PETITIONER: RAMA DAYAL MARKARHA Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT14/03/1978 BENCH: DESAI, D.A. BENCH: DESAI, D.A. FAZALALI, SYED MURTAZA CITATION: 1978 AIR 921 1978 SCR (3) 497 1978 SCC (2) 630 CITATOR INFO : R 1988 SC1208 (17) ACT: Contempt of Courts Act 1977, Sections 5, 13-Fair comments- Publication of pamphlet by an Advocate imputing motives to a Magistrate-Tests to judge if comment is fair. HEADNOTE: The appellant a Senior Practicing Advocate in Umaria District Sahdol, Madhya Pradesh was convicted and sentenced to pay a fine Rs. 1,000/- under s. 19 of the Contempt of Courts Act 1971, by the High Court. The appellant appeared on behalf of some accused persons in a criminal trial before the Additional District Magistrate. The accused were convicted by the Magistrate. They filed an appeal which, was allowed by the Additional Sessions Judge. Before the date for challenging the said judgment of Addl. Sessions Judge by way of revision in the High Court expired, the appellant published a pamphlet. In the pamphlet imputations of improper motive to the learned Magistrate in deciding the case were made. The appellant did not question the authorship and publication of the pamphlet. However, his defence was that what he did was merely publishing a fair comment on the merits of a criminal case which was beard and finally decided and that therefore he was entitled to the benefit of S. 5 of the Act. Alternatively it was contended that even if the Court came to the conclusion that he was guilty of contempt of court no sentence should be imposed upon him because the publication is not likely to substantially interfere or would tend substantially to interfere with the due course of justice and therefore, is entitled to benefit of s. 13. Partially allowing the appeal HELD : 1. The statement in the pamphlet "should the judge with his wayward bend of mind go on using wayward pen" 'is nothing short of imputing a deliberate motivated approach on the part of the Judge. Similarly to say that the judgment proceeded in one direction but thereafter it took a somersault because the Magistrate had resolved to convict the accused in spite of there being no evidence would clearly insinuate that the issues were prejudged by the Judge. [502 C-D] 2. Even prior to the enactment of the Contempt of Courts Act 1971 a fair and reasonable criticism of judicial act did not constitute contempt and this cherished and noble facet of the larger liberty of freedom of speech and expression enshrined in Art. 19(1)(a) of the Constitution has found its echo in s. 5 of the Act. The limit of fair comment being an integral part of the larger liberty of freedom of speech and expression it could not be put in a straight-jacket formula or converted into a master key which will open any lock. More or less it would depend upon the facts and circumstances of each case, the situation and circumstances in which the act was done, the language employed the context in which the criticism was offered and the people for whose benefit the exercise was undertaken and the effect which it will produce on the litigants and society in relation to courts and administration of justice. [502 G-H, 503 A-R] 3. Contempt jurisdiction is a special and to some extent an unusual type of jurisdiction wherein the prosecutor and the Judge are combined in one. To some extent it trenches upon the fundamental Tight of free speech and expression and stifles criticism of a public officer concerned with the administration of public justice in discharge of his public duty. Therefore, the contempt jurisdiction has to be sparingly exercised with utmost restraint and considerable circumspection. [503 H, 504 A, C] Baradakanta v. Registrar, Orissa High Court, AIR 1974 SC 710 at 735; Queen v. Gray, (1900) 2 Q.B. 36 at 40; Regina v. Commissioner of Police of the Metropolis,ex-parte Blackburn, (1968) 2 Weekly Law Reports 1204 at 1207; referred to. 498 Perspective Publications Pvt. Ltd. & Anr. v. State of Maharashtra, [1969] 2 SCR 779 at 791-792 applied. 4. Fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts. But when it is said that the Judge had a predisposition to convict or deliberately took a turn in discussion of evidence because he had already resolved to convict the accused, or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and prejudging of the issues which would bring administration of justice into ridicule. One has to bear in mind the setting in which the court is functioning and the attack on the administration of justice. In this country justice at grass-root level is administered by courts set up in rural backward areas largely inhabitated by illiterate persons. Their susceptibility is of a different type than the urban elite reading newspapers and exposed to wind of change or even wind of criticism. Again the condemner is a lawyer belonging to the fraternity of noble and liberal profession. A criticism by him would attract greater attention than by others because of his day to day concern with the administration of justice. Such criticism is bound to substantially interfere with due course of justice. High Court rightly held that the pamphlet published by the condemner was highly mischievous. [505 H, 506 A-H, 507 A-D 508 C] 5. In the present case a token punishment would serve the ends of justice, because if the contemner while pursuing his object zealously is required to be kept to the path of rectitude, a token fine will also consciously remind the contemner that he is not a gentleman at large. A fine of Rs. 1,000/- was therefore reduced to Re.1/-, while maintaining the conviction. [508 E] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 100 of
1975 .
From the Judgment and Order dated 14-2-1975 of the Madhya
Pradesh High Court in Misc. Criminal Case No. 127/74).
In Person for the Appellant.
I. N. Shroff for the Respondent
The Judgment of the Court was delivered by
DESAI, J. An Advocate, the appellant in this appeal under S.
19 of the Contempt of Courts Act, 1971, was convicted and
sentenced to pay a fine of Rs. 1000/-, in default to suffer
simple imprisonment for one month, by a Bench of the Madhya
Pradesh High Court for committing criminal contempt by
scandalising or tending to scandalise, or lowering or
tending to lower the authority of the Court of Additional
District Magistrate (J), Umaria, then presided over by Shri
A. N. Thakur, by publishing a pamphlet on 1st January 1974
commenting upon a judgment rendered, by Shri Thakur in a
criminal case of which he had taken cognizance on a challan
filed by the police upon a, report made by one Lal Chand
‘against Betai Lal and. his Servant Abdul Majid. The High
Court, took cognizance of the criminal contempt alleged to
have been committed by the appellant upon a reference made
to it by the Presiding Officer of the Court of Additional
District Magistrate (J) under section’15(2) of the Contempt
of Courts Act
499
A resume of the events leading to the reference may be
briefly noticed. One Lalchand, a tenant, reported at the
police station that his landlord Betai Lal and landlord’s
servant Abdul Majid committed criminal trespass into the
premises in his occupation and removed iron sheets which he
had placed in the terrace to arrest leaking of rain water in
the premises and that as the water leaked through the
terrace the goods stored in the premises were damaged and
accordingly Betai Lal and Abdul Majid committed offenses under section
s 451 and 427 of the Indian Penal Code. After
completing, investigation a charge, sheet was submitted in
the Court of Addl. District Magistrate (J). The accused
were represented by the present appellant who is a senior
practicing advocate in Urnaria, District Sahdol (M.P.). The
learned Magistrate upon appreciation of evidence concluded
that both the charges were brought home to the accused aid
passed sentence ,considered appropriate by him. The
conviction and sentence were questioned in an appeal
preferred by the accused in the Court of Additional Sessions
Judge, Umaria, who by his judgment and order dated 21st
December 1973 allowed the appeal and set aside the con-
viction and sentence. Soon thereafter, the offending
pamphlet was published by the appellant. Shri Takur having
come to know of the publication made a reference to the High
Court for initiating action for contempt of court against
the appellant. That is how the matter came before the High
Court.
In the reference made by the Court of Additional District
Magistrate (J), certain passages were extracted from the
pamphlet as indicating the attitude of the appellant towards
the Presiding Officer and the Court and further stated that
“the publication tends to create an apprehension in the
minds of the people regarding the integrity, ability or
fairness of the judge and it also deters actual and
prospective litigants from placing complete reliance upon
the court’s administration of justice” and thus scandalised
the court and the presiding officer as well as lowered the
authority of the court. The original pamphlet is in Hindi.
The High Court had before it the translation which but for
minor variation as suggested by the appellant, has been
accepted by both sides as correctly reproducing what has
been stated in Hindi. These passages posed as questions may
be reproduced in extenso :
“(a) Was Shri Thakur authorised to overlook
the arguments, of counsel ? More so, when two
citizens were to be sentenced to imprisonment?
(b) Has not Shri Thakur’s conduct been an open
insult to the Advocate concerned. as also to
the Advocates in general ?
(c) Has not Shri Thakur’s conduct damaged the
prestige of the sacred. post of the Judge ?
(d) Was this witness (a resident of Jaithari)
according to wisdom of Shri Thakur, competent
to give information after seven months from
21st June 197T that on this date at Chandia it
was raining, or that damage was caused to
particular person
500
(e) When the nation’s entire might, police
army etc., is ready to enforce obedience from
every person of the orders of a Judge, is it
proper that the Judge himself should in this
manner with his wayward bent of mind go on
using his
wayward pen ?
(f) Why did Shri Thakur, after suddenly
twisting his own finding, write in the next
sentence that the accused entered in the house
of Lalchand and that they entered in such a
manner that for an offence under section 451
it became necessary to impose such a ‘severe
sentence ?
(h) Did Shri Thakur knowingly took (sic) this
turn, because, be had resolved to convict the
accused in spite of there being no evidence ?
Otherwise there is no understandable reason
for this turn.”
Some more questions are also posed by the appellant in the
pamphlet of which the High Court has not taken any note of.
On am analysis of the questions posed with necessary
innuendos and insinuations contained therein, the High Court
concluded that “the imputation of improper motive to a
judicial officer in deciding a case by an Advocate who has
lost, is a very serious matter, more so when the Court is
concerned with a mofussil place where there are one or two
courts and a few lawyers and the litigating public is mostly
illiterate or poorly educated” and, therefore, the criticism
as contained in the booklet is highly mischievous and it is
bound to undermine the confidence of litigant public in the
administration of justice. They are likely to feel that
justice administered by subordinate judicial officers is not
fair and impartial, and, therefore, the appellant is guilty
of criminal contempt and if it goes unpunished, it will
substantially) obstruct the due course of justice.
The appellant does not question the authorship and
publication of’ the pamphlet by him. In fact, his attempt
is to justify the course of action taken by him. Broadly
stated, his defence is that what he his done is merely
publishing a fair comment on the merits of a criminal’ case
which has been heard and finally decided and, therefore, he
is. entitled to the benefit of s. 5 of the Contempt of
Courts Act. Alternatively, it was suggested that even if
the Court comes to the conclusion that the appellant is
guilty of contempt of court, no sentence should be imposed
upon him because the publication is not likely to,
substantially interfere or would tend substantially to
interfere with the due course of justice and, therefore, he
is entitled to the benefit of. s. 13.
Even though the Addl. District Magistrate (J) while making
the reference extracted the passages from the pamphlet which
were considered as constituting contempt of the Court, it
also annexed to the reference a copy of the pamphlet and the
High Court issued notice in respect of passages extracted by
it kind reproduced in extenso hereinabove. However, while
holding the contemner of contempt of court, the High Court
appears to have been mainly influenced by
501
passages marked ‘R’ and ‘H’ by it in the judgment. In this
background, the contemner made a sort of a preliminary
submission that while dealing with the appeal this Court
should confine itself to only those passages noticed by the
High Court in holding him guilty of contempt and the other
passages, even if they find a place in the judgment, should
be ignored. Ordinarily, it is true that this Court while
hearing an appeal against a conviction for contempt of Court
would confine its attention to the material’ which hag
received consideration of the High Court while adjudging the
contemner guilty. However, there would be no lack of
jurisdiction to take into consideration the passages in
respect of which notice for contempt was issued and served
upon the contemner. But the wider question of law apart, we
propose to confine ourselves only to the material which has
received the consideration of the High Court. The question
marked ‘E’ is a composite statement, the first being an
innocuous one expostulating the power and authority behind
the judicial pronouncement, but in the latter part the
contemner proceeds to state that though there is tremendous
sanction behind the judicial pronouncement, ‘should the
judge with his wayward bend of mind go on using his wayward
pen’. In question marked ‘H’ it is insinuated that Shri
Thakur knowingly took the turn at some stage in the judgment
‘because he had resolved to convict the accused in spite of
there being no evidence. Otherwise there is no
understandable reason for this turn.
The High Court was of the opinion that it was not possible
to say that the conclusions reached by Shri Thakur even if
erroneous, could not have been reached judicially by him and
the reversal of his judgment could not give rise to an
inference that in convicting the accused he was unfair or
that he was actuated by an improper motive. The High Court
further observed that a reading of the criticism contained
in the booklet goes to show that the author wanted to convey
that the judgment delivered by Shri Thakur was entirely
unfair and that be knowingly delivered such a judgment and
convicted the accused in spite of there being no evidence
and that he twisted big findings to that end. Do the
questions posed with implied insinuates convey to a lay
reader that the judge lacks judicial equipoise, fairness,
open mind and is guilty of prejudging issues which apart
from scandalising the court, would interfere with
administration of justice in that the litigant would be
scared away on the apprehension that the judge lacks
fairness, objectivity, impartiality and judicial approach ?
The contemner, arguing his appeal in person, submitted that
the High Court was in error in infusing into record the
judgment of the Addl. Sessions Judge in appeal against the
judgment of Shri Thakur on which the contemner had not
relied but which, was called form by the High Court while
hearing the contempt action, and that averments of facts in
the appellate judgment of the Addl. Sessions Judge could
not have been utilised to hold that even if the. conclusions
of Shri Thakur were erroneous they were not such as could
not have been reached judicially by him. The offending
pamphlet was published after the appeal preferred against
the judgment of Shri Thakur was allowed by the learned Addl.
Sessions Judge and the conviction and sentence of
502
the accused were set aside. As the judgment of Shri Thakur
was the focal point of attack by the contemner, it was
imperative for the High Court to take into consideration the
appellate judgment against the judgment under attack so as
to satisfy itself whether the judgment was so manifestly
incorrect or perverse as to merit a scurrilous attack on it.
The submission of-the contemner that the appellate judgment
should not have been taken into consideration has no merit.
If the two questions extracted above are read by consumers
of judicial service what effect is likely, to., be caused on
their minds ? On reading a judgment if it appears that the
judgment read as a whole discloses a wayward bend of mind of
a judge which forces a wayward pen even if it is a contempt
it could be ignored because it is a conclusion reached on a
fair reading of the judgment which consumers of judicial
service have a right to comment upon. But to say that the
judge with a wayward bend of mind has wielded at wayward pen
is nothing short of imputing a deliberate motivated approach
on the part of the judge which is other than judicial
indicating lack of dispassionate analysis and judicial
objectivity. Similarly to say that the judgment proceeded
in one direction but thereafter the judgment took a
somersault because be bad resolved to convict the accused in
spite of there being no evidence would clearly insinuate
that the issues were prejudged by the judge. There is no
greater calumny or infamy for a judge bound by the oath or
duties) of his office not to decide a matter on record
placed before him judicially which imply dispassionately and
objectively. Prejudging an issue is the very anti-thesis of
a judicial process. To accuse a judge that he proceeded to
reach a conclusion because of his preconceived notion or
prior resolution is to accuse him of an entirely injudicious
approach. The conclusion, therefore, reached by the High
Court that the criticism of the judgment made by the
contemner was wholly unjustified, is unexceptional.
The contemner strenuously contended that actuated by the
most laudable object of contributing to the establishment of
rule of law in our democratic polity, an ideal cherished by
our Constitution and established for the benefit-of the
rural backward population, the very fact which has appealed
to the High Court in convicting the appellant a member of
the legal fraternity for contempt, he published the pamphlet
fairly commenting on the merits of a case already decided so
that people’s faith in administration of justice is
vindicated. Even prior to the enactment of the Contempt of
Courts Act, 1971, a fair and reasonable comment of a
judicial act did not constitute contempt and this cherished
and noble facet of the larger liberty of freedom of speech
and expression enshrined in Article 19(1)(a) of the
Constitution has found its echo in s. 5 of the Contempt of
Courts Act which provides that a person shall not be guilty
of contempt of court.for publishing any fair comment on the
merits of any case which has been heard and finally decided.
What constitutes fair comment and what are its peripheral
limits beyond which the comment ceases to be fair and strays
into the forbidden field inviting penalty, has been the
subject-matter of a catena of decisions. The limit of fair
comment being
503
an integral part of the larger liberty of freedom of speech
and expression it could not be put in a straight-jacket
formula or converted into a master-key which will open any
lock. More or less it would depend upon the facts and
circumstances of each case, the situation and circumstances
in which the comment was made, the language employed, the
context in which the criticism was offered and the
people for whose benefit the exercise was undertaken, and
the effect it will produce on the litigants and society in
relation to courts and administration of justice.
Before we examine the most important submission in this
case , that the contemner had merely published a fair
comment on the merits of a case which had been heard and
finally decided, a submission made by Mr. Shroff on behalf
of the respondent may be briefly disposed of. It was
submitted that in order to attract s. 5 it must be
affirmatively shown that the case in respect of which
comments were offered Was heard and finally decided and that
the expression heard and finally decided, would comprehend
that the limitation for appeal had also expired and the
judgment had become final inter partes. Proceeding from
this angle it was said that the judgment in appeal was
rendered by the Addl. Sessions Judge on 23rd December 1973
and the offending publication saw the light of the day on
1st January 1974 and that the limitation for appeal by the
State against the order of acquittal being 90 days, the
limitation had not expired and, therefore, it could not be
said that the case was finally decided. Mr. Shroff
submitted with due deference to the contemner who is an
advocate that the timing of the publication was deliberately
chosen with a view to forestalling the appeal that the State
might contemplate. There is considerable force in this
submission of Mr. Shroff but we do not propose to deny to
the contemner the benefit of s. 5 if in fact he is entitled
to it on the short ground that the case was not finally de-
cided. Explanation appended to s. 3 would clearly show that
the, proceeding either civil or criminal shall be deemed to
continue to be pending until it is heard and finally
decided, that is to say, in a case where an appeal or
revision is competent, until the appeal or revision is heard
and finally decided or, where no appeal or revision is
preferred, until the period of limitation prescribed for
such appeal or revision has expired. Obviously, on 1st
January 1974 the limitation for preferring an appeal by the
State against the order of acquittal had not expired and,
therefore, Explanation to s. 3 would be clearly :attracted
and the proceeding could be said to be pending and could not
be said to be heard and finally decided. However,, as the
High ‘,Court has not shut out the defence of fair comment on
the short ground that the proceeding was pending, we would
not refuse to ,examine the defence of fair comment if the
appellant is in a position to substantiate the same.
The High Court has held the contemner guilty of criminal
contempt in that by the offending publication the contemner
has scandalised or tended to scandalise or lowered or tended
to lower the authority of the Court and it substantially
interferes the due course of justice. Contempt jurisdiction
is a special and to some
504
extend an unusual type of jurisdiction where in the
prosecutor and, the judge are combined in one. To some
extent it trenches upon the fundamental right of free speech
and expression and stifles criticism. of a public officer
concerned with administration of public justice in discharge
of his public duty. In the words of Krishna Iyer, J : “the
cornerstone of the contempt law is the accommodation of two
constitutional values, the right of free speech. and the
right to independent justice. The ignition of contempt
action should be substantial and mala fide interference with
fearless judicial action, not fair comment or trivial
reflections on the judicial process and personnel” (vide
Baradakanta v. Registrar, Orissa High Court).(1) Therefore,
the contempt jurisdiction has to be sparingly exercised with
utmost restraint and considerable circumspection.
Undoubtedly, judges and courts are alike open to criticism
and if reasonable argument or expostulation is offered
against any judicial act as contrary to law or the public
good, no court could or would treat that as contempt of
court, vide Queen v. Gray.(2) No criticism of a judgment,
however vigorous, can amount to contempt of court, providing
it keeps within the limits of reasonable courtesy and good
faith, vide Regina v. Commissioner of Police of the
Metropolis, exparte Blackburn.(3) Lord’ Denning, M.R. in the
same case further observed that “those who comment can deal
faithfully with all that is done in a court of justice.
They can say that we are mistaken, and our decisions
effoneous, whether they are subject to appeal or not.” After
referring to these, cases, the contemner drew our attention
to the celebrated passage ofLord Atkin in Andre Paul v.
Attorney-General(4), which has almost become a classic. It
reads as under
“But where the authority and position of an
individual Judge or the due administration of
justice is concerned, no wrong is committed
by any member of the public who exercises
the ordinary right of criticising in good
faith in private or public the public act done
in the seat of justice. The path of
criticism is a public way : the wrong
headed are permitted to err therein : provided that
members of the public abstain from imputing
improper motives to those taking part in the
administration of justice, and are genuinely
exercising a right of criticism and not acting
in malice or attempting to impair the
administration of justice, they are immune.
Justice is not a choistered virtue : she must
be allowed to ‘suffer the scrutiny and
respectful, even though outspoken, comments of
ordinary men”.
In Perspective Publications Pvt. Ltd. & Anr. v. State of
Maharashtra,(5) a Bench of three judges of this Court, after
referring to
(1) A.I.R. 1974 S.C. 7 10 at 7 3
(2) (1900) 2 Q.B. 36 at 40.
(3) (1968) 2 Weekly Law Reports 1204 at 1207.
(4) A.I.R. 1936 P.C. 141 at 145-146.
(5) [1969] 2 S.C.R. 779 at 791, 792.
505
the leading cases on the subject, formulated the principles
which ,would govern cases of this kind. They read as under:
“(1) It will not be right to say that
committals for contempt for sacndalizing the
court have become obsolete.
(2) The summary jurisdiction by way of
contempt must be exercised with great care and
caution and only when its exercise is
necessary for the proper administration of law
and justice.
(3) It is open to anyone to express fair,
reasonable and legitimate criticism of any act
or conduct of a judge in his judicial capacity
or even to make a proper and fair comment on
any decision given by him because “justice is
not a cloistered virtue and she must be
allowed to suffer the scrutiny and respectful,
even though outspoken, comments of ordinary
men”.
(4) A distinction must be made between a mere
libel or defamation of a judge and what
amounts to a Contempt of the court.
The test in each case would be whether the
impugned publication is a mere defamatory
attack on the judge or whether it is
calculated to interfere with the
administration of justice or the proper
administration of law by his part. It is only
in the latter case that it will be punishable
as contempt.
(5) Alternatively the test will be whether the
wrong is done to the judge personally or it is
done to the public. To borrow from the
language of Mukherjea, J. (as he then was)
(Braluma Prakash Sharma’s case, (1953) SCR
1169, the publication of a disparaging
statement will be an injury to the public if
it tends to create an apprehension in the
minds of the people regarding the integrity,
ability or fairness of the judge or to deter
actual and prospective litigants from placing
complete reliance upon the court’s
administration of justice or if it is likely
to cause embarrassment in the mind of the
judge himself in the discharge of his judicial
duties”.
Applying the aforementioned formulated tests to the facts of
this case, could it be said that the extracted offending
passages with a tinge of sarcasm offer reasonable and
legitimate criticism of a case which was heard and finally
decided ? Fair and reasonable criticism of a judgment which
is a public document or which is a public act of a Judge
concerned with administration of justice would not
constitute
506
contempt. In fact, such fair and reasonable criticism must
be encouraged because after all no one, much less Judges,
can claim infallibility. A fair and reasonable comment
would even be helpful to the judge concerned because he will
be able to see his own shortcomings, limitations or
imperfection in his work. The society at large is
interested in the administration of public justice because
in the words of Benjamin Cardozo, “the great tides and
currents which engulf the rest of men do not turn aside in
their course and pass the judges by” (Benjamin N. Cardozo-
The Nature of the Judicial Process, p. 168). Such
permissible. criticism would itself provide a sensible
answer to sometimes ill-informed criticism of judges as
living in ivory towers. But then the criticism has to be
fair and reasonable. Such a criticism may fairly assert
that the judgment is incorrect or an error has been
committed both with regard to law or established facts. It
is one thing to say that a judgment on facts as disclosed is
not in consonance with evidence or the law has not been
correctly applied. Ordinarily, the judgment itself will be
the subject-matter of criticism and not the judge. But when
it is said that the judge had a pre-disposition to convict
or deliberately took a turn in discussion of evidence
because he had already resolved to convict the accused, or
he has a wayward bend of mind, is attributing motives, lack
of dispassionate and, objective approach and analysis and
pre-judging of the, issues, which would bring administration
of justice into ridicule if not infamy. When there is’
danger of grave mischief being done in the matter of
administration of justice, the animadversion cannot be
ignored and viewed with placid equanimity. If the criticism
is likely to interfere with due administration of justice or
undermine the confidence which the public rightly repose in
the courts of law as courts of justice, the criticism would
cease to, be fair and reasonable criticism as contemplated
by s. 5 but would scandalise courts and substantially
interfere with administration of justice. As said in Gray’s
case, (supra) any act done or writing published calculated
to bring the court or judge of the court into contempt or to
lower his authority is a contempt of the court, because
nothing is more pernicious in its consequences than to
prejudice the mind of the public against judges of the Court
responsible for dispensing justice.
it is also to be borne in mind the setting in which the
court is functioning and the attack on the administration of
justice. In this country justice at grass-root level is
administered by courts set up in rural backward areas
largely inhabitated by illiterate, persons. It is they who
bring their problems to the court for resolution and they
are the litigants, or consumers of justice service. Their
susceptibility is of a different ,-type than the urban elite
reading newspaper and exposed to wind ofchange or even wind
of criticism. The people in rural backward areas
unfortunately illiterate have different kinds of
susceptibilities. A slight suspicion that the judge is
predisposed or approaches the case with a closed mind or has
no judicial disposition would immediately affect their
susceptibilities and they would lose confidence in the
administration of justice. There is no greater harm than
infusing or instilling in the minds of such people a lack of
confidence in the character and integrity of the judge.
Conversely, it makes the task of the judge extremely
507
difficult when operating in such area. In this case the
setting is in a small backward rural area in the, State of
Madhya Pradesh and which aspect has especially appealed to
the High Court in adjudging the appellant guilty of
contempt. Again, the contemner is a lawyer belonging to the
fraternity of noble and liberal profession. A criticism by
him would attract greater attention than by others because
of his day-to-day concern with the administration of
justice, in that area and his belief about the judge’s
judicial disposition would adversely affect a large number
of persons. Therefore, when in such a back-round it is said
that the judge has a wayward bend of mind and wields a
wayward pen and that he took a deliberate turn in the
discussion of evidence because he had resolved to convict
the accused would indicate that the judge has no judicial
disposition and that he pre-judges the issues and there
cannot be a greater infamy and calumny apart from the, judge
of the Court. People around would lose all confidence in
him and in the ultimate analysis the administration of
justice would considerably suffer, and, therefore, would
constitute contempt.
The contemner further submitted that prosecution for
contempt for scandalising the court has become obsolete. We
need not examine this submission in detail. In Perspective
Publications’ case (supra) after examining this argument and
considering the leading decisions it has been said that
prosecutions for scandalising court have not become obsolete
and we are in respectful agreement with it.
It was next contended that even if the comments made by the
appellant appear in bad taste or that they are outspoken or
blunt, in view of s. 13 no sentence can be imposed upon him
for contempt unless the court is satisfied that the contempt
is of such a nature that it substantially interferes or
tends substantially to interfere with the due course of
justice. After drawing our attention to Bridges v.
California(1), in which it is said that the judges must be
kept mindful of their limitations and their ultimate public
responsibility by vigorous stream of criticism expressed
with candor however blunt, it was said that we should bear
in mind the most laudable object with which the contemner
published the comments and in his enthusiasm for a public
cause, viz., establishment of rule of law in backward area,
and, therefore, even if he had strayed slightly from the
path of rectitude, the case does not call for sentence as
contemplated by s. 13 of the Contempt of Courts Act. This
submission cannot be fully answered unless we refer to one
aspect of the matter which the High Court has taken into
consideration and which we were keen to avoid. The
appellant is a practicing advocate and is a mature old nips
having had the experience of long, practice at the Bar. If
he was dissatisfied with the judgment a s he was appearing
for the accused who were convicted by the learned
Magistrate, the proper course was to prefer an appeal which
he did adopt. After the appeal was allowed, the appellate
judgment was bound to be sent to the trial court and the
error of the Magistrate must have been pointed out. If be
was still not satisfied, it was open to the contemner to
submit a petition to the High Court as envisaged by s. 6. of
the Contempt of Courts Act, 1971. Assuming that this
course, was
(1) [1941] 334 U.S. 252.
508
an optional one and in the words of Lord Denning, silence is
not an option when things are ill-done, he, actuated by a
desire to serve the public cause, came out with a pamphlet
criticising the judgment, looking to the language used,
could he be said to have slightly erred or strayed
marginally from the path of rectitude Conceding that
judges.must suffer criticism willingly, it is not the ques-
tion of their personal villifficafion but the effect it has
on the administration of public justice which is the
cornerstone of contempt action. The judge villified
relevant to his judgment would always shudder at the idea of
writing a judgment which cannot meet the high standard of
the present contemner. in fact the vituperative language
was the outcome of a defeated advocate which appeared to be
a very serious matter to the High Court more so when
concerned with a mofussil place where there are one or two
courts and a few lawyers, and the litigating public, is
mostly illiterate or poorly educated, and it is such a thing
which could not be ignored or allowed to pass by. Such
criticism is bound to substantially interfere with due
course of justice because in the opinion of the High Court,
with which we are in agreements the pamphlet published by
the contemner was highly mischievous. Therefore, this is
not a fit case for giving benefit of S. 1 8 to the
contemner.
The contemner did not recant either before the High Court or
eve before us. Even then the question is whether the
sentence of fine of Rs. 1000/ is called for in this case.
The contemner also ‘showed some other pamphlets which he had
published. Either he is trying to impose himself upon
courts or in his mistaken zeal he is publishing pamphlets
criticising judgments of the courts. We are mindful of the
fact that the judges must be feeling extremely inconvenient
whenever the contemner must be appearing before them but we
must not be oblivious to the fact that the path of justice
is not strewn with roses and justice being not a cloistered
virtue, it must be allowed to suffer the scrutiny and
respectful, even though outspoken, comments of ordinary men,
more so, by lawyers who are directly involved in
administration of justice. While, therefore, not
exonerating the contemner, we think a token punishment would
serve the ends of justice because if the contemner while
pursuing his object zealously is required to be kept to the
path of rectitude, a token fine will also consciously remind
the contemner that he is not a gentle map at large. We,
therefore, modify the sentence of fine awarded by the High
Court and impose a token fine of Re. 1/- on the contemner,
in default to suffer simple imprisonment for a week.
Accordingly, this appeal is partly allowed. We, confirm the
conviction of the appellant contemner for contempt of court,
but modify the sentence directing him to pay a fine of Re. 1
/-, in default to suffer simple imprisonment for a week.
The fine, if already paid, balance shall be refunded to him.
In the circumstances of the case, there shall be no order as
to costs
Appeal partly allowed.
P.H.P.
509