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TMI Blog1971 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasions and was ultimately heard by a Bench consisting of Shah, J., as he then was, and Hegde, J., on October 15, 1969 and October 16, 1969 (and, according to respondent No. 1, also on October, 17, 1969). It appears that the appeal was first heard on February 22, 1969 by Hidayatullah, C. J., and another Hon'ble Judge, but later on it was heard, as already stated, by Shah and Hegde, JJ, and the judgment was delivered on October 28, 1969 by Hegde, J. It is further stated in the petition that respondent No. 1 "with the deliberate design of bringing into disrepute and scandalizing this Hon'ble Court, wrote and got printed and published, by and through Respondent No. 2, a pamphlet which though ostensibly meant for the convenient use of members of Parliament was actually widely circulated and was made available for sale at M/s Kanak Book Depot, P. 0. Ramsanehi Ghat, Distt. Barabanki, U. P., Respondent No. 3." It is also stated that "the said pamphlet was, as the petitioners believe, sold or offered for sale to the public by Respondent No. 3." It is further stated in the petition that the pamphlet "disparages and brings into contempt the authority of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations that the counsel Shri S. P. Sinha had to give up the arguments in disgust." "Shri O. P. Gupta went back to Allahabad greatly perturbed and upset at such open dishonesty of a Senior Judge of the highest Court of Justice in the land". "Whereas in the Lok Sabha every word that is spoken is written down, in the Supreme Court none of the arguments by the parties or observations by the Judge are noted. This is the reason why Shri J. C. Shah makes such illegal and dishonest observations orally in the Court in the belief that these observations will not find place on the record and nobody will be able to patch him." "Note : Although both the Judges who delivered this judgment are responsible for it, the responsibility of Shri J. C. Shah is much more serious as he was the Senior Judge and had been specifically charged with bias. The other Judge merely toed his line. His cleverness in getting the judgment delivered by his junior colleague will deceive no one." "It is not as if the judge has missed those contentions through carelessness. He has done so deliberately and dishonestly because the High Court had emphasized this contention very str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, before the Respondent No. 1 actually left the Bar Association room, he sold a copy of the said Pamphlet to Shri 0. N. Mahindroo, Advocate." In Para 10 it is submitted that "from the above mentioned facts it is clear that the Respondant No. 1 has personally distributed and published the aforesaid pamphlet." It is further stated in Para 1 1 that the pamphlet as a whole is ex facia contempt of Court and has the tendency and object of bringing into disrepute the authority of the court and to weaken the confidence of the public in its justice and fair play. it is prayed in the petition that this Court be pleased to issue notice to the Respondents to show cause why they should not be ,committed for contempt of Court and upon hearing the Respondents (a) order attachment and committal, (b) impose such other penalty as may be deemed fit, and (c) pass such order or orders as this Court may think proper. Shri S. N. Prasad,petitioner No. 3, has filed an affidavit with the petition. Shri B. P. Singh, Advocate, Supreme Court, has also filed an affidavit. In this affidavit it is stated, "Sometimes after the reopening of the Court after the summer vacations in July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, the Court directed issue of notice of this petition to the respondents returnable 10 days hence, peremptorily. The office reported on December 3, 1970, that "neither the Registered Cover nor A.D. Card in respect of notice issued directly to Respondent No. 1, viz. Shri 0. P. Gupta has been received back so far. Similarly no report in respect of Respondent No. 1 has been received from the District Judge, Allahabad." On December 4, 1970, this Court directed that another notice be sent to respondents Nos. 1 and 3 returnable on December 9, 1970. It was further directed that notice be sent to respondent No. 1 at his Delhi address also, returnable on December 9, 1970. The notices were also directed to be served through the District Magistrates. It may be mentioned that respondent No. 2 was present in Court and had filed an affidavit to which we shall later refer. The Sub-Divisional Magistrate, Delhi, returned the notice in respect of 0. P. Gupta, unserved, with the following report : "The wife of the addressee, viz., Mrs. Mithles Kumari, who was present at the address given in the notice, has stated that her husband had gone out to Poona. She had no knowledge about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-1-1971". On December 15, 1970, referring to the letter of the respondent, mentioned above, this Court observed that "the address given on the letter is c/o the Station Master, Jagannath Puri, Orissa. This clearly shows that he does not want to disclose his wherabouts so that proper processes may be issued to him...... In view of this letter, we are further fortified in our view that he is avoiding service and concealing himself. Warrants will be executed as ordered by us." The office reported again on January 4, 1971 that the autho- rities had informed that despite their best efforts they had not been able to arrest 0. P. Gupta nor his whereabouts could be found. Respondent No. 1 wrote another letter on December 24, 1970, objecting to the issue of non-bailable warrants. He stated: "As written in my previous letter I had planned to reach Delhi by about the 20th instant and to present myself in Court when it reopens on 4th January, 1971...... But the shocking news of a non-bailable warrant has upset all my plans." He further stated that he had thus no alternative but to go back; he wanted to reach the Court as a free man and before appearing in Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit he replied that it was not contempt because it was the law that there could not be any contempt in respect of a Judge who has retired. It seems to us clear that in order to hurl fresh abuses on Mr. Justice Shah, he deliberately avoided service of the notice so that he would not have to file his affidavit before the date of retirement of Mr. Justice Shah. We are also surprised at the inability of the Executive to have O. P. Gupta traced and warrants served. on him. Article 144 of the Constitution provided that ".%II authorities, civil and judicial, in the territory of India, shall act in aid of the Supreme Court." We have noticed with regret that in this case the Executive has not shown due diligence in complying with this constitutional provision. Respondent No. 1 filed another application on February 18, 1971, praying that the arguments on maintainability of the petition be heard first and that question decided. It was further requested that the petitioners be asked to produce all their evidence because he would like to cross-examine them. It was further stated that after the petitioners had closed their evidence, he "will summon documentary and oral evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In para 8.4 he stated that "as to facts I must frankly admit that the grievous wrong that Shri J. C. Shah had done to me had created such deep anguish, frustration and desperation in me that had God almightily not intervened Shri J. C. Shah would not have seen the end of 1969." we wondered what exactly he meant by this passage, but he admitted that it meant that he had at one time decided to murder Mr. Justice Shah. He explained that it was some Member of Parliament who saved him from this act by suggesting that he might instead try to convince the Members of Parliament of the genuineness of his case and prepare them to file an impeachment motion. In para 8.5 it was stated that he had a right to approach and convince the Hon'ble Members and he exercised that right. Nobody has said before us that he had no right to approach and convince the Hon'ble Members. In para 8.6 and 8.7 he mentioned about the filing of the im- peachment motion in the Lok Sabha on May 15, 1970 and its rejection by the Hon'ble Speaker. In para 9 he said that "a large number of Hon'ble Members of Parliament made that draft, in the making of which I too took an active part and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hegde's name was not mentioned in the Impeachment Motion, although he had actually delivered the judgment. In para 10.1 he submitted that "the very same judgment can lead to the Impeachment of one Judge who signs it knowing that its conclusions are wrong while leaving out completely the other Judge who signs it genuinely believing that the conclusions are right." In para 10.2 he referred to the petition dated 27-10-69 under Art. 32 of the Constitution to demonstrate his great regard and respect for Mr. Justice Hegde. In para 10.3 he stated thus : "It is entirely wrong to say that the Impeachment Motion "disparages and brings into contempt the authority of this Hon'ble Court and tends to weaken the confidence of the people in it and in any event has the tendency and object of so doing." The Motion was solely aimed against a "decayed fish" and its laudable object was to save the "entire tank" from contamination, as explained above in para. 9.1. Therefore, the object of the motion clearly was to save the prestige and honour of the Hon'ble Court and to enhance public confidence in it and not the reverse." In para 10.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the point regarding the validity of the existing law relating to contempt of court. The first respondent has urged that the existing law relating to contempt of court by writings in respect of proceedings which have finished is repugnant to Art. 19(1)(a), read with Art. 19(2). He contends that the existing law imposes unreasonable restrictions on a citizen's fight to freedom of speech guaranteed under Art.(19)(1) (a). He urges that we should follow the law existing in the United States of America. Mr. C. K. Daphtary, on the other hand, contends, first, that Art. 19(1)(a) and Art. 19(2) do not apply to the law relating to contempt of this Court because of Art. 129 of the Constitution, which reads : "The Supreme Court shall be a Court of Record and shall have all the powers of such a court including the powers to punish for contempt of itself." Secondly, Mr. Daphtary urges that the existing law relating to. contempt of court is not a "law" covered by the definition of the word "law" in Art. 13(3)(a). Thirdly, Mr. Daphtary contends that the existing law only imposes reasonable restrictions within the meaning of Art. 19(2) of the Constitution. In P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. In Perspective Publications Ltd. v. State of Maharashtra ([1969] 2 S.C.R. 779) Grover, J., speaking on behalf of the Court, reviewed the entire case law and stated the result of the discussion of the cases on contempt as follows: "(1) It will not be right to say that committals for contempt 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 administra- tion 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmarised in the two cases places unreasonable restrictions on the freedom of speach. But the argument of the first respondent was that we have now a written constitution, like the United States of America, and if in the United States, in order to give effect to the liberty of speech and freedom of expression the common law has been departed from, we should also follow in their footsteps. But the American Constitution and the conditions in the United States are different from those in India,. In the American Constitution there is no provision like Art. 19(2) of our Constitution. The relevant part of the First Amendment to the U. S. Con- stitution is as follows "Congress shall make no law......... abridging the freedom of speech or of, the press." The difference between the First Amendment and Art. 19(1)(a) was noted by Douglas J, in Kingsley Corporation v. Regents of the University of New York(2) where he observed: "If we had a provision in our Constitution for "reasonable" regulation of the press such as India has included in hers there would be room for argument that censorship in the interest of morality would be permissible." (In a footnote he ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the Court. It would be foolish, as well as useless, for anyone to contend that the very highest courts do not make mistakes. ,Courts themselves prove this by overruling previous decisions." "If any considerable portion of a community is led to believe that, either because of gross ignorance of the law, or because of a worse reason, it cannot rely upon the courts to administer jusice to a person charged with crime, that portion of the community, upon some occasion is very likely to come to the conclusion, that it is better no to take any chances. on the courts failing to do their duty. Then may come mob violence with all its detestable features. To say that respondent meant no disrespect for this Court is contrary to the plain meaning of the language used, and the order directing that it be spread ,upon the minutes of the district court." The question whether the existing law of contempt is un- reasonable within Art. 19(2) of the Constitution has been the subject of decisions in some of the High Courts. They have all come to the conclusion that the restrictions imposed by this law are reasonable. S. K. Das, J., then a Judge of the Patna High Court, in Legal Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, so also may the journalist, and if an ordinary citizen may not transgress the law so must not the press. That the exercise of expression is subject to the reasonable restriction of the law of contempt, is borne out by cl. (2) of Art. 19 of the Constitution. It should be well to remember that the Judges by reason of their office are precluded from entering into any controversy in the columns of the public press, nor can enter the arena and do battle upon equal terms in newspapers, as can be done by ordinary citizens." Respondent No. 1 contends that the present law places un- reasonable restrictions because it serves no useful purpose, and even a scurrilous attack on a Judge does not affect the administration of justice. He further says that after a case has been decided, if a judgment is severely and even unfairly criticised, and assuming that this has an adverse effect on the administration of justice, it must be balanced against the harm which would ensue if such criticism is stopped. We are unable to agree with him that a scurrilous attack on a Judge in respect of a judgment or past conduct has no adverse effect on the due administration of justice. This sort of attack i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but to Mr. Justice Shah. He explains this by saying that it was Mr. Justice Shah who controlled the hearing and he would not even allow Mr. Justice Hegde to listen to his arguments. We are unable to believe this. According to Respondent No. 1, the words "dishonest judg- ment" and "dishonesty" have to be understood in a special sense. He says that these words were used in order to show the manner in which the appeal was heard and the manner in which Mr. Justice Shah made up his mind quickly and then refused to budge from that position. It is well-settled that we have to give the plain meaning to the words used in the pamphlet or the booklet. Giving the ordinary and plain meaning it appears to us that "dishonesty" means dishonesty, i.e. that he has ascribed to the Judge a conduct which would be most reprehensible. In other words he says that although Mr. Justice Shah was convinced that the appeal of the State of U. P. should be dismissed he cleverly asked Mr. Justice Hegde to deliver the judgment and allow the appeal, and that Mr. Justice Hegde wrote down what Mr. Justice Shah dictated or told him to write. We have already set out paras 10.5 and 10.8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole would leave on the mind of an ordinary reader the clear impression that injustice had been deliberately done on political grounds to some of the accused who were apparently innocent. In other words it attributes judicial dishonesty to the Judges. I am unable to accept the contention that such an article does not constitute a contempt of Court. We have to consider the natural and probable effect of the article and not only the avowed intention of the editor as indicated in his affidavit. I think that the publication of the article in question constitutes a contempt of Court." Mr. Justice Shah, Acting Chief Justice, further observed "I am slow to hold that any unfair criticism of Courts of Judges constitutes such an interference with the administration of justice as should be punished. I am wiling to act upon the view that the confidence of the public in Courts tests mainly upon the purity and correctness of their pronouncements and that such confidence is not lightly shaken by a mistake or unfair criticism of this kind. At the same time it is clear that the tendency of such criticism is to undermine the dignity of the Court and in the end to embarrass the administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt case as follows : "The Plaintiffs' counsel not only admitted but boldly asserted, and made it part of their argument, that the circular was libellous, and that they could justify the libel, and they referred to some of the evidence which apparently had been adduced for the purpose of sustaining justification. But the evidence and the argument founded on it are irrelevant on this motion." In Tusher Kanti Ghosh, Editor, In re (A.T.R. J 93 5 Cal. 419) Mukherji, J., at page 432, describing the characteristics of proceedings to punish breve menu contempt of Court observed that in such proceedings the contemnor is precluded from taking a plea or a defence." The first respondent has argued his case at great length but we are unable to hold that he did not commit contempt of court. Further, he did so deliberately. He admits that he took part in the drafting of the Impeachment Motion, and it seems to us that whoever is responsible for the final draft deliberately used words in order to bring the allegations within the word "misbehaviour" in art. 124(4). He said that by assisting in the drafting he did not commit any contempt of Court. That may or may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nothing, in fact was shown to us as to establish the publication of the pamphlet or the booklet as a publication "by or under the authority of either House of Parliament of any report, paper, votes or proceedings." Section 2 of the Parliamentary Proceedings (Protection of Publication) Act, 1956, defines "newspaper" thus : "In this Act, "newspaper" means any printed periodical work containing public news or comments on public news, and includes a news agency supplying material for publication in a newspaper." Sections 3 and 4 of this Act read thus : "3.(1) Save as otherwise provided in subsection(2), no person shall be liable to any proceedings, civil or criminal, in any Court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament, unless the publication is proved to have been made with malice. (2) Nothing in sub-section (1) shall be construed as protecting the publication of any matter, the publication of which is not for the public good. 4. This Act shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anywhere either disparagingly or otherwise, and he had the greatest regard and respect for him, just as he had for every other Judge in India. He said that he took great care to keep out the fair name of Mr. Justice Hegde although he did so at the risk of the impeachment motion not being admitted. It seems to us, however, that at least to persons who knew that the appeal had been heard by Mr. Justice Shah and Mr. Justice Hegde and that the judgment was drafted and delivered by Mr. Justice Hegde, and to persons who are familiar with the practice of this Court the statement that "the other Judge merely toed his line" must appear as gross contempt of Mr. Justice Hegde and this Court. The expression "toed the line" used in reference to Mr. Justice Hegde, by clear implication, means that the learned Judge, contrary to his own views, followed what was imposed upon him by Mr. Justice Shah. There can be no more flagrant contempt of a Judge than to say that he surrendered his own judgment in deference to or on dictation by another Judge sitting with him. In para 3.2 of his affidavit Respondent No. 1 submitted "But I am not at this stage making any attempt to contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to delay matters. We may mention that the first respondent fully argued his case for a number of days. The procedure adopted by us is the usual procedure followed in all cases. The first respondent contended that the affidavit of Mr. 'S. N. Prasad was defective because the verification was not in accordance with the provisions of law relating to affidavits. In para 2 of the affidavit Mr. S. N. Prasad stated : "that I state that the facts stated in paragraphs 1 and 8 of the petition are true to my personal knowledge and the facts stated in paragraphs 2 to 7 are believed to be true by me on the basis of the information received." (1) [1945] S.C.R. 454; 463 (2) L.R. 2 P.C. 106 at 120 (3) I.L.R. 27 Dom. 394 (4) I.L.R. 4 Rang. 257 at 259-261 The first respondent said that the source of information had not been disclosed. Para 2 of the petition refers to proceedings in this Court and it was not necessary to have disclosed any further source of information. As far as paras 3 and 4 are concerned, the first respondent admits that he approached members of Parliament to file a motion of Impeachment against Mr. Justice Shah. Calling this a "campaign" is only to descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not necessary that a formal charge should be drawn up by the petitioners or the Court. In Nagar Mahapalika of the City of Kanpur v. Mohan Singh,(1) this Court was concerned with the contempt of Allahabad High Court by the Nagar Mahapalika of the City of Kanpur by committing a breach of an injunction issued by the High Court. In this connection Sarkar, J., as he then was, speaking on behalf of the Court, observed : "We will deal first with the case of the Municipality. It will have been noticed that it was not the respondent's case that the Municipality had issued any new licence after the order of July 14, 1961. In fact, it was conceded that it did not do so. What was said was that the Municipality adopted a practice of realising rickshaw taxes from the owners and printing the fact of the receipt of the tax on the rickshaws and permitting them to ply without licences. The way the case seems to have been put before the High Court was that this was a subterfuge adopted by the Municipality to get round the order of the High Court, the object of which was to stop new rickshaws plying for hire, by permitting rickshaws to ply without a licence on payment of the tax. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Member and narrated the deep wrong done to him and he was able to satisfy quite a number. Nobody denies that he has a right to approach and convince the Hon'ble Members and that he exercised that right. But if the petitioners have called it a "campaign" in paras 3 and 4 of the petition, no serious objection can be taken to these paras. In para 8 of this application Respondent No. 1 submitted that there was delay of more than 120 days in filing the petition for contempt. He says that delay is always fatal to contempt action unless it is fully explained and condoned in proper cases and on proper application. We are unable to see any delay in this case. After the first respondent gave a copy of the pamphlet or the booklet to Mr. Mahindroo, the petitioners had to ascertain facts regarding its publication, printing, etc. As the Attorney General did not move in the matter, the President of the Supreme Court Bar and the other petitioners chose to bring this contempt to our notice. It is no doubt desirable, as stated by Oswald(1) that "an application for attachment should be made promptly, or the Court may refuse to attach." But whether there has been delay or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point mentioned in the petition dated January 28, 1971, is regarding non-joinder of the 200 or so signatories of the motion of impeachment. We are unable to see why the petition is bad for non-inclusion of the said signatories. There is no allegation or proof that any of the said signatories circulated this booklet or pamphlet outside the Parliament, to persons other than members of Parliament. (1) A.I.R. 1952 Nag. 34 We may now deal with the other legal submission contained in his affidavit. He submitted, in brief, that the substance of the impeachment motion had already been put in the writ petition which he filed against Mr. Justice Shah on October 27, 1969. According to him, a reproduction of proceedings of court is not contempt unless the Court has prohibited the publication. We are unable to appreciate this line of argument. Even if he had filed a writ petition containing the substance of the impeachment motion, we are unable to see how it affords a defence to the commission of contempt of this Court by circulating the booklet or the pamphlet. In para 21 of his affidavit his defence seems to be that he had told Mr. Justice Shah during the course of the hearing that he was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for printing work. He told the first respondent to see the contractor, Ram Vir, who did composing work for him. He says that he did not look into the material which the first respondent brought for printing and he left the composition work to the con- tractor above-named. He further says that as at about that time his mother-in-law expired he had to go to District Gurdaspur where he stayed about a week and in his absence the first respondent sat day-to-day with the contractor and compositors for having the composition completed quickly and he also got the printing done in his press before he returned from Gurdaspur. After getting the material printed the first respondent collected the same from the press before his return from Gurdaspur. He further says that the printing forms had already been taken away by the first respondent before he returned and it was not possible for him to know the contents. He further says that the title cover of the printed booklet was not printed by him nor was the binding done by him. He further alleges that the first respondent had not even paid his charges. He expressed his unconditional and unqualified apology to this Court. In view of the uncondit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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