In Re: Lalit Kalita And Ors. vs Unknown on 4 March, 2008

JUDGMENT

Ranjan Gogoi, J.

1. In a vernacular daily “Ajir Dainik Batori” published from Guwahati dated 10.8.2005, the following news item (translated version) was published:

Even Hon’ble Judge is in Himanta Biswa’s grip.

Sensational appeal in Gauhati High Court Staff Reporter

Guwahati, August 9,-AP.I.L filed in the Gauhati High Court which is a testimony (testify) how Himanta Biswa Sarma, Minister of the State for Finance, Planning and Agriculture, Assam, who has gradually become impudent because of blind support from Chief Minister Tarun Gogoi, is trying to corrupt (desecrate)even the interior of Hon’ble Court, has vigorously shaken the conscious section of the people in the State. According to a copy of this petition that has reached us this tainted young minister not only caused disappearance of the records of two serious cases registered at Chandmari PS but was also been able to misguide a judge by his political influence. As per information that have reached us, a case was registered against Himanta Biswa Sarma, then a student, at Panbazar P.S. on 12.1.91 for offences punishable under section (i)(A) of Arms Act, and under sections 3 and 4 of TADA 1987, for having collected a huge amount of money in the name of ULFA.

The number of this case was 15 on the other hand, on March 28 of the same year a case was registered against him at Chandmari P.S. for offences punishable under Sections 10, 11, 12 and 13 of Unlawful Activities (Prevention) Act, 1987 and under TADA on the basis of an ejahar alleging collection of money from a few senior Govt. officers and some selected businessmen in Greater Guwahati in the name of ULFA by threat and even by physical assault. The number of this case was 17. As per information gathered during preliminary investigation at that time, the amount of money illegally collected by Himanta Biswas Sarma was more than 90 lakhs. Only for the Chandmari P.S. case the police not only arrested him, but also sent him to jail. Immediately after his release from jai1 on bai1 a cunning Himanta Biswa upturned all equations. Leaving aside the Chatra Santha, he overnight took shelter with then powerful Chief Minister Hiteswar Saikia. Adept in the politics of sycophancy, Himanta Biswa Sarma became the most trusted lieutenant of Chief Minister Hiteswar Saikia in a very short time. About that time the records of the cases involving Himanta Biswa Sarma got mysteriously missing from both Chandmari and Panbazar Police Stations. Even the most vital case diaries also could not be traced (?). This resulted in complete stagnation of the entire investigation procedure. Subsequently, the C.J.M., vide his Order dtd. 8.1.99 instructed the investigating officer, A.S.I. T.K. Das to prepare the case records fresh including the case diaries. But the later refrained from doing so, saying that the records had not been returned by Sri Asim Roy, the then DIG of Police, Assam. Whereas departmental proceeding should have been initiated into the allegations of mysterious disappearance of records of a number of cases registered against him with several police stations, it was Himanta Biswa Sarma who filed a Writ Petition in the Gauhati High Court praying for acquittal of the charges the records which were not available with the registering authority- the Police Stations. The High Court allowed eight weeks’ time for re-examination of the records but that Order remained unpursued. No documents relating to the cases have reached the High Court even after so many years have elapsed. Even the High Court also did not show any interest (urgency) in the matter.

Even as these incidents were going on, Himanta Biswa Sarma got elected to the Assembly from Jalukbari constituency, soon after becoming the Finance Minister, he became the most powerful minister in the State. On 22.03.04 Bhuban Gogoi, President, Daksin Nanoi Gaon Panchayat, Nagaon filed a P.I.L in the High Court to stop Himanta Biswa Sarma from influencing the Court in giving a judgment in his favour. The case came up for hearing in the Division Bench of Chief Justice Naolekar and Justice Ranjan Gogoi on 08.06.04. Surprisingly, the Chief Justice kept himself off from hearing the case, saying that since Himanta Biswa Sarma, as member of the Gauhati High Court Construction Committee, was frequently meeting him, he should not take up for hearing the case involving him. Consequently, the case (P.I.L No. 16) was listed in the Division Bench of Justice P.G. Agarwal and Justice D. Biswas for hearing on 18.6.04. Although Justice Biswas laid great importance to the contents of the P.I.L, Justice Agarwal summarily rejected the same, saying that it was absolutely baseless. Significantly, though there was difference of opinion between the two justices on the acceptability of the P.I.L., Justice Agarwal (played a major (noticeable) role in negating the issue).

Be that as maybe, the judgment in the said P.I.L was delivered after ninety days. Aday after that Justice Agarwal started for Singapore on a pleasure trip. Who bore the expenditure of that trip is still a mystery. What is more interesting is that during the pendency of the said P.I.L, a plot of 20 bighas of govt. land at Village Numalijoha under Mauza Shila Sendurighopa in Himanta Biswa Sarma’s Jalukbari constituency was allotted in favour of M/s Jerico Detergent Private Limited, an organization owned by Justice Agarwal’s daughter. Deputy Commissioner (Rural), Kamrup, vide his letter No. KRS164/04/13 dtd. 29.9.04, allotted this land to Justice Agarwal’s daughter and son-in-law for a paltry sum of Rs. 50,000.00 per bigha although the prevalent market value of the said land the was at least rupees two crores. That was not all, a son of Justice Agarwal also developed intimacy with Minister Sharma and was rewarded (obtained) with the licence for a wine shop.

At a time when, for use of a telephone or for being forced to shelter an ULFA Cadre for a night, the common citizens are constantly being harassed by the Police, the army and even by the Courts, the P.I.L. of Bhuban Gogoi against showering undue favour on Himanta Biswa Sarma by the Police Stations, Police Officers, Courts and the presiding judges has caused a considerable stir in the minds of people.

The words included in brackets as above, according to the respondents, would be a more accurate version of the translation made.

2. The aforesaid translated news item having been placed before the Hon’ble Chief Justice (Acting), by an order dated 3.10.2005 the matter was directed to be posted on the judicial side. Thereafter, by order dated 4.10.2005, the Court directed notice to be issued to the publisher, the editor and the executive editor of the newspaper. Pursuant to the said order of the Court, notices were issued. In response thereto, the respondent Nos. 1,2 and 3 i.e. the publisher, the editor and the executive editor of the newspaper appeared in the Court through their counsel. The Court had appointed Mr. A.K. Goswami, a learned senior counsel as the amicus curiae in the present proceeding.

3. Three sets of affidavits dated 2.1.2006, 3.3.2006 and 4.1.2008 have been filed by each of the respondents. The stand taken by the respondents in each of the affidavits will be necessary to be noticed at this stage.

4. In the affidavit dated 2.1.2006 filed by the respondent No. 1 i.e. the publisher it has been stated that by order dated 4.10.2005 passed by the Court no cognizance of any contempt committed by the respondents has been taken by the Court; no charge under Section 17 of the Contempt of Courts Act, 1971 (hereinafter referred to as ‘the Act), has also been specified or framed. In the affidavit filed, the respondent No. 1 has further stated that the news item in question was published in respect of the proceeding registered and numbered as PIL No. 16/2004 and WP(C) No. 558/99, both of which had been disposed of on 1.10.2004 and 31,3.2004 respectively. It is, therefore, asserted that as the news item was in connection with a proceeding which was not pending at the time of publication of the same, publication of the said news item will not constitute contempt of the Court. That apart, the respondent No. 1, in the affidavit filed, has further stated that the news item in question contains only fair comments based on the facts mentioned therein and that the same does not cause any interference in the administration of justice; neither does the said news item, according to the respondent No. 1, bring the Court or any Hon’ble Judge to disrepute. The respondent No. 1, in the affidavit dated 2.1.2006, has categorically stated that the words “is trying to cormpt (desecrate) even the interior of the Hon’ble Court” and ” has also been able to misguide a judge by his political influence” is an honest opinion expressed and that the imputation contained clearly is directed only against an individual i.e. Himanta Biswa Sarma and not against the Hon’ble Court or any Hon’ble Judge. Similarly, the sentence reading as “even the High Court also did not show any interest (urgency) in the matter” is an expression of a fair comment and a reflection of the opinion formed from the facts based on records. In this regard, the respondent No. 1 has stated that the writ petition filed by Sri Himanta Biswa Sarma on 11.2.99 [WP(C) 558/99] had remained pending in the Court for more than years without any progress. In para 9 of the affidavit dated 2.1.2006, according to the respondent No. 1, the sentence reading as “Although Justice Biswas laid great importance to the contents of the PIL, Justice Agarwal summarily rejected the same, saying that it was absolutely baseless. Significant, though there was difference of opinion between the two Hon’ble Judges on the acceptability of PIL, Justice Agarwal played a major role in negating the issue” contains an impression formed by the editor who was personally present in the Court on the date of hearing and, therefore, publication of the said sentence is an exercise of freedom of the press and freedom of speech and expression enshrined under Article 19(1) (a) of the Constitution. In so far as the third part of the news item in question, i.e. allotment/settlement of land is concerned, according to the respondent No. 1, the said report is based on information derived from the records and the same was published with the intention of drawing the attention of the public to the correct facts. The respondent No. 1 has further asserted that it is the duty and responsibility of a free press to bring matters of public importance to the notice of the general public. In this regard, the respondent further states that 20 bighas of land in Village Numalijallah under Shila Sendurighopa Mouza was settled by the Government of Assam with M/s Jerico Detergents Private Limited on payment of 150% of the land value (Rs. 50,000/- per bigha) as premium by Government letter No. RSS.708/2004/32 dated 20.1.2005 on the recommendation of the Deputy Commissioner, Kamrup (Rural) by letter No. KRS. 169/2004/13.dated 29.9.04. The respondent has asserted that though in the Government letter dated 5.12.2003, the valuation of the land in Greater Guwahati Town area had been fixed, the price of the land in Numalijallah village was not included. However, according to the respondent, on the basis of the information gathered, the market price of the land in an around Numalijallah would be several times higher than Rs. 50,000/- per bigha. In addition to the above, the respondent No. 1, in the affidavit filed, has stated that in another vernacular daily newspaper i.e. Akhomiya Khabar, in the issue published on 3.2.2005, it was reported that another 20 bighas of land was allotted to M/s Jerico Detergent Private Limited at a nominal price. As according to the respondent, large areas of land were being settled with the Company in question at premiums substantially lower than the value fixed by the Government in the neighbouring localities, it was considered necessary to publish the said facts in the news item in question. In so far as the sentence “a son of Justice Agarwal also developed intimacy with Minister and was rewarded with (obtained) a licence for a wine shop” is considered, the respondent No. 1, in the affidavit filed, has stated that the same is a fair comment and would not attract the provisions of the contempt law. In paragraph 16 and 17 of the affidavit filed, the respondent No. 1 has stated that the news item in question merely “contain reasonable and fair comments based on authentic and acceptable materials”. According to the respondent No. 1, the said facts were published to draw public attention to the attempts made by the politicians to pollute even the judicial system by showing undue favour to persons or organizations where a Judge may be interested. The said news item, according to the respondent, was not intended to bring disrepute to the Court or to any Hon’ble Judge. In the concluding part of the affidavit, the respondent No. l has, however, stated that after going through the news item in question “he believes that the language and tone of the news item should have been polite, respectful and dignified and the words chosen should have been more carefully done”. According to the respondent No. 1, this lapse has made him repentant for which he tenders his sincere and unqualified apology to the Court.

5. In the affidavit dated 2.1.2006 filed by the respondent No. 2 i.e. the editor of the newspaper apart from the statements made in the affidavit of the first respondent, as noticed above, there are certain additional statements of fact which must be taken note of by the Court. The respondent No. 2, in the affidavit filed, has asserted that the notice issued by the Registry of the Court pursuant to the order dated 4.10.2005 asks the respondent merely to show cause which is not in conformity with the notice prescribed by Rule 6(3) of the Contempt of Courts (Gauhati High Court) Rules, 1977. According to the respondent, the notice issued requiring him to show cause is also not in conformity with the order of the Court dated 4.10.2005, inasmuch as, there is no direction in the aforesaid order requiring the respondent to show cause. According to the respondent No. 2, the sentence “Although Justice Biswas laid great importance to the contents of the PIL, Justice Agarwal summarily rejected the same, saying that it was absolutely baseless. Significantly, though there was difference of opinion between the two justice on the acceptability of PIL, Justice Agarwal played a major role in negating the issue” appearing in the second paragraph of the news item was based on an impression of the respondent No. 2, which impression was formed after hearing the interaction between the Hon’ble Judges of the Bench and the learned Counsel for the parties. In the affidavit filed, the respondent No. 2 has further stated that when the matter came up for hearing on 1.7.2004, a prayer was made on the behalf of the petitioner for a short adjournment to file a reply affidavit and also to enable the out-station counsel engaged by the petitioner to be present at the hearing. According to the respondent No. 2, while Justice Biswas was inclined to allow the adjournment, Justice Agarwal had expressed his opinion that there was no merit in the PIL and therefore the adjournment prayed for need not be granted. Thereafter, according to the respondent No. 2, the PIL was heard on 1.7.2004 by denying the petitioner the privilege of having his case argued by his senior counsel and to file a reply affidavit. The respondent No. 2, in the affidavit filed, has further stated that the hearing taken up in the above manner though was concluded on the same day i.e. 1.7.2004, the judgment in the case was delivered on 1.10.2004 i.e. 91 days after hearing of the matter. Furthermore, in the affidavit filed the respondent No. 2 has stated that the visit of Justice Agarwal to Singapore is a fact and, therefore, the news item stating the said fact does not in anyway affect the integrity and fairness of the Judge nor does it bring the administration of justice to disrepute. In so far as the allotment of 20 bighas of land in the constituency of Sri Himanta Biswa Sarma to the company owned by Justice Agarwal’s daughter and son-in-law is concerned, according to the respondent No. 2, the said part of the report is based on record and relevant information gathered. Elaborating, the respondent No. 2 on the basis of the records of the Company made available by the Registrar of Companies, North Eastern Region, asserts that Justice Agarwal was a share holder of M/s Jerico Detergent Private Limited, in which company, his son, daughter-in-law and other close family members were the other shareholders. In paragraph No. 22 of the affidavit filed by the respondent No. 2, the said respondent has taken full responsibility for the news item by stating that the respondent Nos. 1 and 3 being the publisher and the executive editor they are in no way responsible for publication of the news item in question. In paragraph 23 of the affidavit, the respondent No. 2 has stated that he is a young journalist who is still learning and gathering experience. The respondent No. 2 has further stated that the news item was published for the benefit of the public and the society at large and was not intended to scandalize or lower the authority of the Court. The said respondent has further stated that as a journalist he has always stood for the independence of the judiciary and that notwithstanding the fact that the news item was edited and published in the interest of a public cause, the language used should have been more polite and dignified, for which he is tendering his sincere and unqualified apology to the Court.

6. The affidavit dated 2.2.2006 filed by the respondent No. 3 is more or less to the same effect and, therefore, the contents thereof need not be specifically recited in the present order.

7. The affidavit dated 3.3.2006 filed by the respondent Nos. 1,2 and 3 contains more of less similar averments. Three sentences in the news item have been identified by the respondents as containing undignified and inappropriate language besides being “wholly irrelevant and unnecessary for bringing to public notice the facts intended to be conveyed by the news item dated 10.8.2005”. In the affidavit filed, all the three respondents have expressed their regrets for using “intemperate language in the aforesaid three sentences” and have expressed their repentance for the words used. In the affidavit filed, the respondents have stated that they had taken a joint decision “to tender unqualified apology for using improper language in the aforesaid three sentences by publishing the same prominently in the same newspaper i.e. Ajir Dainik Baton, if so permitted by the Court.

However, in the same affidavit dated 3.3.2006, the respondents have further stated that even prior to the publication of the news item dated 10.8.2005, there was another news item under the caption “Land scandal in North Guwahati sponsored by young minister” which was published on 10.2.2005 in the same newspaper i.e., Ajir Dainik Batori in the first page. The above news item was also in respect of the same subject matter in connection with which the news item dated 10.8.2005 was published. The respondent Nos. 2 and 3, in the affidavit dated 3.3.2006, have further asserted that Justice Agarwal, at the relevant point of time, was holding 18000 shares valued at Rs. 1.80 lakhs in M/ Jerico Detergent Private Limited.

8. The respondents have however stated, in the affidavit dated 3.3.2006, that the intimacy developed by the son of Justice Agarwal with Sri Himanta Biswa Sarma is an individual relationship and that the same has nothing to do with Justice Agarwal. Moreover, it was during the time when Justice Agarwal was holding the office of the Registrar General of the Gauhati High Court at the Principal Seat that the foreign liquor licence was granted to his son which happened to be during the tenure of the AGP Government. In the affidavit dated 3.3.2006, the respondents have further mentioned the details of other news items appearing in other vernaculars/ newspapers published from Guwahati on different dates with regard to the same subject matter involved. The reaction of the Gauhati High Court Bar Association with regard to the aforesaid news items have also been mentioned in the affidavit dated 3.3.2006 by stating that the attention of the Chief Justice of the High Court and the Chief Justice of India was drawn by the Bar Association to the news items in question.

9. Thereafter, pursuant to the stand taken by the respondents in the affidavit dated 3.3.2006 with regard to the three sentences in question and in terms of the orders passed by the Court, in the issue of the newspaper Ajir Dainik Batori, published on 27.11.2007, a clarification was published in a box item on the first page of the newspaper by the respondents. The translated version of the aforesaid clarification as set out by the respondents in their additional affidavit dated 4.1.2008 is as follows:

AJIR DAINIK BATORI DATED 27.11.2007

During the time when we were working as the Editor, the Executive Editor and the publisher of Ajir-Dainik Batori’, respectively, a news item entitled “Even the hon’ble Judge is in Minister Himanta Biswa’s Grip” was published in its issue dated 10″1 August, 2005. We have realized that in the said news item, the heading along with the below mentioned sentences were published in intemperate language and in a manner which was irrelevant and erroneous.

(a) Even the Hon’ble Judge is in Minister Himanta Biswa’s grip.

(b) A day after that Justice Agarwal started for Singapore on a pleasure trip. Who bore the expenditure of that trip is still a mystery.

(c) That was not all, a son of Justice Agarwal also developed intimacy with Minister Sarma and had obtained a licence for a wine shop.

We are expressing our regret for the unnecessary incorporation of these sentences in the news item and for this we are repentant. We tender our unconditional apology before the Hon’ble Gauhati High Court for this unintentional error.

SHRIADEEP KUMAR PHUKAN
SHRI BHUPENDRA NATH
BHATTACHARYYA
SHRI LALITKALITA

10. It must however be noticed that not-withstanding the publication of the above clarification, in the supporting affidavit dated 4.1.2008 the regret expressed and the apology tendered is for the intemperate, undignified and inappropriate language used. Furthermore, neither in the above publication nor in the affidavit dated 4.1.2008 there is any mention that the sentences in question conveyed facts which were incorrect or even inaccurate.

11. The pleadings having been set out, the oral arguments advanced may now be taken note of. Mr. Bhattacharyya, learned senior counsel apart from urging that cognizance of any contempt committed by the respondents has not yet been taken by the Court has also argued that the notices issued to the respondents by the office/Registry is neither in conformity with the order dated 4.10.2005 nor with the form prescribed under the Rules. Mr. Bhattacharyya has argued that the matter, therefore, should not be proceeded with any further by the Court. That apart, Mr. Bhattacharyya has urged that from the very inception of the present proceeding the respondents have been expressing their regret for the undignified and intemperate language used while publishing the news item and that the respondents have tendered their unconditional apology insofar as the three sentences of the news item is concerned. The respondents have in fact withdrawn the said three sentences from the offending news report by publishing a clarification in the front page of the newspaper dated 27.11.2007. Mr. Bhattacharyya has, therefore, argued that what would be left of the news item in question, if the three sentences are allowed to be deleted by the Court, would be the report of the refusal of adjournment on 1.7.2004 by the Bench and the exchange of words between the two Hon’ble Judges sitting on the Bench. According to Mr. Bhattacharyya, publication of the aforesaid facts will not amount to contempt of Court. The other part of the news item which would remain i.e. matter regarding allotment of land, according to Mr. Bhattacharyya, is based on the official Govt. records showing the process of such allotment which record is before the Court. According to Mr. Bhattacharyya, the date of the allotment order issued by the Deputy Commissioner mentioned in the news item is correct and, therefore, substantiated by the official records. If that be so, the news item, in so far as the allotment of land is concerned, is correct.

12. Hence, according to Mr. Bhattacharyya, the respondents will not be liable for contempt for publishing the facts in question which have been demonstrated to be correct by the official records. Mr. Bhattacharyya has alternatively urged that that even if this Court is to hold that the news item contains scandalous and offensive matters, a reading of the news item, at best, would show that the aspersions cast and insinuations made are directed against a particular Judge and not against the institution or the Judges as a whole. If that be so, on the authority of several decided cases, details of which will be noticed later, Mr. Bhattacharyya has contended that the news report in question at best may amount to slander or defamation of the particular Judge to ventilate which grievances, the concerned Hon’ble Judge has adequate remedies in criminal law which maybe availed of. As the administration of justice has not been brought to disrepute and the institution and other Judges are in no way affected even if slanderous facts are assumed to have been made in the offending news item, it is argued that the respondents cannot be made liable under the contempt law.

13. Mr. A.K. Goswami, learned amicus curiae, in the true spirit and traditions of rendering assistance to the Court, has submitted that it is the tenor of the news item as a whole, the insinuations cast or capable of being understood to be cast, if any, and the inferences that the author/ editor is asking the average reader to draw from the facts stated, which must be determined in the instant case by application of the yardstick of a reasonable man. Thereafter, if on application of such yardstick to the facts stated, a conclusion can be reached that the news item contains slanderous remark against the judicial system or cast insinuations or in any way is capable of conveying an impression that affects the system as a whole, it must be held that by publishing the news item contempt has been committed. It is only thereafter, according to Mr. Goswami, that the question of apology and offer of withdrawal of the three offending sentences that must be considered by the Court and if the respondents are to be allowed the said privilege, such conduct of the respondents should be kept in mind by the Court while deciding the question of the penalty that should be imposed. According to the learned amicus curiae, the above would constitute the correct approach that is required to be adopted to arrive at a just conclusion in the matter.

14. Judiciary is not over-sensitive to criticism; in fact, bona fide criticism is welcome, perhaps, because it opens the doors to self- introspection. Judges are not infallible; they are humans and they often err, though, inadvertently and because of their individual perceptions. In such a situation, fair criticism of the viewpoint expressed in a judicial pronouncement or even of other forms of judicial conduct, is consistent with public interest and public good that Judges are committed to serve and uphold. The system of administration of justice, therefore, would receive due impetus from a realization amongst Judges that they can or have actually erred in their judgments; another perspective, a new dimension or insight must, therefore, always be welcome. Such a realization which would really enhance the majesty of the Rule of Law, will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by Judges.

15. Escalating arrears; endless debates even on interlocutory matters and procedural wrangles; decade long trials are some of the instances that demonstrate the increasing in-ability of the judicial system to deliver the goods expected of it. Such instances have far more ominous portents of eroding public confidence in the system than mere publication of a few misguided expressions of opinion either on the substance of a judicial verdict or on the manner in which the verdict has been reached. Public confidence is bound to grow if the system of administration of justice is capable of delivering ‘timely justice’, the deleterious effect of a few misguided publications, notwithstanding. The aim, therefore, should be to gain public confidence by exemplary conduct and performance instead of proceeding in the contempt jurisdiction, an exercise which has often been labeled as a close circuit proceeding where the Judge is the accuser as well as the arbiter. That is why in modern European democracies including the United Kingdom the offence of scandalizing the Court has become near obsolete, as noticed by Michael Addo of the University of Exeter in his Work “Freedom of Expression and the Criticism of Judges”. The approach of the British judiciary in maintaining a story silence in respect of the publication “The fools” appearing in the Times London following a spy catcher case bears ample testimony to the above. The exercise of the contempt jurisdiction must also be viewed from the standpoint of the necessity of not only having a confident judiciary but also a fearless press both of which are indispensable requirements of a healthy democracy. Such a realization must also dawn upon the Fourth Estate and if required by means of a judicial message. The observations of Lord Denning in Regina v. Commr. of Police of the Metropolis, Ex parte Blackbkn (1968) 2 WLR 1204, extracted below would amply sum up the above situation.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

Exposed as we are to be winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter I hand. Silence is not an option when things are ill done.

16. But when should silence cease to remain an option? Where is the line to be drawn? A contemptuous action is punishable on the touchstone of being a wrong to the public as distinguished from the harm caused to the individual Judge. Public confidence in the judicial system is indispensable. Its erosion is fatal. Of course, Judges by their own conduct, action and performance of duties must earn and enjoy the public confidence and not by the application of the rule of contempt. Criticism could be of the underlying principle of a judicial verdict or its rationale or reasoning and even its correctness. Criticism could be of the conduct of an individual Judge or a group of Judges. Whichever manner the criticism is made it must be dignified in language and content because crude expressions or manifestations are more capable of identification of the alleged wrong with the system as a whole. Motives, personal interest, bias, pre-disposition etc. cannot be permitted to be attributed as being responsible for the judicial verdict, unless, of course, the same can be established as an existing fact. It is the above category of acts or publications that would fall within the prohibited degree warranting action in contempt law.

17. A word on the defence of truth in a contempt proceeding. Statutory recognition of truth as a defence brought about by the amendment to Section 13 of the Contempt of Courts Act, 1971 (by Act VI of 2006), though hedged in by the requirement of being bona fide and necessary in public interest, has possibly come as an answer to some over zealous and obstinate judicial responses though by and large the Indian judiciary has always taken note of truth or the correctness of the major premise of a journalistic exercise reflecting opinions and conclusions pertaining to the judicial system. The near consistent view that an expression of journalistic opinion, if made bona fide and fairly and designed for public good must receive due respect and tolerance is amply testimony of the perception of the Courts in the matter. The long discourse laid above would find its roots in several judicial pronouncements including those cited at the Bar in the present case, the core of which will now be required to be noticed.

18. The view expressed by Lord Atkin in Andre Paul Terence Ambard v. The Attorney General of Trinidad and Tobago AIR 1936 Privy Council 141 has been unflinchingly understood till date to be an expression of the correct approach of the Courts exercising contempt jurisdiction. An article published in the Port of Spain Gazette under the title ‘Human Element’ and recording the views of the author with regard to the adequacy of the sentences passed by two learned Judges following convictions in two criminal trials in somewhat similar circumstances was required to be considered in the domain of the contempt law. The observations of Lord Atkin which have been repeatedly quoted in numerous pronouncements, till date, as laying down the correct approach must also be noted in the present case.

But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing 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 wrongheaded are permitted to err therein : provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.

19. The above view of Lord Atkin found manifestation, though in a different form, in Debi Prasad Sharma and Ors. v. Emperor . In the aforesaid case the Privy Council was required to give its views on the question whether the Editor and Publisher of Hindustan Times had committed any contempt by expressing their opinion on the correctness of an administrative circular claimed to have been issued by the Chief Justice of the Allahabad High Court calling upon judicial officers to contribute to the war efforts. The following observations contained in the judgment of Lord Atkin would be relevant for formulating our views in the present matter.

The cases of contempt which consists of “scandalizing the Court itself are fortunately rare, and require to be treated with must discretion. In 1899 this Board pronounced proceedings for this species of contempt to be obsolete in this country, though surviving in other parts of the Empire : but they added it is a weapon to be used sparingly and always with reference to the administration of justice, 1899 AC 549.

If the facts were as alleged they admitted of criticism. No doubt it is galling for any judicial personage to be criticized publicly as having done something outside his judicial proceedings which was ill-advised or indiscreet. But judicial personages can afford not to be too sensitive. A simple denial in public of the alleged request would at once have allayed the trouble. If a Judge is defamed in such a way as not to affect the administration of justice he has the ordinary remedies for defamation if he should feel impelled to use them. Their Lordships cannot accept the view taken by the Court as stated above of the meaning of the comment : the words do not support the innuendo. In the opinion of their Lordships, the proceedings in contempt were misconceived, and the appellants were not guilty of the contempt alleged.

20. The next case which must receive our attention is Bathina Ramakrishna Reddy v. State of Madras . In the said case the publisher and managing editor of a Telegu Weekly i.e. ‘Praja Rajyam’ published an article under the caption “Is the Sub-Magistrate, Kowur corrupt?” In the said article it was stated that one Surya Narayan Murthi, Sub-Magistrate of Kowur, was a known bribe taker who was also in the habit of harassing the litigants in different ways. In the article in question it was also mentioned that there was a broker through whom negotiations were carried out. Several specific instances of cases tried by the officer were cited in which, according to the article, the judicial officer had taken bribes.

One of the contentions advanced in support of the defence was that even assuming the views expressed to be correct, at best, a penal offence covered by the specific provisions of the Indian Penal Code was made out and therefore no action in contempt would lie.

The Apex Court in paragraph 11 of the judgment did not accept the contention advanced and took the view that:

A libellous reflection upon the conduct of a Judge in respect of his judicial duties may certainly come under Section 499, Penal Code, and it may be open to the Judge to take steps against the libeler in the ordinary way for vindication of his character and personal dignity as a Judge; but such libel may or may not amount to contempt of Court.

Continuing the Apex Court took the further view that when the act of defaming a Judge has the effect of obstructing or interfering 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 attempting to undermine the authority of the Courts which exists for public good. On the facts of the case the Apex Court came to the conclusion that the article in question was an attack on the integrity and honesty of the judicial officer without there being any basis for the same and therefore the appellant cannot be said to have acted bonafide and with reasonable care and caution. The charge of contempt as well as the punishment imposed was, therefore, upheld.

21. The next case that we consider it necessary to refer to is the decision rendered by the Apex Court in Brahmaprakash Sharma and Ors. v. State of Uttar Pradesh . The facts of the said case must be noted in brief. On 20th April 1949 the Executive Committee of the District Bar Association at Muzaffarnagar (U.P.) adopted certain resolutions regarding the conduct of two judicial officers functioning at Muzaffarnagar at the relevant point of time. The said resolutions were to the effect that the officers in question were thoroughly incompetent in law; they do not inspire confidence in the judicial work; the judicial orders passed by them are based on wrong facts and the officers have an overbearing and discourteous attitude to the members of the Bar as well as the litigant public. By another resolution of the Executive Committee it was resolved that copies of the said resolution be sent to the Premier of the State, the Chief Secretary as well as the District Magistrate. The reasons for the eventual conclusion reached by the Apex Court to drop the contempt proceedings against the alleged wrong doers need not detain the Court. What would be significant is the view expressed with regard to the correct judicial approach in such matters. The said views being contained in paragraphs 11 and 12 of the judgment, the relevant extracts therefrom are quoted herein below:

(11) It seems, therefore, that there are two primary considerations which should weigh with the court when it is called upon to exercise the summary powers in cases of contempt committed by ‘scandalising’ the court itself. In the first place, the reflection on the conduct or character of a judge in reference to the discharge of his judicial duties, would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice. It is not by stifling criticism that confidence in courts can be created….

(12) In the second place, when attacks or comments are made on a Judge or Judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the Judge and what amounts really to contempt of court. The fact that a statement is defamatory so far as the Judge is concerned does not necessarily make it a contempt.

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 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 an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court’s administration of justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well-established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to, interfere with the proper administration of law.

22. Several other judgments, details of which need not be noted by us in the present order, have been cited to establish the proposition that a charge of criminal contempt has to be established on the basis of proof beyond reasonable doubt as in a criminal pro-eeding. We have no doubt that the aforesaid proposition sought to be established by the learned Counsel for the respondents is correct in law.

23. In the decision the Apex Court was answering a Presidential reference made under Article 143(1) of the Constitution. The reference was necessitated by a somewhat unusual situation in which all the Judges of the Allahabad High Court (28 in number) set in a Full Bench to hear the validity of a notice issued by the State Legislature to two of the Hon’ble Judge. appear before the House on an allegation commission of breach of privilege of the House by the said two Hon’ble Judges by entertaining a writ petition filed by one Keshav Singh challenging the decision of the House holding that he had committed contempt of the House. The illuminating views expressed by Justice Gajendragadkar in the said judge on all other points being not necessary are not being noticed in the present order save and except what is being reproduced herein below:

We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.

24. The decision of the Apex Court in Perspective Publications (P) Ltd. and Ors. v. The State of Maharashtra , must be noticed in some details as the facts of the said case have a striking resemblance to those before us.

A suit filed by one Thackersey against a weekly newspaper ‘Blitz’ and its editor claiming Rs. 3 lacs as damages for libel was taken up for day to day hearing by Justice Tarkunde of the Bombay High Court in June 1964. The delivery of marathan judgment (as it subsequently came to be known) started on January 19,1965 and completed on February 12, 1965. The suit was decreed and a sum of Rs. 3,00,000/- was awarded as damage. On April 24,1965 an article was published in Prajatantra, a Gujrati paper under the caption “Story of a Loan and Blitz Thackersey Libel Case”. In the article it was mentioned that on 10th of December, 1964, a loan facility of Rs. 10 lacs was made available by the Bank of India to one Khare-Tarkunde Private Limited of Nagpur in which company the close relationships of Justice Tarkunde were partners [(sic) Directors]. The poor financial standing of the company was also highlighted in the article besides the fact that Thackersey was a director of the Bank of India at the relevant point of time and one of the directors of the guarantor of the loan i.e. the New India Assurance Company Ltd. was a senior partner of the solicitors for Thackersey in the suit in question. The Apex Court, on the reasons and grounds assigned, upheld the conclusion reached by the Bombay High Court that the publication of the article in question amounted to commission of contempt. What would be of significance to us, insofar as the aforesaid decision is concerned, is the view expressed by the Apex Court that in the facts before it though the imputations cast and insinuations made were in respect of an individual Judge, the same would amount to commission of contempt, a conclusion, inter alia, recorded on the basis that the Hon’ble Judge involved had nothing to do with the company which had received the loan. The re-statement of the principles for exercise of the contempt power made in paragraph 17 of the judgment would also be relevant to the present case the same are, therefore, extracted herein below:

(1) It will not be right to say that committals for contempt scandalizing the court have become obsolete.

(2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice.

(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

(4) A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the court.

The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by his court. It is only in the latter case that it 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 Mukherjee J. (as he then was) (Brahma 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.

25. Another decision that will be required to be noticed for the purpose of the present case is the suo motu action taken by the Apex Court for commission of contempt by one S. Mulgaokar for a publication dated 13th of December, 1977 in the Indian Express newspaper. The article in question pertained to a letter sent by the Chief Justice of India to the Chief Justices of various High Courts suggesting the drafting of a code of ethics for the Judges. The publication in question reported that the letter of the Chief Justice of India had evoked so adverse criticism that even the Supreme Court Judges who were associated with the preparation of the draft code had disowned it. A letter was sent by the Registrar of the Supreme Court to the Editor of the newspaper pointing out that the Judges of the Supreme Court had nothing to do with the matter and therefore the question of disowning the proposed code by any Judge did not arise. The Editor of the newspaper instead of publishing any correction, offered to publish the whole material in his possession and in fact went on to put on record the disappointing performance of the Supreme Court Judges, which in his opinion was on account of the fact that the Supreme Court was packed with “pliant and submissive Judges except for a few” by the then Prime Minister of the country. Though the three member Bench which heard the case was of the unanimous opinion that the matter should not be proceeded with any further, the illuminations available in the said judgment [(1978) 3 SCC 339] cannot but be noticed by the Court in its quest to understand the correct principles of law.

26. The following observations of Chief Justice Beg, as contained in paragraphs 15 and 16 of the judgment, must, therefore, be extracted below:

15. National interest requires that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisa spirit or tactics. This should be a part of national ethics. Newspapers, in particular, ought to observe such a rule imbued with what Montesquieu considered essential for a healthy democracy: the spirit of “virtue”. They should, if they are interested in promoting national welfare and progress, support proposals for framing correct rules of ethics for every class of office-holder and citizen in the country. And, the judiciary must, in its actions and thoughts and pronouncements, hold aloft the values and the spirit of justice and truth enshrined in the Constitution and soar high above all other lower loyalties and alignments if it is to be truly independent.

16. The judiciary cannot be immune from criticism. But, when that criticism is based on obvious distortion or gross mis-statement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it cannot be ignored. I am not one of those who think that an action for contempt of court, which is discretionary, should be frequently or lightly taken. But, at the same time, 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. It may be better in many cases for the judiciary to adopt a magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement. But, when there appears some scheme and design to bring about results which must damage confidence in our judicial system and demoralize Judges of the highest Court by making malicious attacks, anyone interested in maintaining high standards of fearless, impartial, and unbending justice will feel perturbed. I sincerely hope that my own undisguised perturbation at what has been taking place recently is unnecessary. One may be able to live in a world of yogic detachment when unjustified abuses are hurled at one’s self personally, but, when the question is of injury to an institution, such as the highest Court of justice in the land, one cannot overlook its effects upon national honour and prestige in the comity of nations. Indeed, it becomes a matter deserving consideration of all serious-minded people who are interested in seeing that democracy does not founder or fail in our country. If fearless and impartial courts of justice are the bulwark of a healthy democracy, confidence in them cannot be permitted to be impaired by malicious attacks upon them. However, as we have not proceeded further in this case, I do not think that it would be fair to characterize anything written or said in the Indian Express as really malicious or ill-intentioned and I do not do so. We have recorded no decision on that although the possible constructions on what was written there have been indicated above.

27. Justice Krishna Iyer who wrote a separate judgment, laid down six broad guidelines in the matter. The first rule, according to the learned Judge, is “wise economy of use of the contempt power”. The second is the necessity to harmonise the constitutional values of free criticism with the need for a fearless judiciary. The third principle laid down is to “avoid confusion between personal protection of a libeled Judge and prevention of obstruction of public justice and the community’s confidence in that great process”. The fourth principle laid down emphasizes the realization of the role of the Fourth Estate in a democratic process while by the fifth principle laid down a reminder was issued to Judges not to be hypersensitive even where distortions and criticisms are erroneous. It is only upon an evaluation of the totality of the circumstances, if the Court considers the attack offensive, intimidatory and malicious beyond condonable limits that the contempt power must come in to maintain the supremacy of the Rule of Law. This is the sixth and the last principle laid down.

28. The decision of the Apex Court in P. N. Duda v. P. Shiv Shankar and Ors. must be noticed by us. One Shri P. Shiv Shankar, a Judge of the Andra Pradesh High Court, who resigned to become the Law Minister of the Union, delivered a speech to the Bar Council of Hydderabad on 28th November, 1987. In the course of the said speech, Shri P. Shiv Shankar had commented on the class composition of the Judges of the Supreme Court; accused the Supreme Court of being partial towards economically affluent sections of the society and further stated that the said weakness found reflection in the judgments delivered by the Supreme Court in matters relating to Zamindary abolition, abolition of privy purses and the payment of compensation for nationalization of Banks. The person concerned i.e. Shri P. Shiv Shankar also commented that:

Anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court.

The Apex Court took note of the available precedents on the point, both foreign and Indian, and the works of celebrated authors and recorded its opinion that what was sought to be conveyed by the Hon’ble Minister did not amount to bringing the administration of justice into disrepute so as to justify resort to contempt power. However, the views expressed should have been expressed in more polite and dignified language. As paragraph 17 of the aforesaid judgment contains more insights than what has been noticed by us till now, the same may be usefully extracted below:

17. It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife must be above suspicion, per Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court . It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalizing remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remedyless evils which Courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the Judges and lawyers must make about themselves. We must turn the search light inward. At the same time we cannot be oblivious of the attempts made to decry or denigrate the judicial process, if it is seriously done. This question was examined in Rama Dayal Markarha v. State of Madhya Pradesh where it was held that 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 pre-disposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused, or 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. Criticism of the Judges would attract greater attention than others and such criticism sometime interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into a ridicule or hampers administration of justice. After all it cannot be denied that pre-disposition or subtle prejudice or unconscious prejudice or what in Indian language is called “Sanskar” are inarticulate major premises in decision making process. That element in the decision process cannot be denied, it should be taken note of.

29. One further judgment of the Apex Court i.e. in Rajendra Sail v. M.P. High Court Bar Association , must be noticed by us before we proceed to the next part of the present exercise i.e. to understand the purport of the allegedly offending news item and, thereafter, to the core question involved i.e. whether the respondents in the present case have committed contempt.

30. A news report was published in a news-” paper ‘Hitavada’ on 4.7.1998 under the caption “Sail terms High decision in Niyagi murder case as rubbish”. The news report was based on a speech delivered by one Rajendra Sail in a meeting held to commemorate the death of Shankar Guha Niyagi and the interview given by Sail soon after the speech to one Ravi Pandey, the correspondent of the newspaper. In a news report it was stated that the decision of the High Court was rubbish and that a Judge who was on the verge of retirement should not have been entrusted with such a crucial case. The news report also stated that the Judges hearing cases were prejudiced and pre-disposed and that one of the Judges had been bribed and further that the said Judge possessed properties disproportionate to his income. In defence, Rajendra Sail denied the correctness of the news item saying that in the speech delivered in the meeting he had attempted to bona fide analyse the judgment without bringing the judiciary to disrepute and further that he had not given any interview to the correspondent of the newspaper. The High Court of Madhya Pradesh which initially heard the matter summoned the audio and video recording of the speech delivered by Rajendra Sail and found Rajendra Sail guilty of commission of contempt. In appeal, the Supreme Court upheld the view taken by the High Court after an exhaustive consideration of the available case laws on the subject. The Apex Court having laid down the principles for exercise of power of contempt in paragraphs 11,42,43 and 44 of the judgment it will be necessary to extract the aforesaid paragraphs herein below to enable us to proceed correctly in the matter under consideration.

11. It has been repeatedly held that the rule of law is the foundation of democratic society. The judiciary is the guardian of the rule of law. The confidence, which the people repose in the courts of justice, cannot be allowed to be tarnished, diminished or wiped out by the contemptuous behaviour of any person. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. 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. It is for the purpose that the courts are entrusted with extraordinary powers of punishing for contempt of court those, who indulge in acts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalizing 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 scandalized, but to uphold the majesty of the law and of the administration of justice.

42. The issue as to whether the alleged statements amount to contempt or not does not present any difficulty in the present case. If the conclusions reached by the High Court are correct there can be little doubt that it is serious case of scandalizing the Court and not a case of fair criticism of a judgment. Undoubtedly, judgments are open to criticism. No criticism of a judgment, however vigorous, can amount to contempt of court, provided it is kept within the limits of reasonable courtesy and good faith. Fair and reasonable criticism of judgment which is a public document or which is a public act of a judge concerned with administration of justice would constitute contempt. 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.

43. 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. But when it is said that the judge had a predisposition to acquit the accused because he has already resolved to acquit them or has a bias or has been bribed or attributing such motives, lack of dispassionate and objective approach and analysis and prejudging the issues, the comments that a judge about to retire is available for sale, that an enquiry will be conducted as regards the conduct of the judge who delivered the judgment as he is to retire within a month and a wild allegation that judiciary has no guts, no honesty and is not powerful enough to punish wealthy people, would bring administration of justice into ridicule and disrepute. The speech that the judgment is rubbish and deserves to be thrown in a dustbin cannot be said to be fair criticism of judgment. These comments have transgressed the limits of fair and bonafide criticism and have a clear tendency to affect the dignity and prestige of the judiciary. It has a tendency to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge and to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice, it is also likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.

44. When there is danger of grave mischief is done in the matter or 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 reposes in the courts of law as courts of justice, the criticism would cease to be fair and reasonable criticism but would scandalize courts and substantially interfere with administration of justice. Having perused the record, we are unable to accept the contention urged on behalf of Mr. Rajendra Sail that on facts the conclusions arrived at by the High Court are not sustainable. Once this conclusion is reached, clearly the publication amounts to a gross contempt of court. It has serious tendency to undermine the confidence of the society in the administration.

31. Before setting course to reach the necessary determination required in the present case i.e. whether the respondents are guilty of commission of contempt, the purport and effect of the allegedly offending news item on the average reader and the impact of such an impression on the system of administration of justice must be determined.

The news item is under the caption “Even Hon’ble Judge is in Himanta Biswa’s grip”. The news item in question recites that Himanta Biswa Sarma, a powerful Minister of the State, was involved in two police cases registered in the Panbazar and Chandmari Police Stations of Guwahati for commission of offences under the Arms Act, Unlawful Activities (Prevention) Act as well as for offences under the TADA. According to the news item, the records of investigation including the case diaries of the two cases became mysteriously unavailable. Though the trial court ordered for reconstruction of the records nothing in this regard was done and instead the powerful Minister had moved the High Court seeking his discharge/acquittal from the two cases. However, the High Court did not take any interest in the matter. The news item further goes to recite that one Bhuban Ggogoi had filed a PIL in the High Court in this regard which eventually came up for hearing before a Division Bench consisting of Justice D. Biswas and Justice P.G. Agarwal on 01.7.2004. According to the news item while Justice Biswas was inclined to treat the matter as a serious one Justice Agarwal thought otherwise. Eventually, the judgment was delivered after 90 days of the completion of hearing. A day after the delivery of the judgment, Justice Agarwal left for Singapore on a pleasure trip, the source of funds for which trip remained a mystery. The news item also states that during the pendency of the PIL, 20 bighas of Govt. land was allotted to one Jerico Detergent Private Limited owned by Justice Agarwal’s daughter and that the said allotment was made for a sum of Rs. 50,000/ – per bigha though the market value of the land would be several crores of rupees. In the news item it was further stated that a son of Justice Agarwal had also developed intimacy with the Minister concerned and he had obtained a wine shop licence. The news item closes by saying that in a situation where the common citizen is being harassed by the police, Army and even by the Courts for trivial acts like sheltering an ULFA cadre for a night the undue favour shown to Sri Himanta Biswa Sarma in the PIL has raised eye brows.

32. A reading of the aforesaid news item, in our considered view, conveys the impression that in rejecting the PIL filed by Bhuban Gogoi Justice Agarwal had placed a dominant role and that Justice Agarwal left for Singapore on the next day, possibly, on funds made available by the Minister Himanta Biswa Sarma. The news item also, according to us, is capable of creating an impression that the judgment in the PIL was delivered on account of the land allotment made to M/s. Jerico Detergent Private Limited in which Justice Agarwal’s daughter and son-in-law had interest and further that Justice Agarwal’s son had obtained a liquor shop licence at the instance of the Minister.

33. If our understanding of the purport and affect of the news item, as stated above, is correct there can be no manner of doubt that the news item in question though casts a reflection on an individual Judge i.e. Justice Agarwal, the same affects or has the potential of affecting the credibility of the institution as a whole. Judges like Caesar’s wife must be above suspicion (Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court . Confidence in the integrity, honesty and impartiality of a Judge is a necessary adjunct of the confidence that the judicial system must enjoy. Any allegation to the contrary carries with it the potential of eroding public faith in the judicial system. The maker of such an al- legation, therefore, has to establish that he had reasonable materials and/or information in his possession on consideration of which he felt that it would be justified, in public interest, to inform the public of all that had happened by means of the news item in question. This, according to us, is the crucial and core test that has to be applied by us to determine the culpability of the respondents, if any. Judged by application of the aforesaid yardstick, some of the statements appearing in the news item and the affidavits in defence i.e. the difference of opinion between the two judges as to whether adjournment should be granted; the justification for the refusal of adjournment; the dominant role attributed to Justice Agarwal in the course of the court proceedings and such other matters would hardly be relevant to require any notice by us. The essence of the issue, in our considered view, revolves around the question as to whether the impression/opinion sought to be conveyed by the news item, as can be legitimately inferred, i.e. that the judgment in the PIL was passed on account of extraneous consideration can be sustained on the basis of relevant materials available to the respondents so as to confer the required degree of legitimacy and protection to the news item in question. Specific scrutiny of the Court will be required in respect of three species of extraneous considerations that find explicit manifestation in the news item in question, namely, (1) grant of liquor licence to the son of Justice Agarwal, (2) allotment of land to Jerico Detergent Private Limited, and (3) foreign trip of Justice Agarwal.

34. It is not the case of the respondents before us that they had any material in their possession which would go to show that Justice Agarwal’s foreign visit was sponsored by any person other than the learned Judge himself. It is also not the case of the respondents that any such material exist as on date. The Court, therefore, will have to proceed on the basis that the withdrawal of the sentence appearing in the news item with regard to Justice Agarwal’s foreign visit has been made as the said statement is false and untrue. The second sentence that has been sought to be withdrawn i.e. regarding the liquor licence obtained by Justice Agarwal’s son has, in fact, been admitted to be incorrect by the respondents themselves who admit that the said licence was granted even before Justice Agarwal had become a Judge of the High Court. A third offending sentence i.e. that even the High Court is in the grip of Minister Himanta Biswa Sarma which, in fact, is the caption of the news item, has also been offered to be withdrawn. The withdrawal of the aforesaid third sentence, according to us, is a natural corollary of the withdrawal of the other two sentences i.e. with regard to Justice Agarwal’s foreign visit and the liquor licence obtained by his son. The above facts, according to us, amply demonstrate that imputations have been made and aspersions have been cast on the integrity of the learned Judge on the basis of at least two facts stated in the news item in question which facts have not been demonstrated before us to be based on any relevant and reliable material available to the respondents at the time of publication of the news item or even thereafter. If a Judge is to deliver a judgment in consideration of a liquor licence being granted to his son and thereafter he had gone on a foreign trip sponsored, possibly, by the beneficiary of the judgment, the impression of the average reader of the newspaper insofar as the judicial system is concerned can hardly be complementary so as to inspire confidence and faith in the system.

35. The respondents have tendered their apology for publication of three sentences in the news item including those relating to Justice Agarwal’s foreign trip and Justice Agarwal’s son obtaining a liquor licence as noted above. A little divergence between the apology expressed in the supporting affidavit dated 4.1.2008 and the clarificatory news item dated 27.11.2007 has already been noticed by us. While in the clarificatory news item dated 27.11.2007 the sentences as a whole are sought to be withdrawn and the regret expressed is unconditional, in the affidavit dated 4.1.2008 the regret is only for the intemperate and undignified language used in publishing the news item. We could have, but we do not propose to, hold the aforesaid facts against the respondents. We could have also taken into account the fact that the withdrawal of the three sentences by the clarificatory news item dated 27.11.2007 was made after nearly two years of the publication of the allegedly offending news item on 10thh of August 2005 and the possible cementing role that lapse of time has on formulation of negative public opinion. Damages caused to reputation of individuals and institutions have a tendency to acquire permanence with the passage of time. However, an apology tendered, by its very nature, can only after the occurrence of the incident. In the present case as the respondents have tendered unqualified apology for the three sentences appearing in the allegedly offending news item we are of the view that, though somewhat reluctantly, the cause of justice would be better advanced if we accept the apology tendered with a note of caution to the respondents to be careful in future.

36. This will bring the Court to a consideration of the part of the news item relating to land allotment. The respondents stick by what has been published by contending that such allotment is a matter of Govt. record which records have been placed before the Court. In this regard we had requested the learned Government Advocate to make available to us the records of the land allotment in question. Accordingly, File No. KRS 164/2004 maintained in the office of the Deputy Commissioner, Kamrup and a second file i.e. KSS 708/2004 maintained in the Revenue Department have been made available to us. A scrutiny of the aforesaid two files would go to show that after the judgment in the PIL in question i.e. PIL No. 16 of 2004 was kept reserved on 1.7.2004, an application dated 4.8.2004 was submitted by one Shweta Agarwal for allotment of 40/45 bighas of land preferably in North Guwahati, on payment of requisite premium, to enable Jerico Detergent Private Limited to establish a low ash metallurgical Coke Industry as a part of the company’s expansion/diversification plans. Shweta Agarwal, as evident from the documents enclosed to the affidavit of the respondent, is the daughter-in-law of Justice Agarwal and a director of Jerico Detergent Private Limited. The attention that this application received and the speed at which it was processed cannot but be noticed by us. The Circle Officer, North Guwahati, to whom the matter was endorsed for due verification and report had admitted an almost immediate report on the availibility of a plot of land measuring 40 bighas 4 kathas 2 lechas in village Nomalijalah. The land advisory committee acted equally promptly in the matter and after completion of all formalities the Deputy Commissioner submitted his proposal recommending allotment of land measuring 40 bighas covered by Dag No. 154 under village Nomalijalah, Mouza Sendurigopha in favour of M/s Jerico Detergent Private Limited. This was on 29.9.2004. The State Government, however, directed for refixing of the land value which was earlier fixed at Rs. 43,084.00 per bigha. Thereafter, the file was re-submitted with a revised land value of Rs. 50,000.00 per bigha on which the departmental Minister granted his approval, though, in respect of 20 bighas of land. Thereafter, on 20th of January 2005 the formal settlement order for 20 bighas of land covered by dag No. 154 of village Nomalijalah, mouza Sendurigopha was issued subject to payment of premium at the rate of 150% of the land value which was fixed at Rs. 50,000.00 per bigha.

37. The materials placed before the Court by the respondents along with their affidavits, particularly the authenticated documents showing the shareholding of M/s Jerico Detergent Private Limited issued by the Registrar of Companies, Shillong, would go to show that promoters and some of the directors of the company includes the son and daughter-in-law and other close relatives of Justice Agarwal. Justice Agarwal himself is/was holding 18,000 shares in the company valued at Rs. 1.80 lacs.

38. Whether at the relevant point of time Justice Agarwal was aware of the application filed by Jerico Detergent Private Limited for allotment of land is a fact that is not before us. The observation of Lord Denning in Regina v. Commr. of Police of the Metropolis, Ex parte Blackburn (1968) 2 WLR 1204, that the maker of an allegation must remember that the judge against whom it is directed cannot reply to the criticism levelled would be appropriate to be recalled at this stage. Even otherwise no material has been laid before us to show that the allotment of the land was at the instance of Minister Himanta Biswa Sarma or that the respondents had in their possession any other relevant material which could throw some light on the existence of a live/reasonable link between the delivery of the judgment in the PIL and the allotment of the land. The connection between the two that has been sought to be built in the news item in question could have been accepted by us to be bona fide only in the event relevant materials, capable of sustaining such a bonafide belief or opinion, had been placed before us. The respondents have not so acted. On the basis of the said finding recorded by us it is possible for us to hold the respondents guilty of commission of contempt. However, we do not propose to do that. The respondents, in the affidavit filed, have repeatedly stated that the facts surrounding the allotment of land were published by them in public interest. The fact of allotment of land to Jerico Detergent Private Limited; the proximity of time between the proceedings in the PIL and the process of allotment of land; the holding of shares in Jerico Detergent Private Limited by Justice Agarwal as also the holdings of other members of the learned Judge’s family are all facts established by the records placed before us. Even holding that Justice Agarwal had no knowledge of the making of the application, a conclusion that we must reach at least for the time being on the materials available, we are of the view that in the present case whether the respondents could have reasonably and bonafide entertained the belief of an acceptable connection between the judgment in the PIL and the allotment of land is an issue of fact on which the respondents are entitled to the benefit of our reasonable doubt.

39. Before parting with the record, we would like to observe that in view of the circumstances surrounding the allotment of land to Jerico Detergent Private Limited and the close proximity of the process of allotment with the judgment delivered in PIL No. 16 of 2004 we had seriously debated as to whether we should suo motu re-open the proceedings in PIL No. 16 of 2004. After due consideration we have thought it appropriate to exercise our restraint in the matter and leave the same to be determined in an appropriate manner and at the appropriate time as and when an approach is made to this Court, if at all. Similarly, we had also debated as to whether the allotment of land to Jerico Detergent Private Limited should be re-opened by us on the authority of the judgment of the Apex Court in Tarak Singh and Anr. v. Jyoti Basu and Ors. cited by the respondents. For the same reason as alluded to earlier we have decided to exercise our restraint in the matter particularly in view of the fact that in Tarak Singh (supra) the approach to the Apex Court was in the form of a PIL specifically challenging the allotment of land to the concerned Judge. The above matter, therefore, in our considered view, should await an appropriate and adequate approach by any conscious citizen.

40. For all the aforesaid reasons, we are of the view that this suo motu contempt proceeding should be ordered to be closed in terms of our directions and conclusions recorded above. We order accordingly.