In Re: P.C. Sen, Chief Minister Of … vs Unknown on 15 March, 1966

ORDER

B.N. Banerjee, J.

1. In this Rule, P. C. Sen, the Chief Minister of West Bengal, stands charged with exhibition of contumacious conduct towards this Court, under circumstance hereinafter stated.

2. On November 18, 1965, the Governor of West Bengal made an order known as “West Bengal Milk Products Control Order 1965”, in exercise of the powers under Sub-rules (2) and (3) of

Rule 125 of the Defence of India Rules 1962. The declared object of the order was that in the opinion of the Governor it was necessary and expedient to regulate the manufacture of milk
products (meaning thereby Chhana, Kheer and weets having as an ingredient Chhana or Kheer or both) and increase supplies of milk in the fluid form, a commodity essential to the life of the community. The Control Order was made applicable to Calcutta, areas comprised in certain specified municipalities and Chandernagore. Power was reserved to make the Control Order applicable to other areas by notification. In a sense, the Control Order mentioned above was the successor of a previous Control Order known as the West Bengal Chhana Sweets Control Order 1965, which was condemned and quashed by this Court, on November 16, 1965.

3. On November 22, 1965, Sm. Kusum Kumari Ghosh and three others, carrying on business in co-partnership, under the name and style of Messrs. Ramlal Ghosh and Grandsons, as manufacturers of milk products, challenged the validity of the Milk Products Control Order and obtained a Rule against the State of West Bengal and the Secretary, Department of Animal Husbandry and Veterinary Services, being matter No. 369 of 1965. The Rule was made returnable on November 26, 1965. There was no interim injunction granted at the time when the Rule Nisi was issued but liberty was given to the petitioners, in Matter No. 369 of 1965, to renew the prayer for interim injunction on the returnable date.

4. It is necessary for me, at this stage, to refer to some of the grievances made by Sm. Kusum Kumari Ghosh and others, in their petition. Apart from the grievance that the impugned Control Order was illegal and unconstitutional, they made the following further griev-ances:

Para 10. “On November 16, 1965, *** Mr. Justice Banerjee delivered judgment condemning the said impugned West Bengal Chhana Sweets Control Order as an unreasonable piece of delegated legislation, made in arbitrary exercise of power under Rule 125 ***”

Para 18.”*** that the respon
dents mala fide and in complete and utter dis
regard of the said judgment and order of **
Mr. Justice Banerjee and without reading or con
sidering the same vindictively published the said
purported order in anger and hot haste being
recklessly careless as to the consequences thereof
and without giving their minds to the compre
hension and their wills to the discharge of their
duty towards the public. ***”

Para 19. “Your petitioners and other traders, who carried on business only in milk products meaning Chhana, Kheer and other sweets having as an ingredient Chhana, Kheer or both including Khoa Kheer, are facing complete ruin by reason of the total prohibition of their trade, commerce and intercourse.

Para 20. “*** that the said
impuged order has not only prohibited the trade,
commerce and intercourse of your petitioners
but also its movement. By the said impugned

order your petitioners are not only prohibited to manufacture etc. but also to supply or to transport the same and/or to deliver the same to various customers within and outside Calcutta as well intra the State of West Bengal or outside of West Bengal ***”

Your petitioners crave leave to refer tothe copy of the Jugantar dated November 21, 1965, wherein it would appear that about 500 to 600 maunds of Chhana and 500 maunds of Khoa Kheer comes to the Calcutta Market daily from Patna, Bhagalpore, Delhi and Kanpore which has also been stopped by reason of the said impugned order.

* * * *

Para 24. *** that there was
not nor there is any material before the Governor
of West Bengal to form the alleged opinion
and/or that the said purported opinion was not
reasonably formed. Your petitioners state that
the Government did not apply its mind and as
sucli the said impugned order is a colourable and
mala fide exercise of usurped power.

Para 32. *** that according
to the newspaper report in the Statesman, dated
November 20, 1965, there are about 8,000 shops
in Calcutta and 4,000 more in the neighbouring
areas. These employ 50,000 men. Presuming that
each employee maintains a family of 4, at least
200,000 people would be affected by the said
impugned order.”

On November 25, 1965, the day preceding the returnable date of the Rule, the Chief Minister broadcast a speech, in the Bengali language, from the Calcutta Station of the All India Radio, in justification of the West Bengal Milk Products Control Order. Extracts from the speech appeared in certain newspapers, including the Statesman and the Amrita Bazar Patrika, in their respective issues of November 26, 1965. The report of the speech as appearing in the Statesman is set out below:

”Discussing the implications of the West Bengal Milk Products Control Order and its impact on sweet shops, the Chief Minister Mr. P. C. Sen, said in a broadcast on Thursday night that there was no reason why the 39,000 workers employed in about 8,000 shops should be retrenched.

The new order, Mr. Sen said, should not affect these workers because most of the shops also sold salted edibles and dahi as well as sweets which did not require Chhana. The demand for such sweets would naturally increase and as such there was no reason for retrenchment. He gave an assurance that for preparation of such sweets permits for purchase of larger quantities of sugar would be given to the shops. The middlemen who brought Chhana to the Calcutta Market would find better employment in the transport of milk from rural producers to the chilling stations. The quantity of milk collected by the Government was increasing steadily and soon at least 1000 milk depots would be opened in and around Calcutta, he said. The Government would employ about 4,000 people in these depots and those workers who were retrenched from sweet shops would find alternative employment with the Government. Mr. Sen

said, that the new order would actually be a boon not only to consumers and producers but would also solve the problem of milk scarcity in the State. The Government had tor some time past been considering the imposition of total ban on the preparation of milk-based sweets. Since the ban on sandesh alone did not result in increasing the milk supply to the desired extent the ban on the other milk based sweets was found imperative. The total collection of 65,000 litres or even 100,000 litres was inadequate and as such serious attention was paid to the matter and it was decided to ban a number of milk products, Mr. Sen said. But it was permissible under the new order to prepare milk products like dahi, cream, icecream, chocolate, milk-powder, baby food, condensed milk etc.

All these items, he said would involve less than 15% of the total quantity of milk available and moreover there would be no wastage of valuable ingredients of milk in the preparation of these items. Tt was expected that as a result of the new order an additional quantity of about 134,000 litres of milk would be available for consumers.”

At the sitting of this Court on November 29, 1965, Mr. Sushil Kumar Biswas, Advocate, produced copies of the above mentioned issues of the Statesman and Amrita Bazar Patrika, drawing my attention to the substance of the speech as published in the said two newspapers and characterised the said speech as a contumacious one, inter alia, on the grounds that the speech

“(a) was likely to prejudice this Court and/or the public against the cause of the petitioners in Matter No. 369 of 1965 above referred to, and may compel or induce the petitioners to discontinue the action, or

(b) was likely to have the pernicious consequence of prejudicing the minds of the public against the petitioners in Matter No. 369 of 1965, or

(c) was likely to have the effect of mis-representing a piece of illegal and improper Control Order as a legal and a proper Control Order, before this Court had the opportunity of deciding the question in Matter No. 369 of 1965 and thereby deter other persons with similar cause of action from coming to the Court for relief.”

On the above grounds Mr. Biswas prayed that a Rule for contempt of this Court do issue against Mr. P. C. Sen, the Chief Minister. On consideration of the submissions made by Mr. Biswas, there was a Rule issued upon the Chief Minister of West Bengal, inter alia, in the following language:

“Let a Rule issue calling upon Mr. P. C. Sen, the Chief Minister of West Bengal, to show cause why he should not bo dealt with for contempt of Court on grounds as stated above and why other or further order or orders should not he made against him by this Court as may seem fit and proper.

This Rule is made returnable on the 23rd December, 1965, an which dale the alleged contemner is to appear before this Court either personally or through an Advocate at 10.30 a.m.

Let a copy of the petition in Matter No. 369 of 1965 and extracts of his speech as published in the Statesman and the Amrita Bazar Patrika he forwarded to he alleged contemner along with the Rule.”

On the returnable date, the learned Advocate General assisted by Mr. Sachin Chaudhuri and several other learned Counsel appeared to show cause on behalf of the Chief Minister, By arrangement amongst the Counsel, Mr. Chaudhuri took the lead for the day. He stated that the Chief Minister did not like to use any affidavit in this matter and that it was not necessary to give any direction as to affidavits. He look up a non-committal stand in respect of the speech by the Chief Minister, that is to say, he did not admit the correctness of the substance of the speech, as appearing in Press reports, nor did he show his preparedness to produce the full and correct text of the speech. According to Mr. Chaudhuri, it was necessary for this Court to prove the speech, if this Court wanted to proceed further. Without prejudice to his noncommittal stand, he contended that the text of the speech, as reported by the Press, did not amount to contempt of Court. He lastly contended that in the absence of an affidavit by the Registrar, Original Side of this Court, drawing my attention to the Press reports and stating that the speech was contumacious, the Rule should be recalled without more. Since the Rule had been issued suo motu and since I wanted assistance from the bar, at the hearing, I enquired of the learned Advocate General whether it would be possible for the State Government to engage an Advocate for the purpose. The learned Advocate General could not give me an assurance. I therefore called upon Mr. E. R. Meyer, a well-known Counsel of this Court, to act as amicus curiae. This he willingly agreed to do, in the best tradition of the bar.

5. Regard being had to the stand taken by Mr. Chaudhuri I passed the following order on that day:

“Mr. S. Choudhury appearing for the respondent Chief Minister states that the respondent does not like to use any affidavit showing cause. It is not, therefore, necessary for me to give directions as to affidavits. Let the matter be fixed for hearing on 10th January, 1966, top of the list irrespective of part heard. Let a subpoena, forthwith issue upon the Station Director, All India Radio, Calcutta (Akashbani, Kalikata) calling upon him personally to produce before this Court the record of the speech stated to have been broadcast by Mr. P. C. Sen, Chief Minister of West Bengal, on November 25, 1965 and all papers, documents and registers concerning or relating to that speech before this Court, on January 10, 1966, at 10-30 A.M.

Let it be recorded that Mr. E. R. Meyer Advocate, has, at my request, consented to act as amicus curiae in this matter. Let a copy of my order dated November 29, 1965 and the Rule issued by this Court be forthwith supplied to Mr. Meyer.”‘

After this Mr. Chaudhuri no more appeared in this matter, possibly because of his well-known preoccupation elsewhere.

6. On January 10, 1966 the Station Director, All India Radio, appeared before this Court, with records of the speech broadcast by the Chief Minister on November 25, 1965. The teamed Advocate General who appeared for the Chief Minister, took a preliminary objection to the effect that this Court had no jurisdiction to examine the Station Director and the records produced by him, for the purpose of having the speech brought on the record of this Rule. Thereupon, I made the following order on that day:

“The Station Director, All India Radio, is present in Court with the records of the speech, which is the subject matter of this Rule, pursuant to a subpoena issued by this Court. The learned Advocate General, appearing for the Chief Minister, the alleged contemner, takes the preliminary objection that this Court has no jurisdiction to examine the Station Director and his records for the purpose of having the speech, reported to have been broadcast by the Chief Minister over the All India Radio, on November 25, 1965, brought on the record of this Rule. He is also not in a position to state now whether the Chief Minister read from a written text or delivered an extempore speech. He also says

that the Chief Minister does not remember exactly the contents of his speech. In these circumstances, subject to such objection as may be taken by the learned Advocate General hereafter, I have decided to examine the Station Director to ascertain what speech, if any, of the Chief Minister was broadcast over the All India Radio, on November 25, 1965, touching upon the subject matter of this Rule. If ultimately I uphold the objection taken by the learned Advocate General, I may not take into consideration the text of the speech which may now be brought on the record. Further, I desire the learned Advocate General to inform this Court by 2 O’clock today, whether the Chief Minister did read out a prepared speech and also whether he will be willing to produce that writing before this Court, if the same is in his possession or office. I express this desire without prejudice to all just exceptions that the learned Advocate General may take.”

Thereafter, the Station Director of the All India Radio was examined as a witness. It appears from his evidence, that the Director of Information, Government of West Bengal, had asked the All India Radio office to send a recording equipment to the Assembly Chamber for the recording of a “talk” to he delivered by the Chief Minister on November 25, 1965. The requisition was complied with and the “talk” delivered by the Chief Minister was recorded on a portable tape recorder. The tape, on which the “talk” was recorded, was produced by him and was exhibited. He made known to this Court the names of the officers who had the talk recorded
and also of those who had the custody of the tape after the recording, at the time of the broadcast of the “talk” and thereafter. He also named the officers who had worked for the broadcasting of the “talk”. He produced the registers concerning the recording of the talk and its broadcasting.

7. The tape was played before me on a tape recorder and the full text of the Bengali

talk was taken down in shorthand, by two shorthand writers, loaned to this Court, at my request, by the Speaker of the West Bengal Legislative Assembly. What they took down, they transcribed in Bengali typed script and submitted copies thereof to this Court under my order, dated January 10, 1960, which I set out below:

“This Court has no shorthand writer in Bengali. Mr. S. Roy, one of the learned Counsel for the Chief Minister, agreed to convey my request to the Speaker, West Bengal Lelislative Assembly, for loan of a couple of stenographers, capable of taking down in shorthand the Bengali speech, said to have been delivered by the Chief Minister, and recorded on a tape, which is being played in this Court by an officer of he Calcutta Station of the All India Radio, under he supervision of the Station Director. This he did. Let it be recorded that the Speaker of the West Bengal Assembly has been kind enough to send a couple of shorthand writers in Bengal. They were sworn before this Court to take down the speech, as played on the tape recorder, in Bengali script, faithfully and carefully. This they have done. They are directed to submit to this Court three type-written copies of the speech by 10-30 A.M. to-morrow.”

I also examined the officers named by the Station Director, namely, Kumari Ratna Mukherjee, an Assistant Engineer, Sukumar Roy, a programme Executive, Mani Gopal Ghosh, a transmission Executive and Dilip Ghosh, an Announcer in Bengali. They corroborated the evidence of the Station Director, proved the tape on which the talk by the Chief Minister stood recorded and also the books and registers concerning the recording and the broadcasting of the talk as recorded on the tape.

8. At the sitting of this Court, on January 14, 1966, the learned Advocate General made the statement that the Chief Minister read out from a written text, when his speech was being recorded on the tape, which text, however, he could not trace and therefore pleaded his inability to produce. The learned Advocate General further stated that the Chief Minister did not also remember whether he read out the prepared text word by word or made certain alterations or additions here and there in course of his reading. I had the statements recorded in my order dated January 14, 1966.

9. On the same day, I examined as a witness, Mr. A.K. Mukherjee, Director of Information, Government of West Bengal, who had also been named by the Station Director, All India Radio. He deposed that the speech was “drafted” by the Secretary, Department of Animal Husbandry in the English language and the Bengali rendition thereof was clone by himself. Dr. Bhattacharjee and some of his staff. He further deposed that he made over a copy of the Bengali rendering of the speech to an All India Radio Officer. He admitted that the speech was correctly recorded on the tape.

10. The Bengali type-script of the taperecorded speech, as prepared by the Bengali Shorthand Writers mentioned hereinbefore, was translated into English by a Court Translator. The speech in Bengali and also the English

translation thereof were marked Ex. J. It is necessary for me to take into consideration certain passages from the speech, which I set out below:

“On November 18, 1965 last, the West
Bengal Milk Products Control Order was Pro
mulgated.”

* * * *

It is because the residents of the areas in which this order has been in force, found i! extremely difficult to procure milk that this order has had to be promulgated in those areas. In fact the whole or West Bengal suffers from acute scarcity of milk. Where as the daily per capita supply of milk in the Punjab is 17 ounces, in U. P. 7 ounces (and) in Behar 4 ounces, in West Bengal it is even less than 3 ounces per capita
* * * *

According to the Science relating to nutrition a person requires at least 8 ounces of milk per day. Hence to prepare any food with milk in our West Bengal is indeed, tantamount almost to a prime. It is because it became difficult to get hold of liquid milk in the city of Calcutta and the neighbouring urban areas that this control order has at present come into force only in those areas. If necessary, the Government will extend this control order by stages to other areas as well in due course.

It has been found that the supply of liquid milk has gone up in the areas in which the previous chhana made Sweets Control Order (“chhanajata mistannyadrabya Niyantran Adesh’. was promulgated. **** The quantity of milk collected from different sources in Calcutta increased to 2 lakhs and 61 thousand liters from 2 lakhs and 12 thousand litres. This volume of milk supply (how-ever), constitutes 41% of the total demand. This supply could have been augmented much more if powder milk could be obtained in sufficient quantity, from foreign countries. But in view of foreign exchange difficulties, the Government of India curtailed the import of powder milk and as a result thereof great inconvenience was felt. In the greater Calcutta areas, our total demand of milk at present is at least 6 lakhs and 30 thousand litres. Hence just now a big gap remains between the demand and the supply. Indeed for sometime past, the question of completely banning the preparation of sweets from milk products was in the contemplation of the Government. But they thought of doing it by stages. It was only when after promulgation of the order banning Sandesh only, it was found that it was not adequate for achievement of the main object

*** that special
importance was attached to the matter It was decided that the ban will nave to be imposed on all kinds of sweets whatsoever prepared with milk products–Chhana and khir. Under the new order, curd, cream, icecream, chocolate, powder milk, baby food, condensed milk etc. made from milk can be prepared. Only 15 per cent of the milk which is now available in liquid form is necessary for the preparation of these things. Moreover there will be no wastage of valuable nutritive contents of milk in the process of preparation of all these products. It is hoped that under this new control order at least an ad

ditional quantity of nearly 1 lakh 34 thousand
litres of liquid milk will be available to the citi
zens. ****
* * * *

The residents of Calcutta will now be in a
position to secure larger quantities of milk than
before from the owners of cows and buffaloes.

People living in other municipal areas will now
be able to get more milk than before from the
milkmen of their respective areas.

* * * *

The Government have considered the question of a few employees of sweetmeat establishments being thrown out of employment as a result of promulgation of this new order. There are about seven thousand sweetmeat shops in the city of Calcutta and the number of persons employed in them is nearly 35000, The number of sweetmeat shops in other towns is about 1000 and the number of persons employed in them is approximately 4000. Hence the (total) number of employees in all those sweetmeat establishments comes to about 39000. We should bear in mind that almost all these sweetmeat shops prepare salted (nonta) variety of edibles. ** Besides, curd is also sold by those shops which also sell various kinds of sweets that do not all require chhana or khir (for their preparation). The number of such sweets is not very small.

* ** *

As a result of the ban on sweets prepared with chhana and khir, the demand for other kinds of sweets will certainly go up and if the sweetmeat dealers so desire, they can be free to prepare those sweets in adequate quantities. Of course they wilt require more sugar, ata and flour. The Government considers that their reasonable demands can be met. If in spite of the increase in the demand for other sweets, a number of workers become unemployed, the Government is prepared to employ them in these depots.

* * * *

Those workers who had until recently been bringing milk and chhana to Calcutta will be able to supply from now on milk to the milk collection centres of the Government.

* * * *

The trouble taken by me to ascertain the exact text of the speech broadcast by the Chief Minister ultimately proved to be much ado about nothing because later on the learned Advocate General admitted that Ex. J was the full and correct text of the speech by the Chief Minister, which was broadcast over the All India Radio.

11. I need notice, at this stage, another admission made by the learned Advocate General. At first he was not prepared to admit that the Chief Minister was aware of the pendency of Matter No. 369 of 1965 (Sm. Kusum Kumari Ghosh v. The State of West Bengal) at the time when he broadcast the speech. But towards the close of his argument, the learned Advocate General made the admission that the Chief Minister has constructive knowledge of the pendency of the Rule. I had both the admissions recorded, by an order dated March 1, 1966, which I set out below:

“So that there may not be any misgiving or misunderstanding about the scope of the argu

ment advanced by the learned Advocate General on behalf of the respondent Chief Minister, let the two admissions made by the learned Advocate General, in course of his argument, he recorded, namely,

(a) that the Chief Minister delivered the speech, which is marked Ex. J, over the All India Radio on November 25, 1965;

(b) that although the Chief Minister might not have actual knowledge of the pendency of Matter No. 369 of 1965 Smt. Kusum Kumari Ghosh and Ors. v. State of West Bengal and Anr. on the day he delivered his speech, he had constructive knowledge of the same, because the Rule had already been served upon the State Government and the Secretary of the Department of Animal Husbandry.”

12. After the close of the argument by learned Advocate General on behalf of the Chief Minister and after the close of the address by Mr. Meyer as amicus curiae, Mr. Sankar Banerjee wanted to follow on the learned Advocate General. At that stage, Mr. Banerjee filed an affidavit, affirmed by the Chief Minister on March 4, 1966, the material portion of which reads as follows:

“Para 3. With reference to the said Rule I say that my radio speech dated November 25, 1965 which was approved by me was delivered in the circumstances stated hereunder.

* * * *

Para 5. Immediately upon the promulgation of the said order, however, I came to know that certain persons had started publicly propagating the view that far from achieving the said objects, the said Order will not only reduce the supply of fluid milk in the said area but also displace numerous persons and result in the unemployment ol many.

* * * *

Para 7. As the Chief Minister of the State, I came to know that the said propaganda had misled certain sections of the people.

* * * *

Para 8. Taking advantage of the said situation, attempts were being made to commence a political agitation against the State Government for having promulgated the said Order.

Para 9. In the circumstances and particularly with a view to preventing widespread agitation in connection with the said order, I thought it to be my duty as the Chief Minister of this State to forthwith explain to the people the policy underlying and the reasons for promulgating the said Order.

Para 10. Having regard to the circumstances stated herein above, I could think of no other expeditious or efficient manner for approaching the people than by talking to them over the Radio which in fact I did.

* * * *

Para 12. I had no intention whatsoever of either showing any disrespect to this Hon’ble Court or interfering in any manner with the due course of the administration of justice nor did I anticipate that my said speech could have any such effect.

Para 13. In any event, although I had come to know above the issue of the main rule in Matter No. 369 of 1965 by this Hon’ble Court

but I had no knowledge of the details. I was unaware about the allegations in the said petition at the time I made the said speech. It was never my intention to discuss any pending case or the merits thereof nor did I in fact do so.”

13. I have given a fairly long resume of the progress of he case, before this Court, in order to emphasise upon the marked in decision with which the case was argued by different learned counsel appearing for the Chief Minister. Mr. Sachin Choudhuri, appearing for the Chief Minister did not want to use any affidavit. He would admit nothing. He contended that the speech, if any, by the Chief Minister and text thereof would have to be proved by this Court, if this Court wanted to proceed further in the matter. The learned Advocate-General started similarly but at last made the two admissions, to which reference has already been made. Mr. Sankar Banerjee, who took charge of the matter last of all, conceded, in his fairness, that the decision not to use an affidavit explaining the circumstances in which the speech had been made was not right and tried to make amends by filing such an affidavit. Whether the conduct of the case in the above manner aggravated the contempt, if any, I shall consider later on.

14. Now, before I take up for consideration the arguments advanced by the learned Advocate-General, I need remind myself that the power of committal tor contempt must be wielded with the greatest of care and caution, should be exercised with the greatest of reluctance and the greatest of anxiety and only with the object of seeing that the dignity and authority of the Court be not impaired. At the same time, I need also remind myself that, in this country, Courts derive their authority from the Constitution which the people of this country have themselves adopted, enacted and given unto themselves and hold it in trust for the security and benefit of the people. The power that Judges are called upon to exercise is but the authority of the people themselves, vested by the Constitution, in Law Courts. Contempts against Law Courts are insults to the authority of the
p
eople and their Constitution and not to their humble agents, the Judges. Wherever there is a substantial exhibition of such contumacious conduct towards Law Courts, Judges must uphold the Constitution and the majesty of Courts. This view was stated by Willes, J. in Ex parte Fernandas, (1861) 10 CB (NS) 3 at p. 56, in most realistic language:

“I take leave to say that I am not conscious of the vulgar desire to elevate myself or the Court of which I may be a member, by grasping after a pre-eminence which does not belong to me; and that I will endeavour to be ever valiant in preserving and banding down those powers to do justice and to maintain truth, which for the common good, the law has entrusted to the Judges.”

This view has never been dissented from and never will be, so long as judges are alive of their position. It is with this remindedness that I
proceed to examine the arguments advanced by the learned Advocate-General.

15. According to the learned Advocate-General, a Judge is different from a juryman;

he has, by his training, no difficulty in putting out of his mind matters which are not evidence in the case. Since the Writ Petition by Smt. Kusum Kumari Ghosh and others against the Slate of West Bengal and another (Matter No. 369 of 1965) is not triable with the aid of jurors, the speech by the Chief Minister, even if prejudicial to the cause (which, however, he denied) would neither interfere nor tend to interfere with administration of justice by this Court nor influence the mind of the Judge. In support of this contention, he relied on the observations by Lord Parker, C. J. in Reg v. Duffy, (1950) 2 QB 188 and by Buckley, J. in Vine Products Ltd. v. Green, (1965) 3 WLR 791.

16. I shall presently deal with the two cases to show that they do not lay down an absolute or a universally accepted legal proposition. But before I do that, I need remind myself of what Cardozo, the great American Judge, said in his treatise on the Nature of the Judicial Process (1921) at p. 168. He did not doubt the grandeur of the conception which lifts (Judges) into the realm of pure reason, above and beyond the sweep of perturbing and defecting forces. But then he said, “Nonetheless, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights: we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in heir course, and pass the Judges by”. Similar view was expressed by Lawrence, C. J. in Peoples v. Wilson, (1872) 64 Ill 195: 16 Am. Rep. 528 quoted also in the Law of the Press by Hale pp. 329-33, from which I quote the following passage:

“A Court will, of course, endeavour to remain wholly uninfluenced by publications like that under consideration; but will the community believe that it is able to do so? Can it even be certain in regard to itself? Can men always be sure of their mental noise? A timid man might be influenced to yield, while a combative man would be driven in the opposite direction. Whether the actual influence is on one side or the other, so far as it is felt at all, it becomes dangerous to the administration of justice. Even if a court is happily composed of Judges of such firm and equal temper that they remain wholly uninfluenced in either direction. nevertheless a disturbing element has been thrown into the council chamber, which it is the wise policy of the law to exclude.

Regard it in whatever light we may, we cannot but consider the article in question as calculated to embarrass the administration of justice, whether it has in fact done so or not, and therefore as falling directly within the definition of punishable contempts, announced by this court in the case of Stuart v. People, (1842) 3 Scam. 395. It is a contempt, because, in a pending case of the gravest magnitude, it reflects upon the action of the court, impeaches its integrity, and seeks to intimidate it by the threat of popular clamour.

It may be said that, as long as the Court was conscious it had not been frightened from its propriety by the article in question, the wiser course would have been to pass it by in silence.

In my opinion Cardozo and Lawrence, C. J. present a realistically accurate picture of the mind of a Judge.

17. Be that as it may, I have now to see how far the cases relied upon by the learned Advocate-General take him. In Duffy’s case, 1950-2 QB 188 (supra) the day after one James Lawrence Nash was convicted of causing grievous bodily harm with intent and sentenced to five years imprisonment, an article appeared in a newspaper which, he alleged contained untrue statements about him and made him appear to be a man addicted to violence. The applicant intended to and subsequently did appeal, to the Court of Criminal Appeal, against both conviction and sentence. There was an application by Nash tor contempt of Court against the authors of the article. Although the case against the applicant had been disposed of at the time of the offending publication, Lord Parker C. J. held that a Criminal case remained sub judice at any rate until the time had expired within which notice of appeal to the Court of Criminal Appeal might be given or, in the event of such notice being given, had been heard and determined. Thus, the article was held to concern a sub judice matter. But that notwithstanding, his Lordship expressed the view that every libel on a person about to be tried was not necessarily contempt of Court; the applicant must show that some-tiling had been published which was clearly intended or was calculated to prejudice a trial which was pending. Examining the offending article in the background as stated above, his Lordship observed:

“Even if a judge who eventually sat on the appeal had seen the article in question and remembered its contents, it is inconceivable that he would be influenced consciously or unconsciously by it. A Judge is in a very different position to a juryman. Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case. This, indeed, happens daily to judges on assize. This is all the more so in the case of a member of the Criminal Appeal, who, in regard to an appeal against conviction is dealing almost entirely with points of law and who, in the case of an appeal against the sentence is considering whether or not the sentence is correct in principle.”

Although expressing the above opinion, his Lordship did not dissent from the following view expressed by Humphreys J. in Rex v. Davies, (1945) KB 435 about a Judge sitting in the Court of Criminal Appeal:

“He is a human being, and while I do not suggest that it is likely that any judge as the result of the information which had been improperly conveyed to him, would give a decision which otherwise, he would not have given, it is embarrassing to a judge that he should be informed of matters which he would much rather not have and which make it much more difficult for him to do his duty.”

All that his Lordship did in Duffy’s case, 1950-2 QB 188 (supra) was to determine the meaning of the word “embarrassment”, as used by Hum-phrays J., in the following language:

“It is by no means clear what the judges in that case intended to convey by the word ’embarrassment’. If, in its context, the word means more than this, namely, the article had put upon the judge quite unnecessarily, the task of dismissing the offending matter from his mind, then we think the dicta we have quoted goes too far. Embarrassment which has no effect on the impartiality is not necessarily contempt of Court, The question always is whether a judge would be so influenced by the article that his impartiality might be consciously or even unconsciously affected. In other words, was there a real risk, as opposed to a remote possibility, that the article was calculated to prejudice a fair hearing. Even then his Lordship did not close his judgment without a warning and observed:

“We hope that nothing we have said will lead newspapers to think that the Court approves in any way of an article such as this, Not only do newspapers publish such articles at their peril in regard to proceedings for contempt of Court or for libel but the effect of such an article may well be that the prisoner will, however wrongly, think that he will be or has been prejudiced in his appeal.”

This closing paragraph really supplies the key to the judgment. A prejudicial publication, concerning a pending proceeding, may amount to contempt and is risky business. But the trained mind of the judge is likely to ignore extraneous matters and may not be embarrassed or influenced by each and every prejudicial publication, particularly if he be an appellate Judge concerned entirely with the legal (and not the factual) aspect of the matter before him. If, however, the publication be so grossly improper that it embarrasses the Judge (even in the limited sense as indicated in Lord Parker’s judgment), then it may be treated as contumacious and dealt with accordingly. This is how I read Duffy’s case, 1950-2 QB 188 and find little therein contained to support the extreme contention of the learned Advocate-General.

18. The case of Vine Products Ltd., 1965-3 WLR 791 (supra), also relied upon by the learned Advocate-General, establishes no different proposition. There was an action commenced by Vine Products Ltd., and others, inter alia, claiming declaration that they were entitled to sell, advertise and offer for sale any wine theretofore sold by them under any of the descriptions, British Sherry, English Sherry, South African Sherry, Cyprus Sherry or Australian Sherry, and to sell, advertise or offer for sale any similar wine under such description without infringing any right of any of the defendants. The claim was disputed by the defendants and there was counter-claim made sacking to restrain the plaintiffs from passing off as sherry beverages which were not wines fortified, matured and blended in Jerez district of Spain. Pending hearing of the action there appeared in a daily newspaper an article headed the Truth of labels which, after referring to a named case in which it had been held that the “Champagne” meant only a wine produced in the Champagne District of France, stated–“If the Sherry Shippers” Association intend, as is reported, to bring a test case in defence of their own name, their position would

be fundamentally the same. Sherry to be fully entitled to the name should come from Jerez…. To speak of South African or Cypriot Sherry is anomalous as to speak of Spanish Champagne. On an application by the plaintiffs, inter alia, for committal of the editor and publishers of the newspapers for contempt of Court, on the grounds that the article contained a discussion of the merits of their action, would cause damage to their reputation as traders and their position in the action, was likely to influence witnesses and the public and subject them to pressure, Buckley, J. observed:

“The right of the press to comment on any matter of general public interest, as long as the comment is fair comment, is a matter of very great public interest, but it is a right which is subject to certain restrictions, one of which is that the organs of the press must not be used in any way to prejudice the proper trial of actions in the courts of the country, that being a higher public interest.”

* * * * *

“The question is how they ought to be applied to the facts of this particular case. It is a contempt of this court tor any newspaper to comment on pending legal proceedings in any way which is likely to prejudice the fair trial of the action. That may arise in various ways. It may be that the comment is one which is likely in some way or other to bring pressure to bear upon one or other of the parties to the action, so as to prevent that party from prosecuting or from defending the action or encourage that party to submit to terms of compromise which he otherwise might not have been prepared to entertain, or influence him in some other way in his conduct in the action, which he ought to be free to prosecute or to defend, as he is advised, without being subject to such pressure. It may be that the publication will be of a kind that is likely to interfere with the proper adducing of evidence in the case either by discouraging witnesses from coming forward or by influencing them in some way in the kind of evidence that they are prepared to give, inhibiting them in ways of that kind; or it may be, if the case is to be tried with a jury, that the publication may be one of a kind which will be apt to make a juryman approach the case without a completely open mind. This is not an action which will be tried by a jury and, although I suppose there might be a case in which the publication was of such a kind that it might even be thought that it would influence the mind of a professional Judge, it has generally been accepted that professional Judges are sufficiently well equipped by their professional training to be on their guard against allowing any such matter as this to influence them in deciding the case, and it is not suggested in the present case that anything has been done to prejudice the trial of this action in that sort of way.”

Thereafter his Lordship referred to the following classic observation by Cotton L, J. in Hunt v. Clarke, (1889) 58 LJ QB 490 at p. 492 C. A. :

“It is not necessary that the Court should come to the conclusion that a Judge or jury will be prejudiced, but if it is calculated to prejudice the proper trial of a cause, that is contempt,

and would be met with the necessary punishment in order to restrain such conduct.”

He explained the observation in the following language:

“What the Lord Justice was there saying, in my judgment, is that, if you have such a discussion in a paper of the rights of some pending litigation as is calculated to prejudice the proper trial of the action, that is a serious contempt which will be met with the necessary punishment. I do not think it is right to take that statement out of its context and say that anything which happens to amount to or be equivalent to a discussion of the rights of some party’s case in an action is thereby automatically a contempt, even if only a technical contempt. The test must always be, in my judgment, whether or not in the circumstances of the particular case what has happened is something which is likely to prejudice the fair trial of the action, and the risk that it will prejudice the fair trial of the action must be a real risk.”

Inasmuch as the offending article did not, in his reading, measure upto the test laid down by his Lordship, he dismissed the motion. This case also does not support the extreme argument of the learned Advocate-General that judges are never influenced or embarrassed by extraneous publication in the Press. There may be public actions made in the Press, so grossly improper, that they may really embarrass as a Court of law. Whether the Radio broadcast, made by the Chief Minister, is such a publication I shall see later on.

18a. Mr. Advocate-General also advanced an extreme argument to the effect that resort to the contempt procedure lor penalising scandalous publications concerning Courts was an obsolete procedure and should not be resorted to. He drew inspiration for this argument from the following observation by Lord Morris in Mcleod v. St. Aubyn, (1899) AC 549, 561:

“It is a summary process and should be used only from a sense of duty and under the pressure of public necessity, for there can be no land marks pointing out the boundaries in all cases. Committals for contempt of court by scandalising the Court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.

I do not understand why the learned Advocate-General made this argument. The Radio talk by the Chief Minister did not scandalise this Court. It merely commented upon the virtues of a Control Order, the validity of which was the subject matter of a pending litigation. Moreover, the observation of Lord Morris that contempt proceedings for scandalising the Courts have become obsolete in England is not strictly speaking correct; for in the very next year such proceedings were taken in Reg v. Grey, (1900)
2 QB 36. This mistake in the observation by Lord Morris was also noticed by Mukherjea, J. in Brahma Prakash Sharma v. State of Uttar Pradesh . I, therefore, overrule this argument, as of no importance.

19. Mr. Advocate-General, next argued at some length that there was no evidence that the

Chief Minister had knowledge of the pendency of the Writ Petition when he broadcast the speech and unless that was proved, this Court should not proceed further. He relied upon the following passage in Oswald’s Treatise on Contempt of Court (p. 93) in this context:

“But it must be proved that the comments were made with the knowledge of the pending cause .

He also relied upon the judgment of the Madras High Court in E. V. Ramaswami v. Jawahar-lal Nehru, AIR 1958 Mad 558 and the cases therein mentioned in support of this proposition. The proposition that knowledge of the pendency of the proceeding is an essential ingredient to prove, before proceeding against a person for contempt of court, is not a universally accepted proposition. The proposition was not accepted by Narasimham, J. in State v. Biswanath Maha-patra in which his Lordship discussed the English decisions on the point and observed (at p. 171):

“If the English decisions on the subject be carefully examined it will be clear that though want of knowledge of the pendency of a case has, in special circumstances, been held to be a good reason for not proceeding for contempt, there is no invariable rule that unless knowledge of the pendency is affirmatively established, the offence ol contempt is not committed”. Almost similar view was expressed by the Allahabad High Court in Rajendra Kumar Garg v. Shafiq Ahmad Azad and by the Madhya Pradesh High Court in Padmawati Devi v. R. K. Karanjia . In the instant case it is not necessary for me to consider this argument any further. In the facts of this case, the learned Advocate-General had to concede, at the end, that the Chief Minister must be deemed to have constructive knowledge of the pendency of Writ Petition, when he did broadcast his speech. The Chief Minister himself goes further, in the affidavit affirmed by him and filed towards the close of the hearing. He admits that he knew of the issue of the Rule Nisi in Matter No. 369 of 1965 but had no knowledge of the details. Were I do express my views on the point, I would have respectfully agreed with the opinion expressed by the Allahabad, Madhya Pradesh and Orissa High Courts, in the three cases referred to hereinbefore. But it is not necessary for me to do so, in this case, regard being had to the turn that events took.

20. Mr. Advocate General recast his argument, after the realisation that it would be futile for the Chief Minister to deny either actual or constructive knowledge of the pendency of the Writ petition. He therefore argued that even if the Chief Minister had constructive knowledge of the pendency of the Writ petition, he was within his legitimate rights in broadcasting his justification of the Control Order and the benefits it was to bring to the general public. In this context he strongly relied on certain observations contained in the judgment of the Madras High Court in the case between AIR 1958 Mad 558 (supra). I need recall in my mind the background in which those observations were made. Ramaswami, the applicant before the Madras High Court, was or claimed to be the

leader of an agitation in the State of Madras known as Dravida Kazhagham. He was committed to a sessions court of stand his trial, inter alia, on a charge under Section 117 of the Indian Penal Code, for having abetted commission of violent offences by the public. The charge related to three speeches, wherein the applicant Ramaswami was alleged to have incited the public to kick, stab and kill Brahmins and set fire to their houses. While the trial of the applicant was pending, Prime Minister Nehru visited the State and delivered a speech, in course of which he said:

“But one of the most remarkable and one of the most foolish agitations that I have experienced in India has recently started in your own State of Madras. This I believe is known as the Dravida Kazhagham agitation and the leader of this movement had said something which cannot be forgiven and which cannot be tolerated. Apart from actually talking in an unabashed manner about murder, inviting people to murder others a thing unheard of in any civilised society he has dared to insult the National Flag and the National Constitution.”

Prime Minister Nehru expressed the belief that the person who used such language should either go to the prison or to the lunatic asylum. In the belief that the speech prejudiced his criminal trial, in which, by the way, he was ultimately convicted and sentenced, Ramaswami moved an application for taking action against the Prime Minister for contempt of the Sessions Court. The application would have in any event been dismissed, because their Lordships were of the view that in the absence of proof that the Prime Minister had knowledge of the pending proceeding, the speech would not amount to contempt of Court. Their Lordships, however, considered the application on the assumption that the Prime Minister had knowledge of the case against the applicant. In that context, their Lordships observed:

“The question then is, whether there was anything in the speech complained of to warrant the criticism that it was calculated or even tended to prejudice the trial of the sessions case against the petitioner. There is no reference in the speech to the criminal case or to the particular speeches of the petitioner which were the subject matter of the criminal charge against him. The respondent’s speech was concerned with certain disruptive movements and forces in the country and the anti-social activities of certain persons and their professed methods to destroy the very fabric of society by committing acts which undoubtedly were offences. The agitation of the Dravida Kazhagham of which the petitioner is the leader and the insult offered to the National Flag were mentioned. Those certainly are matters of grave public concern, and the observation of the respondent is nothing but a legitimate criticism of what, in the opinion of the respondent and of every right thinking citizen, are forces of evil and disruption. We can see nothing in the speech which can be said to interfere or tend to interfere with the course of justice”.

Their Lordships of the Madras High Court could not find anything in the speech which interfered

or tended to interfere with the course of justice on the two-fold ground that Prime Minister Nehru did not refer to the pending criminal case against the leader of the Dravida Kazhagham movement and also did not refer to the speeches for which he was being tried. Their Lordships did not consider whether the characterisation of the applicant, as made by Prime Minister Nehru, was such as might prejudice him in his Criminal trial. According to their Lordships the speech was devoted to condemnation of a disruptive movement, and the antisocial activities of certain persons, including those of the leader of the movement and as such was a legitimate form of criticism. The case is no authority for a general proposition that criticism of a disruptive movement and its leader may go to any length and nothing said in that context can interfere of tend to interfere with the administration of justice or embarrass a Judge in a Criminal trial of the leader of the movement. Prejudicing mankind for or against a party, before his case has been heard out, is contempt. Prejudicial criticisms do not fall outside the ambit of the Law of contempt, only because the criticisms were bona fide made, or made in a public interest supposed or real. I have therefore to see whether speech broadcast by the Chief Minister did or did have the tendency to prejudice people against the petitioners in Matter No. 369 of 1965 (Smt. Kusum Kumari Ghosh v. State of West Bengal) or did or did have the tendency to embarrass the said petitioners or others with similar cause or the Court which was trying the cause of the said petitioners.

21. Mr. Advocate General read to me passages from Ambard v. Attorney General of Trinidad and Tobago, 1936 AC 322 particularly the passage at p. 335:

“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 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.”

The above observations were made in the context of a proceeding for contempt started against the editor-manager of a newspaper for publication of an article containing criticisms of sentences passed by Criminal Courts, which, it was alleged, was calculated to interfere with the due course of justice and to bring the authority and administration of the law into disrepute and disregard. The case is of little assistance in the facts of the instant case. There is nothing contained in the speech by the Chief Minister, which criticises any Court, far less this Court. If criticism had been directed against this Court, I might have been guided by the observations of Lord Atkin in Ambard’s case (supra).

22. My attention was also drawn by the learned Advocate General to the following cases namely, (1) Debi Prasad Sharma v. Emperor in which it was held that if a Judge be defamed in such a way

as not to affect the administration of justice, the act is not contempt and the Judge has only his ordinary remedies for defamation (2) Queen v. Payne and Cooper, (1896) 1 QB 577 in which Lord Russel of Killowen C. J. adopted the view expressed by Cotton L. J. in In Re: Clements, Costa Rica Republic v. Erlanger, (1877-46 LJ Ch 375) (58 LJQB at p. 493) to the effect,
“Now that I apply and adopt as the principle which ought to regulate these applications–that there should be no such application made unless the thing done is of such a nature as to require the arbitrary and summary interference of the Court in order to enable justice to be duly and properly administered without any interruption or interference, that is what we have to consider, and in my opinion, although, as I say, there is here that which is technically a contempt, and may be such a contempt, as to be of a serious nature, I cannot think there is any such interference or any such fear of any such interference with the due conduct of this action, or any such prejudice to the defendant who is applying here, as to justify the Court in interfering by this summary and arbitrary process”.

(3) Gaskell and Chambers Ltd. v. Hudson Dodsworth & Co., (1936) 2 KB 595 in which Lord Hewart C. J. accepted the restatement of the law by Lord Russel in Queen v. Payne (supra) as the correct statement of law. (4) Ananta Lal Singh v. Alfred Henry Watson in which Rankin, C. J. observed

“that the court’s jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the action of the Court in its very special jurisdiction. The purpose of the Court’s action is a practical purpose and, it is reasonably clear on the authorities, that this Court will not exercise its jurisdiction upon a mere question of propriety where the tendency of the article to do harm is slight and the character and circumstances of the comment are otherwise such that it can properly be ignored.

Governor of Bengal v. Matilal Ghosh, ILR 41 Cal 173: (AIR 1914 Cal 69) in which Jenkins, C. J. emphatically stated almost the same view, although Rankin, C. J. entertained the doubt whether the statement of law by Jenkins, C. J. had been made with sufficient guardedness and In re, Subrahmanyan, Editor, Tribune, AIR 1943 Lah 329 (FB) in which Harries, C. J. also expressed a similar view.

23. If in citing these authorities the object of the learned Advocate General has been to impress upon me the propositions that the power of summarily punishing for contempt should not be lightly resorted to and unless there has been substantial (as opposed to technical) interference with the course of justice or unless some litigant has suffered substantial prejudice by reason of an adverse publication, pending litigation, courts should ignore such publication–I am prepared to uphold the propositions as correct propositions of law. I am also prepared to uphold his other proposition, although not necessary so to do in the context of the present case, that if a Judge be

defamed in such a way as not to affect the administration of justice, the act is not necessarily contempt. I have, therefore, to see if the speech delivered by the Chief Minister substantially interferes or tends to do so with the administration of justice by this Court or prejudices the cause of the petitioners in Matter No. 369 of 1965 or antagonises the public against them or has any of the pernicious consequences mentioned in the Rule Nisi.

24. Mr. Advocate General further argued that the offence, if any, committed by the Chief Minister was criminal contempt and he should be treated as an accused in a criminal case and the protection of Article 20 of the Constitution should apply to him. Mr. Advocate General also argued that no new material should be brought on the record after the issue of the Rule Nisi, particularly where the Rule was issued suo motu and that this Rule itself should not have been issued in the absence of an affidavit by a Registrar of this Court, calling attention of this Court, to the broadcast and publication of the speech of the Chief Minister. These points, in my opinion, are mostly not of substance. Mr. Meyer, who acted as amicus curiae, called my attention to the case of Sukhdev Singh v. Teja Singh C. J., AIR 1954 SC 186. In that case there was an application made, before the Supreme Court, for transfer of a Contempt proceeding from the Pepsu High Court to any other High Court, under the provisions of Section 527 of the Code of Criminal Procedure, on the theory that contempt punishable under the Contempt of Courts Act, 1952 was an offence to which section 5 of the Criminal Procedure Code applied and was triable under the provisions of the Code. The Supreme Court dismissed the application with the following observations:–

“In our opinion, the power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Record and Section 1(2) of the Code expressly excludes special jurisdiction from its scope. The section runs:

‘In the absence of any specific provision to the contrary, nothing herein contained shall affect any special ….. law now
in force or any special jurisdiction or power conferred by any other law for the time being in force.’

The term ‘special jurisdiction’ is not defined in the Criminal Procedure Code but the words ‘special law’ are defined in Section 41 of the Indian Penal Code to mean ‘a law applicable to a particular subject’. In the absence of any specific definition in the Criminal Procedure Code, we think that that brings out the ordinary and natural meaning of the words special jurisdiction and covers the present case. Contempt is a special subject and the jurisdiction is conferred by a special set of laws peculiar to Courts of Record.”

* * * *

“Now it is relevant to note in this connection that whatever the origin of the jurisdiction may be in the case of those three Courts, the Charter of 1774 which established the Supreme Court of Bengal, while providing in Clause 4 that

its Judges should have the same jurisdiction as the Court of King’s Bench in England, also expressly stated in clause 21 that the Court is empowered to punish for contempt.

When the Supreme Court of Bengal was abolished, the High Courts Act of 1861 continued those powers to the Chartered High Courts by sections 9 and 11 and clause 2 of the Letters Patent of the year 1865 continued them as Courts of Record. Despite this, in 1883 the Privy Council did not trace this particular jurisdiction of the Calcutta High Court to Clause 15 of its Charter but to the Common Law of England. But what is the Common Law? It is simply this: that the jurisdiction to punish for contempt is something inherent in every court of record.”

The Supreme Court, thereafter, discussed the continuance of this power under the different Constitution Acts and the Constitution itself and observed:

“In any case, so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate Court, the Constitution vests these rights in every High Court, so no act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.” Ultimately, the Supreme Court came to the following conclusion:–

“We hold, therefore, that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by the Privy Council in In re, Pollard, (1845) LR 2 PC 106 at p. 120, and was followed in India and in Burma in Vallabhdas Jairam v. Narronjee Permanand, (1903) ILR 27 Bom 394 at p. 399 and Ebrahim Mamoojee Parekh v. Emperor, AIR 1926 Rang 188 at pp. 189-190. In our view that is still the law.”

This being the position in law, the argument proposing to import provisions of the Criminal Procedure Code to the trial of a person for contempt must be overruled. The argument that even if trial of a contemner, by summary procedure, be not a criminal trial, even then the contemner is entitled to protection of Article 20 of the Constitution and cannot be compelled to give self incriminating evidence, is, however, a debatable question of law. In the case of State v. Padma Kant Malviya (FB) a Full Bench of the Allahabad High Court repelled such an argument and held that an alleged contemner was not a person accused of an offence within the meaning of Article 20(3) of the Constitution and if he had voluntarily filed an affidavit, he could be cross-examined on it. The question, is, however, of academic importance to me, in this Rule. The Chief Minister has not been compelled to give any self-incriminating evidence in this Rule. This Court did not direct him to file an affidavit when he did want to file one. At the last moment, when he decided to file an affidavit voluntarily, this Court merely accepted the same. I do not therefore pronounce my views on this point.

25. The other argument, namely, that no material should be brought on the record after the Rule was issued suo motu, I do not uphold. This Court may adopt its own procedure, in dealing with a contempt case–all that is necessary is that the procedure must be fair and that the contemner must be made aware of the charge against him and be given a reasonable opportunity to defend himself (Vide the judgment of the Supreme Court in Sukhdev Singh’s case from which I have already quoted the relevant passages). In the case of In re, Basanta Chandra Ghosh (FB), a Full Bench of the Patna High Court went further and observed:

“It is no doubt true that it has been held in a series of decisions that when a witness is examined in a judicial proceeding, the examination of the witness and his statements must be subject to the rules of evidence laid down in the Evidence Act; and it is also no doubt true that the proceeding in contempt is a judicial proceeding. In my opinion, however, in view of the summary nature of the enquiry it will not be correct to apply the strict rules of evidence to this class of cases.”

It is not necessary for me, in this Rule, either to agree with or dissent from the view expressed by the Patna Full Bench, because witnesses, who were called, were all examined in accordance with the provisions of the Evidence Act. Opportunity was offered to the learned Advocate General to cross-examine the witnesses. He, however, declined to cross-examine them at that stage, without indicating to me when his next stage was likely to come. I had to determine the text of the speech that was broadcast by the Chief Minister over the All India Radio and a summary report whereof was published in the Statesman and the Amritu Bazar Patrika. I could not proceed merely on the summary, because that might have been inaccurate or might have reported certain purple passages only, taken out of context. It would not have been proper for me to have found fault with the Chief Minister merely on the Press Summarisation of his speech, without reading the full and correct text thereof. The attitude exhibited by the learned Counsel appearing for the Chief Minister was unhelpful and non-committal. The correctness of the Press Summary of the speech was not at first admitted, the correct and complete text of the speech was not produced and what was more the Counsel took up the stand that the offending speech, if any, must be proved by this Court, if this Court wanted to proceed against the Chief Minister for contempt. Thus, there was nothing left for me but to try to bring the text of the speech on the record, by examining witnesses in the know of the matter. The names of the persons, whom I wanted to examine, were disclosed to the learned Counsel for the Chief Minister and recorded in my orders dated 23-12-1965 and 10-1-1966. They were examined on oath, in the presence of the learned Counsel for the Chief Minister, copies of their deposition and also of the books and documents produced by them and exhibited in the case, including the full text of the speech, were either supplied to them free of cost or made available free of cost.

The witnesses were not cross-examined because the learned Counsel for the Chief Minister declined to do so. If this procedure be not permissible under the law, as was argued, it would be possible for anybody to deliver a contumacious speech, allow the summary only of the speech to be reported, put away the speech or put it in his own pocket, when charged with contempt, not admit the delivery of the speech and take up the stand that the speech must be proved before any action can be taken. If evidence cannot be let in to prove that such a speech was made, the contemner may stultify he proceeding and escape. 1 hold that this is not the law and that escape routes for con-temners are not so broad. If a contumacious speech be denied by an alleged contemner, Courts can always take evidence and see if such a speech was at all delivered by him and on proof of the speech deal with him according to law. There is nothing contained in ILR 41 Cal 173: (AIR 1914 Cal 69) (SB), on which the learned Advocate General strongly relied, which goes contrary to what I have stated above. In that case on the application of the Governor of Bengal in Council, at the instance of the Legal Remembrancer of Bengal, there was an order made to serve notice of motion upon Motilal Ghosh, alleged to be the Editor and Manager, and upon Tarini Kanta Biswas the Printer and Publisher of Amrita Bazar Patrika. At the hearing, it did not appear that Motilal Ghosh was the Editor and Manager of Amrita Ba/ar Patrika, except that the applicant had such information. The Counsel for the applicant thereupon wanted to prove the fact by other evidence. That prayer was refused on the ground that it was opposed to the condition on which leave hud been obtained to serve notice of motion as well as to the Rules of this Court, meaning presumably Rule 504 of Rules of this Court edited by R. Belchambers.

26. This discussion on the point is now, however, of academic importance, because the material that was brought on the record by examination of witness, namely, the text of the impugned speech was ultimately admitted to be the speech broadcast by the Chief Minister on 25-11-1965.

27. Belore I leave this point, I need notice another short argument advanced by the learned Advocate General in this context. He argued that if new materials be put on the record after the issue of a Rule Nisi, the Rule Nisi should be discharged. A fresh rule may, however, issue incorporating the further materials. In support of this argument, he cited the contempt case entitled In the matter of Banks and Fenwick, 26 Cal LJ 401: (AIR 1918 Cal 752). The case is no authority for the proposition argued by the learned Advocate General, What happened in that case was that there was a Rule issued against the printer of a newspaper for publication of a contemptuous article. The editor of the newspaper came forward and admitted his own responsibility for the publication. Thereupon Sir Barnes Peacock, C. J. observed that he was prepared to withdraw the Rule against the printer and treat the editor as the person against whom the Rule had been issued. No fresh Rule was,

however, issued and argument went on in the Rule as issued, with this change only that the editor was treated as the contemner in place of the printer. I find nothing in the aforesaid case which supports this argument. Moreover, there are cases where oral evidence and affidavit evidence were received in contempt Rules, either in proof or in disproof of the subject matter of the Rule and nobody thought of this sort of objection. Evidence was taken in proof of the authorship of a contumacious article in the case entitled (FB). Affidavit evidence was received by this Court in proof of the contumacious conduct of a District Magistrate towards a Subordinate Judge’s Court in the case of State v. Debabrata . The true position ol law in this respect seems to me to be this. If a fresh charge of contempt be levelled, when the Rule Nisi had been issued on other charges, a Court may issue a fresh Rule therein incorporating the old and new charges of contempt and try all the charges together or the Court may issue a now Rule in respect of the new charge oi contempt. This is in consonance with the principles of natural justice, because a person charged with one contempt should not be penalised for a different contempt for which he had not been charged. But it is not the law that whenever evidence in support of charge of contempt, which is the subject matter of the Rule, be let in, the Rule must be discharged and a fresh Rule issued therein incorporating the supporting evidence. The view that I take is also the view of the Patna High Court in State v. Tribhuvan Nath .

28. I do not find any substance also in the argument by the learned Advocate General that this Rule should not have been issued in the absence of an affidavit by a Registrar of this Court, inviting my attention to the offending article and characterising the same as contumacious. He appeared to have found inspiration for this argument from the procedure adopted in the case entitled In the Matter of Amrita Bazar Patrika, 39 Cal WN 770: (AIR 1935 Cal 419) (SB). I am not impressed by the argument. The perception of this Court is not so weak that it cannot take notice of contumacious conduct and publications, unless made to see by the Regis-trar, which must take the form of a solemn affidavit by him. This Court can itself take notice oi such conduct or publications without extraneous aid. Any member of bar may call attention of the Court to such contumacious conduct or publication, because it is equally their duty and responsibility to see that the dignity of the Court be maintained at respectful level. They are persons of no less qualification and responsibility so to do, than the Registrar of this Court. The procedure for starting contempt proceedings, with an affidavit by Registrar, is a convenient procedure, but is not the only procedure. Such proceedings may be started suo motu and continued without an affidavit from the Registrar. If any authority be needed for the above pro-position, I may refer to Superintendent and Legal Remembrancer of Legal Affairs, Bihar v. Murali Manohar Prasad, AIR 1941 Pat 185; M. G. Kadir v. Kesri Narain Jaitly (FB) and .

29. Mr. Advocate General lastly contended that if the speech by the Chief Minister contained some objectionable passages, the same should be ignored, because no substantial prejudice to the petitioners in Matter No. 369 of 1965, no substantial interference with justice and lowering of the dignity of the Court would thereby be caused. He invited my attention to the case of where the Supreme Court took the same view in respect of a technical contempt and asked me to do the same thing. I shall consider this branch of the argument, when I consider the speech and its effect and also the justification therefor as pleaded by the Chief Minister.

30. Mr. Meyer, appearing us the amicus curiae, invited my attention to certain passages from the following cases, which lay down the law, I need consider in the context of this Rule, namely, Suresh Chandra Mukherjee v. Biswa-nath Chakravartti ; Sathappa Chettier v. Rama Chandra Naidu, ILR 55 Mad 262: (AIR 1932 Mad 26); Bankim Chandra v. Anand Bazar Patrika ; Rex v. Tibbits, (1902) 1 KB 77; Daw v. Eley, (1868) 7 Eq 49; Skip-worth’s case, (1871) 9 QB 230 (233) and (1945) 1 KB 435. The statement of law that I collect from the above cases may be summarised as follows:

(a) any act done or writing published, which is calculated to interfere with the due course of justice is a contempt of Court. Writings prejudicing the public for or against a party are similarly contempt. No intent to interfere with the due course of justice or to prejudice the public need be established if the effect of the article or articles or speech or speeches complained of is to create prejudice or is to interfere with the due course of justice. It is of the essence of the offence that proceedings should be pending when the publication was made (Per Harries, C. J. in Murali Manohar’s case, AIR 1941 Pat 185).

b) In the class of cases where contempt is alleged to have been committed by improper publication, the essence of the matter is the tendency to interfere with the due course of justice. Any publication which is calculated to poison he minds of the Jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible amounts to offence. (Per Harries, C. J. in Re: Subrahmanyan, AIR 1943 Lah 329).

The reasons for the rule that contempt may be committed by publication of prejudicial material are two (1) such articles tend to prejudice the minds of jurors to deter witnesses from giving evidence, to induce the parties to withdraw from the cause or abandon their defence and possibly to affect the decision of the Court.

2) If an atmosphere has been prejudiced by a publication which by propagating one sid-ed version of a matter incubates among the pub-He a definite opinion about that matter, the pub

lic confidence in the Court itself is destroyed, if the decision goes against the decision formed by the public (Per Munir, J. in Subrahmanyan’s case, AIR 1943 Lah 329) (supra).

(c) Where legal proceedings are pending before a Court, publications in respect of these proceedings, which are calculated to produce an atmosphere of prejudice in the midst of which the said proceedings must go on, are contempt of Court even the legal proceedings pending did not involve trial by jury and where no one would imagine that the mind of the Magistrates or Judges charged with the case would or could be induced thereby to swerve from the straight course (Per Beasley, J. in Sathappa Chittar’s case, ILR 55 Mad 262: (AIR 1932 Mad 26), relying upon Lord Alverstones C. J.’s observation in (1902) 1 KB 77 at p. 88.

(d) It is a fallacy to say or to assume that the presiding Judge is a person who cannot be affected by outside information. He is a human being and while it is not suggested that it is likely that any judge, as a result of the information which had been improperly conveyed to him would give a decision which otherwise he would not have given, it is embarrassing to a Judge that he should be informed of matters which he would much rather not hear and which make it much more difficult for him to do his duty. The reason why such informations are treated as contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists–namely, to administer justice duly, impartially and with reference to solely to the facts judicially brought before it (Per Humphreys, J. in (1945) 1 KB 435 at pp. 442-43 relying on Rex v. Parke, (1903) 2 KB 132.

Jurors are not the only people whose minds can be affected by prejudice. One of the evils of inadmissible matter being dissimated is that no one can tell what effect a particular piece of information may have on the Judge’s mind (Per Oliver, J. in 1945-1 KB 435 (supra) at p. 445.

(e) What is punishable under the law is comment on a cause while it is pending actually prejudicing or calculated to prejudice any party. If the party is named it adds to the gravity of the offence but the miming of the party is not an essential ingredient (Per Lahiri, J. (later Lahiri, C. J.) in Bankim Chandra Paira’s case .

(f) Courts ought not import the concept of mens rea in criminal contempts. When considering the question of guilt only, Courts are not concerned with the bona fides of the writers or the publishers. It may be that a Court will give them the benefit of doubt on the score that the contemners never intended to commit the contempt of Court but intention alone is not of relevant consideration (Vide Sm. Padamawati Devi’s case, AIR 1963 M. P. 61).

(g) If a solicitor appearing for a party to a cause, writes an article in a paper which, if believed, must have a beneficent effect on his client, he must be deemed to have made an endeavour to interfere with the due administration of justice and must be treated as guilty of contempt. His case is worse than that of a stranger to the cause writing a similar article.

Gentlemen who are concerned for contending clients, whether solicitors or counsel, should abstain entirely from discussing the merits of their cases in public print; if they do it at all, they ought to put their names to their communications. “But to let the public suppose, that it was merely done by a person who takes a great interest” in and has great knowledge of the subject and discusses it From a public point of view, when, if the facts were known, he is the solicitor of the defendant and has the strongest possible interest in his success, is in my opinion, highly reprehensible (Per Lord Bomilley M. R. in (1868) 7 Eq 49 at p. 61).

(h) When a case is pending, whether it be civil or criminal, in a Court it ought to be tried in the ordinary course of justice, fairly and impartially. Now, it may happen that there may be interference for the purpose of preventing that ordinary course of justice. More commonly, the mode adopted is by frightening witness, or by commenting on the case, or, as it is called, appealing to the public and endeavouring, by statements made ex parte, without the other side being heard and without the means of testing the matter which the law requires, to prejudge the case and prejudice the trial; and in all these ways great mischief may be done by interfering with the due and ordinary course of law, and causing justice, whether criminal or civil, not to be administered in the way which is ordinarily pursued (Per Blackburn J. in Skipworth’s case, (1873) 9 QB 230 at pp. 232-233).

(i) Although legitimate expression of personal opinion about the issues involved in a pending case is innocuous and permissible still if statements are made in public of which the effect is tocreate an atmosphere of prejudice in which the proceedings are to go on, e.g., by asserting as a positive fact that which is still to be decided in the case pending and thereby predisposing public opinion in iavour of what is so stated as a fact and embarrassing the party interested in establishing the contrary, there is contempt of court, whatever may be the motive, object or occasion of making such statements and although there may be no likelihood of the court being in any way influenced. (Per Jack and Khundkar, JJ. in ).

Keeping in view the above statements of law, I need now consider whether the speech broadcast by the Chief Minister amounted to contempt of this Court. Relevant extracts from the speech, I have already hereinbefore set out. The speech may be divided into six parts. In the first part, difficulties experienced by the public in procuring milk is pleaded as the reason for the promulgation of the Control Order. In the second part, it is said that West Bengal lacks even in the minimum per capita daily requirement of milk, in the fluid form, and to prepare any food with milk in West Bengal “is indeed tantamount almost to a crime”.

In the third part, it is said that although the Control Order has been extended only over Calcutta and its urban areas, the Government will, if necessary, extend the order to other areas in due course. In other words, there was a determination exhi

bited to get along with the Control. In the fourth part, there is an assessment of the benefits conferred by the West Bengal Chana Sweets Control Order and its successor, the West Bengal Milk Control Order, particularly in the form of availability of larger quantities of milk to the people. In the fifth part, there is some sort of advice given to about 39000 employees in sweetmeat establishments, likely to be thrown out of employment on account of the operation of the Control Order, to take to preparation of sweets, which do not require Chana or Khir in their making, and to preparation of salted variety of edibles. In order to make the advice attractive, there is an allurement shown in the form that more sugar, ata and flour would be made available to them. The sixth part of the speech is appeasing, contains as it does an offer ol alternative employment, in Governmnet milk depots, to people who would face unemployment by reason of the operation of the Control Order. Thus justification of the Control Order, condemnation of preparation of sweets from milk, determination to get along with the order and to extend its field of operation, advocacy of the benefits supposedly conferred by the order, advise to employees in sweetmeat establishments to concentrate upon preparation of salted snacks and non-milk based sweets, allurement in the form of grant of larger sugar, ata and flour quota to them and offer of alternative employment, all go to make the speech what it i,s. Should such speech have been delivered by the Chief Minister of West Bengal during the pendency of Matter No. 369 of 1965 (S. Kusum Kumari Ghosh v. State of West Bengal)? In his affidavit, dated 4-3-1966, the Chief Minister no doubt gives a political justification for the speech, namely,

“With a view to preventing wide spread political agitation in connection with the said order I thought it to be my duty as the Chief Minister of this State to forthwith explain to the people the policy underlying and the reasons for promulgating the order .

I shall assume that the Chief Minister made the speech to remove confusion and allay fear from the mind of the people and prevent a brewing political agitation. But I am not concerned with the motive behind or the object of or the occasion for the speech. I have merely to see whether the speech, as made, was likely to have any of the pernicious effects mentioned in the Rule Nisi. Even if the speech did not actually have such effect, that is also of little consideration. I have already discussed the law on this point and need not repeat.

31. Now, the petitioners, in Matter No. 369 of 1965, are persons, who used to carry on trade in milk-based sweets. They ventilated their grievances against stoppage of their trade. Be-fore the matter was heard, the Chief Minister characterised the trade as “tantamount almost to a crime”. Then again, while the said petitioners characterised the Control Order as a reckless and careless piece of delegated legislation, made regardless of the baneful consequences thereof, the Chief Minister dwelt at length on he beneficial aspects thereof, particularly the

aspect which made larger quantity of milk available to the public. The petitioners, in the Rule abovementioned, made the case that stoppage of preparation of milk based sweets would lead tounemployment of a very large number of sweetmeat makers. The Chief Minister, in his speech, advised them to concentrate upon preparation of salted snacks and non-milk based sweets and thus to avoid unemployment. He further held out the allurement that the Government may allot larger quantities of sugar, ata and flour to sweetmeat establishments, so as to enable such establishments successfully to run the trade, re-oriented in the manner suggested by him. Above all there was the expression of his determination to extend the operation of the Control Order to areas other than those mentioned in the Order itself, by stages, in due course. This he did, while the constitutional validity of the Control Order was sub judice be-fore this Court.

32. In my opinion, the speech was such as might have influenced some public opinion against the petitioners. A Chief Minister occupies a highly responsible position under the Constitution, a position both of power and authority. He is a person most likely to know the needs of his own State. There may be many who may believe in factual statements made by him. The learned Advocate General did not concede that a speech by a Chief Minister has any such effect on the people. I am not, however, sure that this is a correct evaluation of a speech by a Chief Minister. In his affidavit, dated 4-3-1966, the Chief Minister also does not accept such an evaluation of his speech, because he says he approached the people, through Radio broadcast, to remove the confusion and allay the fears from the mind of the people with regard to the purpose, nature, object and effect of the Control Order. He says so presumably because he knows that he is heard and believed by a good many. His speech did not prejudice me against the petitioners, in Matter No. 369 of 1965, because in the jurisdiction that the Matter was heard, I was really concerned with the Constitutional and legal validity of the Control Order and incidentally only with its socio economic justification. Also his speech did not have the effect of frightening the petitioners, in Matter No. 369 of 1965, because they did not abandon or discontinue their writ petition, nor make any complaint against the speech. But I am not sure that the speech did not or could not or was likely not to prejudice the public against the cause of the petitioners, in Matter No. 369 of 1965, and their trade in milk-based sweets, which trade was characterised by the Chief Minister as akin to a criminal trade, I would not wonder, if, as result of the speech, a large section of the public came to entertain the view that the petitioners were anti-social elements, who put their private interest above public good and were trying to nullify a beneficent Control Order, which assured life giving milk to those who most needed it, namely, the sick, the aged, the infants and the nursing or expectant mothers. I am not also sure whether speech, by the Chief Minister, eulogising the virtues of the Control Order, deterred others with similar cause of action from coming to this

Court for relief. At least none else came, although admittedly about 39,000 sweetmeat-makers were threatened with loss of employment as a result of the Control Order. Whether they were misled by the speech of the Chief Minister, emphasising upon certain alleged virtues of the Control Order, or allured into inaction by the allurements contained in the speech, I cannot say. Lastly, the exhibition of a determination to extend the territorial application of the Control Order, at a point of time when the Constitutional validity of the Order was being judicially determined, was made at an extremely ill-chosen time. The Rule in Matter No. 369 of 1965 was issued on 22-11-1965 and was made returnable on 26-11-1965. The speech by the Chief Minister was delivered on 25-11-1965. On 30-11-1965, there was an affidavit-in-opposition filed on be-half of respondents in the Rule in answer to the prayer by the petitioners for an interim injunction. Thereafter, on 8-12-1965, there was an affidavit-in-opposition filed in the Rule itself. Both the affidavits were affirmed by Birendra Kumar Bhattacherjee, Secretary, Department of Animal Husbandry and Veterinary Services (marked respectively Ex K and L with notice to the learned Advocate General). Parts of both the affidavits are bodily reproduction of the main theme of speech broadcast by the Chief Minister. The Chief Minister is certainly a person, who is highly interested in the discharge of the Rule in Matter No. 369 of 1965, because the Control Order has his earnest support. For him to have made a public appeal in support of the Order, with the knowledge of the issue of the Rule Nisi calling upon the State Government and the Secretary, Department of Animal Husbandry and Veterinary Services to show cause why the Control Order should not be condemned. was improper and ill-timed. What he really did was to publish beforehand the defence to be taken in the Rule. If I am to be guided by the law enunciated in Gaskell and Chambers Ltd. 1936-2 KB 595 (Supra) or in Atindra Narayan Roy v. Hemanta Kumari Devi, AIR 1934 Cal 606, such a publication by a interested party could be treated as highly improper and contumacious. I do not. however, make anything of this aspect of the matter, because the Rule Nisi issued against the Chief Minister may not directly cover this charge, although it may incidentally do. I refer to this aspect only by the way and in passing.

33. I now propose to make a few observations concerning the justification for the speech pleaded in the affidavit by the Chief Minister, although such a pleading is irrelevant for the purpose of this Rule. A Chief Minister may deliver any speech he likes to stop a political agitation, supposed or real. But he must keep himself within certain limits and must not transgress upon the special province of law Courts. I am surprised to find that a Chief Minister of a State can be so forgetful of his position as to broadcast the type of speech he made, on the plea of political or administrative exigency, regardless of its likely consequences and effect upon the pending litigation, upon the petitioners therein and upon persons having a similar cause of action, as in the pending action, and also regard

less of its possible repurcussion upon administration of justice. In paragraph 12 of his affidavit, he says that he had no intention of showing disrespect to this Court or of interfering with the course of justice. He further says that he did not “anticipate” that his speech could have such effect. That the Chief Minister could not foresee or anticipate the effect of his speech is his misfortune. Few things are brought to a successful issue by impetuous desire, but most by calm and prudent forethought. Whoever fails to turn aside the ills of life by prudent forethought must submit to the course of destiny. Now that the Chief Minister admits that he did not “anticipate” that his speech could have the effect of showing disrespect to this Court or of interfering with the administration of justice he has to face the consequences of his lack of vision.

34. In my reading, the speech broadcast by the Chief Minister amounts to contempt of this Court, in the sense that it is likely to have the several baneful effects, already discussed, upon the petitioners in Matter No. 369 of 1965, upon their cause and upon others having a cause similar to that of the petitioners. I, therefore, hold that the Chief Minister cannot wholly escape the charge of having committed contempt of this Court.

35. Mr. Susil Kumar Biswas, the learned Advocate who moved this Court for a Rule against the Chief Minister, submitted that the way in which the case was conducted on behalf of Chief Minister aggravated the contempt. The submission deserves careful consideration. Towards the beginning, when Mr. S. Choudhury was acting as the leading counsel for the Chief Minister, the attitude was somewhat combative. Nothing was admitted, the text of the impugned speech was not produced. Mo affidavit was used explaining or showing cause. Everything was left to the Court affirmatively to prove against the Chief Minister and in default to discharge the Rule Nisi. This Court therefore had to examine several witnessses so as to find out the full text of the speech and to have a copy of the same exhibited in this case. Thereafter when the learned Advocate General took over the lead, his attitude was not as combative as had been exhibited at the beginning of the case. He admitted the text of the speech (marked Ex J) as the speech broadcast by the Chief Minister. The admission was wholly unnecessary, after this Court had the text of the speech and the broadcast thereof by the Chief Minister proved by evidence, both oral and documentary. If the admission had been made earlier, a good deal of public time and public money could have been saved. The learned Advocate General also made a second admission, somewhat qualified in nature, to the effect that the Chief Minister had constructive knowledge of the pendency ol the Rule Nisi in Matter No. 369 of 1965, which even had not been earlier admitted. The qualification was unnecessary, because the Chief Minister, in his affidavit, himself says that he had come to know of the issue of the main Rule in Matter No. 369 of 1965.” Lastly, when Mr. Sankar Banerjee took over the lead the attitude changed. At a point of time when the learned Advocate General had

finished his arguments and I had finished hearing the address of Mr. Meyer, the amicus curiae on points of law, Mr. Sankar Banerjee wanted liberty to file an affidavit explaining how and in what circumstances the speech was broadcast by the Chief Minister. I did not deny him the opportunity, because he submitted the earlier decision not to use an affidavit was not right. The affidavit filed does not contain a word of regret. It merely contains the story how and why the speech was broadcast. Since motive, object and occasion for making a speech is of irrelevant consideration, if the speech be in substance contumacious, the affidavit does not absolve the Chief Minister. I make uo secret of my feeling that I did not like the manner in which the case was conducted on behalf of the Chief Minister. Were I not convinced, after hearing Mr. Sankar Banerjee, that in the conduct of the case too much depended on the moods of different counsel, appearing on behalf of the contemner, and too little upon the choice of the contemner himself I might have gone into the question how far, if at all, the original contumacious conduct stood aggravated by the manner in which that conduct was defended.

36. It remains tor me now to consider how to deal with the contemner. I have found that the speech was contumacious, in the sense that it was likely to have baneful effects upon the petitioners, their cause and upon persons having a similar cause and as such was likely to interfere with the administration of justice by this Court. The justification pleaded by the contemner does not help him, because considerations of political or administrative exigencies must not go so far as to enable a Chief Minister to behave contumaciously towards Courts of law. I, however, have uo reason to disbelieve the plea that the contemner did not “anticipate” that his speech might be contumacious or might tend to become one. The same want of anticipation was also evident in the cause shown by him and on his behalf. I have, however, one doubt. Although I express the opinion that the speech broadcast by the contemner was likely to have several baneful consequences, as hereinbefore indicated, on the pending litigation and on persons having a similar cause, I am not sure how great the likelihood is. Unless the baneful effect is substantial, a Court should not summarily punish a contemner. I have only the speech before me and nothing else to aid me, except my reading of the speech. That reading no doubt enables me to come to the conclusion that the speech was likely to have some mischief value and might prove prejudicial to a pending litigation, to prospective litigation of the same type and to fair administration of justice but does not enable me to come to the conclusion about the quantum of that mischief and that prejudice. I cannot lose sight of the fact that the petitioners in Matter No. 369 of 1965, persons primarily affected by the speech, do not complain against the speech. The possibility of mischief and prejudice, if not substantial need not be emphasised and the contemner need not be punished. Because of my inability to assess that largeness of the likelihood, on the facts before me, I let the contemner off, with an expression of my disapproval of his conduct. I

can only hope that this sort of indiscretion will not be repeated by him.

37. Before I close, I put on record my deep appreciation of the eminent assistance rendered to this Court by Mr. Meyer, acting as amicus curiae.

38. This Rule is disposed of with the ex
pression of opinion hereinbefore indicated.

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