. Union of
India, (1970) 1 SCC 248]. Anti-social elements
i.e. FERA violations, bride burners and a whole
horde of reactionaries have formed their haven in
the Supreme Court."
After examining the entire speech, this Court found
that the Minister had examined the class composition of the
Supreme Court. His view was that the class composition of
any instrument indicates its pre-disposition and its
prejudices. After referring to various judgments of this
Court and the foreign courts, the Court held:
"As we have mentioned before the speech of the
Minister has to be read in its entirety. In the
speech as we have set out hereinbefore it appears
that Shri P. Shiv Shanker was making a study of
the attitude of this Court. In the portion set out
hereinbefore, it was stated that the Supreme
Court was composed of the element from the elite
class. Whether it is factually correct or not in
another matter. In our public life, where the
champions of the down-trodden and the
politicians are mostly from the so-called elite
class, if the class composition is analysed, it may
reveal interesting factors as to whether elite class
is dominant as the champions of the oppressed or
of social legislations and the same is the position
in the judiciary. But the Minister went on to say
that because the judges had their ’unconcealed
sympathy for the haves’ they interpreted the
expression ’compensation’ in the manner they did.
The expression ’unconcealed’ is unfortunate. But
this is also an expression of opinion about an
institutional pattern. Then the Minister went on
to say that because of this the word
’compensation’ in Article 31 was interpreted
contrary to the spirit and the intendment of the
Constitution. The Constitution therefore had to
be amended by the 1st, 14th and 17th Amendments
to remove this ’oligarchic’ approach of the
Supreme Court with little or no help. The
interaction of the decisions of this Court and the
constitutional amendments have been viewed by
the Minister in his speech, but that is nothing
new. This by itself does not affect the
administration of justice. On the other hand, such
a study perhaps is important for the
understanding of the evolution of the
constitutional development. The next portion to
which reference may be made where the speaker
has referred to Holmes Alexander in his column
entitled ’9 Men of Terror Squad’ making a frontal
attack on the functions of the U.S. Supreme
Court. There was a comparison after making the
quotation as we have set out hereinbefore, : "One
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should ask the question how true Holmes
Alexander was in the Indian context". This is
also a poser on the performance of the Supreme
Court. According to the speaker twenty years of
valuable time was lost in this confrontation
presented by the judiciary in introducing and
implementing basic agrarian reforms for removal
of poverty what is the ultimate result. The nation
did not exhibit the political will to implement the
land reforms laws. The removal of the Maharajas
and Rajas and privy purses were criticised
because of the view taken by this Court which
according to the speaker was contrary to the
whole national upsurge. This is a study in the
historical perspective. Then he made a reference
to the Keshavanand Bharti v. State of Kerala
[1973(4) SCC 225] and I.C. Golak Nath v. State
of Punjab [AIR 1967 SC 1643] cases and
observed that a representative of the elitist culture
of the country, ably supported by industrialists
and beneficiaries of independence, got higher
compensation by the intervention of the Supreme
Court in Cooper Case. This is also a criticism of
the judgment in R.C. Cooper Case. Whether that
is right or wrong is another matter, but criticism
of judgments is permissible in a free society.
There is, however, one paragraph which appears
to us to be rather intemperate and that is to the
following effect:
Anti-social elements i.e. FERA violators,
bride burners and a whole horde of
reactionaries have found their haven in the
Supreme Court.
This, of course, if true, is a criticism of the laws.
The Supreme Court as it is bound to do has
implemented the laws and in implementing the
laws, it is a tribute to the Supreme Court that it
has not discriminated between persons and
persons. Criminals are entitled to be judged in
accordance with law. If anti-social elements and
criminals have benefited by decisions of the
Supreme Court, the fault rests with the laws and
the loopholes in the legislation. The courts are
not deterred by such criticisms.
Bearing in mind the trend in the law of contempt
as noticed before, as well as some of the
decisions noticed by Krishna Iyer, J. in S.
Mulgaokar case, the speech of the Minister read
in its proper perspective, did not bring the
administration of justice into disrepute or impair
administration of justice. In some portions of the
speech the language used could have been
avoided by the Minister having the background
of being a former judge of the High Court. The
Minister perhaps could have achieved his purpose
by making his language mild but his facts deadly.
With these observations, it must be held that
there was no imminent danger of interference
with the administration of justice, not of bringing
administration into disrepute. In that view it
must be held that the Minister was not guilty of
contempt of this Court."
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It may be noticed that the criticism of the judicial
system was made by a person who himself had been the
Judge of the High Court and was the Minister at the relevant
time. He had made studies about the system and expressed
his opinion which, under the circumstances, was held to be
not defamatory despite the fact that the court found that in
some portion of the speech the language used could have
been avoided by the Minister having the background of
being the former Judge of the High Court. His speech,
under the circumstances, was held to be not amounting to
imminent danger of interference with the administration of
justice nor of bringing the administration into disrepute.
As already held, fair criticism of the conduct of a
judge, the institution of the judiciary and its functioning
may not amount to contempt if it is made in good faith and
in public interest. To ascertain the good faith and the public
interest, the courts have to see all the surrounding
circumstances including the person responsible for
comments, his knowledge in the field regarding which the
comments are made and the intended purpose sought to be
achieved. All citizens cannot be permitted to comment
upon the conduct of the courts in the name of fair criticism
which, if not checked, would destroy the institution itself.
Litigant losing in the Court would be the first to impute
motives to the judges and the institution in the name of fair
criticism which cannot be allowed for preserving the public
faith in an important pillar of democratic set up, i.e.,
judiciary. In Dr.D.C. Saxena’s case (supra) this Court dealt
with the case of P.Shiv Shanker by observing:
"In P.N. Duda v. P. Shiv Shanker [1988 (3) SCC
167] this Court had held that administration of
justice and judges are open to public criticism
and public scrutiny. Judges have their
accountability to the society and their
accountability must be judged by the conscience
and oath to their office, i.e, to defend and uphold
the Constitution and the laws without fear and
favour. Thus the judges must do, in the light
given to them to determine, what is right. Any
criticism about the judicial system or the judges
which hampers the administration of justice or
which erodes the faith in the objective approach
of the judges and brings administration of justice
to ridicule must be prevented. The contempt of
court proceedings arise out of that attempt.
Judgments can be criticised. Motives to the
judges need not be attributed. It brings the
administration of justice into disrepute. Faith in
the administration of justice is one of the pillars
on which democratic institution functions and
sustains. In the free market-place of ideas
criticism about the judicial system or judges
should be welcome so long as such criticism does
not impair or hamper the administration of
justice. This is how the courts should exercise
the powers vested in them and judges to punish a
person for an alleged contempt by taking notice
of the contempt suo motu or at the behest of the
litigant or a lawyer. In that case the speech of the
Law Minister in a Seminar organised by the Bar
Council and the offending portion therein were
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held not contemptuous and punishable under the
Act. In a democracy judges and courts alike are,
therefore, subject to criticism and if reasonable
argument or criticism in respectful language and
tempered with moderation is offered against any
judicial act as contrary to law or public good, no
court would treat criticism as a contempt of
court."
In the instant case the respondent has not claimed to be
possessing any special knowledge of law and the working of
the institution of judiciary. She has only claimed to be a
writer of repute. She has submitted that "as an ordinary
citizen I cannot and could not have expected to make a
distinction between the Registry and the Court". It is also
not denied that the respondent was directly or indirectly
associated with the Narmada Bachao Andolan and was,
therefore, interested in the result of the litigation. She has
not claimed to have made any study regarding the working
of this Court or judiciary in the country and claims to have
made the offending imputations in her proclaimed right of
freedom of speech and expression as a writer. The benefit
to which Mr.P.Shiv Shanker, under the circumstances, was
held entitled is, therefore, not available to the respondent in
the present proceedings. Her case is in no way even equal
to the case of E.M.S. Namboodaripad (supra). In that case
the contemner, believing in the philosophy he was
pronpounding had made certain observations regarding the
working of the courts under the prevalent system which, as
already noticed, was found to be contemptuous.
The Constitution of India has guaranteed freedom of
speech and expression to every citizen as a fundamental
right. While guaranteeing such freedom, it has also
provided under Article 129 that the Supreme Court shall be
a Court of Record and shall have all the powers of such a
Court including the power to punish for contempt of itself.
Similar power has been conferred on the High Courts of the
States under Article 215. Under the Constitution, there is
no separate guarantee of the freedom of the press and it is
the same freedom of expression, which is conferred on all
citizens under Article 19(1). Any expression of opinion
would, therefore, be not immune from the liability for
exceeding the limits, either under the law of defamation or
contempt of Court or the other constitutional limitations
under Article 19(2). If a citizen, therefore, in the garb of
exercising right of free expression under Article 19(1), tries
to scandalise the court or undermines the dignity of the
court, then the court would be entitled to exercise power
under Article 129 or Article 215, as the case may be. In
relation to a pending proceeding before the Court, while
showing cause to the notices issued, when it is stated the
court displays a disturbing willingness to issue notice on an
absurd despicable, entirely unsubstantiated petition, it
amounts to a destructive attack on the reputation and the
credibility of the institution and it undermines the public
confidence in the judiciary as a whole and by no stretch of
imagination, can be held to be a fair criticism of the Court’s
proceeding. When a scurrilous attack is made in relation to
a pending proceeding and the noticee states that the issuance
of notice to show cause was intended to silence criticism
and muzzle dissent, to harass and intimidate those who
disagree with it, is a direct attack on the institution itself,
rather than the conduct of an individual Judge. The
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meaning of the expressions used cannot come within the
extended concept of fair criticism or expression of opinion,
particularly to the case of the contemner in the present case,
who on her own right is an acclaimed writer in English. At
one point of time, we had seriously considered the speech of
Lord Atkin, where the learned Judge has stated:
"The path of criticism is public way: the
wrongheaded are permitted to err therein...
Justice is not a cloistered virtue: she must be
allowed to suffer the scrutiny and respectful, even
though outspoken, comments of ordinary men."
[Andre Paul vs. Attorney General (1936), AC
322].
and to find out whether there can be a balancing between
the two public interests, the freedom of expression and the
dignity of the court. We also took note of observations of
Bharucha, J. in the earlier contempt case against the present
contemner, who after recording his disapproval of the
statement, observed that the Court’s shoulders are broad
enough to shrug off the comments. But in view of the
utterances made by the contemnor in her show causes filed
and not a word of remorse, till the conclusion of the hearing,
it is difficult for us either to shrug off or to hold the
accusations made as comments of outspoken ordinary man
and permit the wrongheaded to err therein, as observed by
Lord Atkin.
We are not impressed with any of the arguments of the
learned counsel for the respondent which could persuade us
to drop the proceedings and are of the opinion that it has to
be found on facts as to whether the offending portion of the
affidavit of the respondent amounts to scandalising the court
and thus a criminal contempt within the meaning of Section
2(c) of the Act.
In the offending portion of her affidavit, the respondent
has accused the court of proceeding with absurd, despicable
and entirely unsubstantiated petition which, according to
her, amounted to the court displaying a disturbing
willingness to issue notice. She has further attributed
motives to the court of silencing criticism and muzzling
dissent by harassing and intimidating those who disagree
with it. Her contempt for the court is evident from the
assertion "by entertaining a petition based on an FIR that
even a local police station does not see fit to act upon, the
Supreme Court is doing its own reputation and credibility
considerable harm". In the affidavit filed in these
proceedings, the respondent has reiterated what she has
stated in her earlier affidavit and has not shown any
repentance. She wanted to become a champion to the cause
of the writers by asserting that persons like her can allege
anything they desire and accuse any person or institution
without any circumspection, limitation or restraint. Such an
attitude shows her persistent and consistent attempt to
malign the institution of the judiciary found to be most
important pillar in the Indian democratic set up. This is no
defence to say that as no actual damage has been done to the
judiciary, the proceedings be dropped. The well-known
proposition of law is that it punishes the archer as soon as
the arrow is shot no matter if it misses to hit the target. The
respondent is proved to have shot the arrow, intended to
damage the institution of the judiciary and thereby weaken
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the faith of the public in general and if such an attempt is
not prevented, disastrous consequences are likely to follow
resulting in the destruction of rule of law, the expected norm
of any civilised society.
On the basis of the record, the position of law our
findings on various pleas raised and the conduct of the
respondent, we have no doubt in our mind that the
respondent has committed the criminal contempt of this
Court by scandalising its authority with malafide intentions.
The respondent is, therefore, held guilty for the contempt of
court punishable under Section 12 of the Contempt of
Courts Act.
As the respondent has not shown any repentance or
regret or remorse, no lenient view should be taken in the
matter. However, showing the magnanimity of law by
keeping in mind that the respondent is a woman, and hoping
that better sense and wisdom shall dawn upon the
respondent in the future to serve the cause of art and
literature by her creative skill and imagination, we feel that
the ends of justice would be met if she is sentenced to
symbolic imprisonment besides paying a fine of Rs.2000/-.
While convicting the respondent for the contempt of
the Court, we sentence her to simple imprisonment for one
day and to pay a fine of Rs.2,000/-. In case of default in the
payment of fine, the respondent shall undergo simple
imprisonment for three months.
.......................J.
(G.B. Pattanaik)
.......................J.
(R.P. Sethi)
March 6, 2002