Sarjoo Prosad, C.J.
1. A rule nisi was issued by this Court on 7-11-1953 calling upon the opposite parties to show cause why they should not be committed or otherwise dealt with for contempt of this Court for publishing a news item in an issue, dated 21-8-53, of the 'daily' called 'The Times of India'. The. opposite parties 1 and 2 are the Editor and the Printer and Publisher of that paper respectively, and opposite party 3 is the correspondent thereof from Jorhat in the State of Assam. This paper appears to have a large circulation, and is published simultaneously every day in the English language in Bombay, Delhi and Calcutta. The news item in question bears the heading 'Failed candidate to get his degree' and is dated, Jorhat, August 20. The publication purports to be a report of a judgment, dated 18-8-53, delivered by this Court in Civil Rule No. 3 of 1953. As the report appeared to be a garbled and distorted version of the judgment leading to the impression that it was an arbitrary writ of mandamus issued against the Gauhati University, the attention of the Court was directed to the publication by an affidavit filed by Mr. J. C. Medhi, the then Registrar of the Court.
2. The relevant facts were that one Hemendra Chandra Das who was a student of the Jorhat Agricultural College, appeared in the Bachelor of Science Examination in Agriculture of the Gauhati University for the year 1952 as an examinee. According to the mark-sheet furnished by the University, he secured 1172 marks out of an aggregate of 2400 marks in the Examination, that is to say, he secured in the aggregate 48.8 per cent. marks. He also got more than 30 per cent. marks in 'each 'subject';' though in one of the papers of 'Genetics etc.' in the subject of 'Agricultural Botany which consisted of two theoretical papers-(i) Plant Physiology and (ii) Genetics etc.,-he secured only 28 marks out of 100, but counting the marks in the above two papers of Agricultural Botany, he secured more than 30 per cent. marks even in that subject.
The rules simply required that
in order to pass the B. Sc. Examination in Agriculture, a candidate must pass in all the subjects by obtaining 30 per cent. or more marks in the theoretical papers and 40 per cent or more marks in the practicals;
and in order to get a Second Class, a candidate must obtain 45 per cent. or more marks in the aggregate, but not exceeding 60 per cent., which entitled him to a First Class. The candidate's stand, therefore, was that according to the rules and regulations of the University, he should have been declared to have passed the University Examination in Bachelor of Science (Agri.) and to have been placed in the Second Class; but when the results of the Examination were published in August 1952, the University did not announce his name as a successful candidate in that Examination. Having failed to move the University authorities to consider his case, he applied to this Court under Article 226 of the Constitution for a direction on the University by an appropriate writ to declare him to have passed the Examination as aforesaid.
The petition was resisted by the University on the ground that each paper for the Bachelor of Science Examination was a subject by itself. It was, in other words, asserted on behalf of the University that Agricultural Botany was not a subject by itself but consisted of two distinct subjects, namely, (i) Plant Physiology, and (ii) Genetics, etc. It was further contended by the University that in order to pass the Examination in question, a candidate must, under the rules, obtain 30 per cent. or more marks in each paper of each subject, and the petitioner having failed to do so, his marks in one of the papers, 'Genetics, etc.', being only 28 out of 100, he could not be declared to have passed the Examination,
This Court, after hearing the matter on two different dates, and after a careful consideration of the points urged on behalf of the parties, came to the conclusion that the University had acted in direct contravention of the rules in not declaring the candidate, Hemandra Chandra Das, to have passed the Examination. It found that the contention of the examinee was correct; there being two papers on the subject of Agricultural Botany, all that was necessary for a candidate to pass in that subject according to the rules was to obtain 30 per cent. marks in that subject. The candidate having obtained more than 30 per cent. marks in the subject of Agricultural Botany, counting the aggregate of the two papers in that subject under the regulations of the University, he should have been declared to have passed the said Examination of the University and to have been placed in the Second Class. The Court, therefore, accepted the application of the candidate and issued the necessary writ on the University, for announcing the result, as aforesaid,
3. The judgment of the Court was delivered by. me, with which my brother, Deka, J., agreed. We heard the application for the first time in the presence of both parties on 24-6-53 when we felt impressed with the case of the petitioner. We, therefore, gave an opportunity to the University to reconsider its decision, but when the case was again taken up on 11-8-53, the Court was intimated that the University had no inclination to do so. Then the Court proceeded to hear the parties afresh and give its judgment. The judgment shows that the Advocate-General who represented the University said all that could be said for the action it had taken against the candidate. I concluded my judgment in the case with these observations :
Ordinarily, however, a Court would be most reluctant to interfere with the internal discipline of the University and its autonomous working under the Statute. An august body of such importance is entitled to all the reasonable latitude which its position deserves. I was, therefore, anxious that the authorities themselves would realise their mistake and would rectify the wrong which they had done to the petitioner, but I understand that, in spite of my having given them sufficient opportunity to do so, they have consistently refused to consider the claim of the petitioner. As I have said above, the University is a creature of the Statute and must obey the rules and regulations by which it professes to be bound, If it acts in violation of those rules and thereby adversely affects the rights of others, its conduct Is open to question. I have, therefore, no other alternative but to direct that the rules and regulations framed by the University should be strictly followed.
4. It is in the background of these facts that the offending publication has to be considered. The caption of the article 'Failed candidate to get his degree', which is in very bold capital letters, is, by itself, somewhat intriguing and sensational. It may ill accord with the respectability of a responsible journal to cater for sensation-mongering items of news, but the temptation is venial and no serious exception could be taken to it unless what follows thereafter is actually found to be objectionable and constitutes contempt. After some preliminary observation the article says :
On an 'ex parte' application of the petitioner, Mr, Hemendra Chandra Das, the Chief Justice Sarju Prasad and Mr. Justice Haliram Deka, of the Assam High Court, issued the writ, declaring the petitioner to have passed the examination.
I have shown that the writ was not issued on any 'ex parte' application, but that the two sides were fully represented and heard in the matter, before the judgment was delivered. This is apparent even from the later portion of the publication itself. Therefore, the reporter concerned either did not know the meaning of the word 'ex parte' or had some wrong and hazy notion of its import. Then come the following paragraphs :
The petitioner's case was that he sat for the examination in 1952 and obtained an average of 48.8 per cent. of the aggregate total marks for all subjects, but failed to obtain 33 per cent. in one subject alone.
Under the University rules, a candidate must obtain 33 per cent. marks in each subject to pass the examination, irrespective of the percentage obtained of the aggregate total marks.
But the petitioner obtained more than 33 per cent. of the aggregate though he failed in one subject by scoring 28 per cent. The University had, therefore, declared him to have failed in the examination.
These paragraphs unmistakably represent (i) that on his own admission the petitioner in that case had failed to obtain 33 per cent. marks in one subject; (ii) that under the University rules, a candidate was bound to obtain 33 per cent. marks in each subject to pass the examination irrespective of the percentage of the aggregate total marks; (iii) that the petitioner obtained more than 33 per cent. of the aggregate though he failed in one subject by scoring 28 per cent. only : and (iv) that the University had, therefore, declared him to have failed in the examination,
If those facts as represented in the quotation were correct, the candidate had no case to come to this Court and obtain a writ, when, as the article suggests, on his own showing he had failed in one subject in which he scored 28 per cent. only, and the rules required that he should have obtained 33 per cent. in each subject in order to pass the examination. On these false premises, the reader of the article cannot come to any other conclusion than this that the University was right in not declaring the candidate to have passed, and that this Court, without rhyme or reason, issued a mandamus compelling that important public body to grant the B.Sc. degree in Agriculture to an unqualified candidate. I have shown already what the actual facts were. The candidate had passed in each subject and obtained more than 30 per cent. marks in each of them, which was all that was required to make him pass the examination under the rules.
The publication has, therefore, distorted the essential facts and presented them in such a garbled manner as to make it appear that the decision of the University in failing the candidate was quite justified, and that the action of this Court was arbitrary in directing the 'failed candidate to get his degree'. The other parts of the article in question do not, in my opinion, improve but worsen the position. I may as well quote that part;
The petitioner then filed a suit in the Assam High Court against the University to declare him to have passed the examination in the second division. After considering the merits of the case, the Chief Justice issued instructions to the Gauhati University to declare the petitioner to have passed the examination and to intimate their declaration to this effect to the Chief Justice through the Advocate-General on or before August 18.
On the failure of the University to carry out the High Court's order, the Chief Justice issued the above writ.
The writer of the article who ventures to send reports on important legal topics to an important 'Daily', has not even the faintest notion of the difference between a 'suit' and an 'application' for a high prerogative writ. In the beginning of the article, he used the words 'ex parte application'. It only shows at least how careless and irresponsible the writer has been in ascertaining his facts. I will, however, proceed to examine the meaning of the above quotation. It states that the Chief Justice issued instructions to the Gauhati University to declare the petitioner to have passed the examination as if this was done by me individually, and not sitting in Court with my colleague (Deka, J.); and that I wanted the reply of the University to be intimated to me by the Advocate-General; and, on the failure of the University to carry out my order, I issued the writ.
These are clearly wrong and tendentious statements, likely to mislead the reader and to create the impression that I or the Court was acting in some despotic fashion seeking to impose our authority on the University. The caption of the article in bold glaring letters thus assumes its own mischievous significance. From what I have already discussed earlier, the facts and the contents of the judgment as published in this report are totally incorrect and misleading. The news item is bound to create a misapprehension in the mind of the innumerable readers of the newspaper so as to make them doubt the wisdom and sagacity of the action taken by this Court and shake their confidence in the fair and impartial administration of justice, for which this Court exists. It brings into disrepute our decision in the above case and tends to scandalise the Court by false imputations.
5. The opposite parties have shown cause. They do not deny their responsibility for the publication. The Editor and the Printer merely deny having published a distorted version of the facts and/or of the contents of the judgment of this Court in the said Civil Rule No. 3 of 1953. They say that the inaccuracies in the report were inadvertent; that the only inaccuracy relates to paragraph 4 of the report, where, instead of 33 per cent., it should be 30 per cent. and the word 'subject' following thereafter should be 'paper'. They also admit that there have been similar mistakes in paragraphs 5 and 6 of the report, that the inaccuracy in the report was inadvertent and that it was not likely to create any misapprehension in the mind of its readers so as to bring the decision of this Court or the administration of justice into disrepute.
They also respectfully submit that the report in question was published in their paper bona fide and in the utmost good faith and in the ordinary course of their daily routine and duty
and without meaning the slightest disrespect to this Hon'ble Court or the administration of justice, and without the slightest desire or object of bringing this Hon'ble Court or the administration of justice into disrepute.
They also state that the report was published in the paper without the knowledge that it was inaccurate in any respect and without having any opportunity of verifying the strict accuracy of the statements contained therein. According to them, reports of judicial proceedings are received in the normal course from reporters stationed in various parts of India, and they are published in the normal course as and when received, and that the report in question was published under the same circumstances. They also showed their readiness and willingness to publish in the Times of India a correct and accurate report of the judgment.
6. The explanation of the Jorhat correspondent of the paper is substantially in the same terms. He admits that he was the correspondent of the Times of India at the material time in August, 1953 and that he was responsible for writing the report in question. He also admits that there were inaccuracies in the report which he regretted and for which he apologised to the Court, but he does not admit that the inaccuracies amounted to contempt. He further states that they were inadvertent and committed bona fide and in utmost good faith 'without meaning the slightest disrespect to the Court or the administration of justice.' He pleads that he was not aware of the inaccuracies, but says nothing in his explanation as to why he sent the report in that form, and wherefrom he got the erroneous facts which he embodied therein.
7. Mr. Ghose on their behalf has submitted that the whole object of the publication was to expose the vagary of the University and to place before the public the facts of the case in which a candidate had been erroneously failed by the University, but was ordered by this Court to be declared to have passed the examination to which he was entitled on the marks obtained by him. Whatever the object and intention of the writer, the mischievous effect of the publication is quite apparent. The reporter probably collected his data from interested and prejudiced sources, but that will not absolve him of the charge if the publication, in fact, amounts to contempt. The opposite parties cannot regard those statements in the offending article as mere inaccuracies. In fact, these inaccuracies destroy the very foundation on which the Court directed a writ of mandamus to issue and found in favour of the petitioner in that case.
The whole case hinged upon the interpretation of the rules by which the University was bound. If the candidate was bound to obtain 30 per cent. marks (the publication wrongly puts it, 33 per cent. marks) in each paper in order to succeed at the examination, then obviously the action of the University could not be questioned. In one paper on Agricultural Botany, the candidate had secured only 28 marks, though he secured 51 marks out of 100 in the other paper in that subject. If, on the contrary, he was only required to obtain 30 per cent. marks in each 'subject', then he had obtained 79 marks out of 200 in the subject of 'Agricultural Botany', which was certainly more than 30 per cent. as required by the rules. This Court held that the latter view was the only correct view to take of the syllabus and the rules and regulations of the University. To misrepresent the facts on those essential points, therefore, was subversive of the entire decision, and not a mere inaccuracy.
It is unfortunate that even at the time of showing cause, the opposite parties who are the Editor and the Printer of a responsible paper, could not appreciate the significance of the matter. Mr. Ghose on their behalf submits that the publication does not amount to contempt. According to the learned Counsel, it is neither an unfair comment or criticism of the judgment in question attributing any unfair motive to the Judges who decided that case, nor is it any such comment as to substantially interfere with the course of the administration of justice. From what I have shown above, I cannot agree.
Speeches or writings misrepresenting the proceedings of the Court so as to scandalise the Court, or any publication which tends to bring into disrepute the decision of the Court and impair the faith of the public in the administration of justice, are undoubtedly cases of contempt. Nothing is more incumbent upon Courts of justice than to preserve their proceedings from being misrepresented, nor is there anything more pernicious in its consequence than to prejudice the minds of the public against Judges of the Court responsible for dispensing Justice. In the present case, inadvertently though it may be, the article in question has clearly those tendencies.
8. The power of this Court to punish for contempt of itself cannot be questioned, and indeed has not been questioned. It is now well recognised by the Constitution itself (vide Article 215). It also cannot be doubted that the High Court has jurisdiction to enquire into and try a contempt of itself or of any Court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of the contempt is within or outside such limits (vide Section 5, Contempt of Courts Act, 32 of 1952). It was pointed out by Lord Russell of Killowen, C, J., in - The Queen v. Gray (1900) 2 QB 36 (A) :
Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts, is a contempt of Court. The former class belongs to the category which Lord Hardwicke L. C. characterised as 'scandalising a Court or a Judge'.
That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published; but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen.
The salutary warning conveyed in the above dictum of Lord Russell has to be undoubtedly kept in view. Once a judgment has been delivered, the Judge and the jury are alike open to public criticism, and so long as that criticism does not attribute any bias or unfair motive to them, and so long as it does not tend to impair or diminish the authority of the Court or create a general impression in the public mind destroying its faith in the administration of justice, or lower the authority of the Courts, Judges should not be super-sensitive and hasten to exercise this extraordinary right to suppress legitimate criticism, howsoever pungent the criticism may be. One cannot over-emphasise the memorable words of Lord Atkin in this context in the case of - Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago AIR 1936 PC 141 (B), which may as well be reproduced here :
But whether the authority and position of an individual Judge or the due administration of justice is concerned no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way; the wrong-headed are permitted to err therein provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.
But where the publication creates a mischievous effect on the public mind leading to the impression that the Chief Justice was or the Judges were acting like arbitrary despots in order to enforce their authority, and that, although under the rules the action of the University was justified, yet this Court interfered in its extraordinary powers in order to assist a person who was not entitled to it, this Court could not, with equanimity, ignore the publication as something innocuous and innocent. I have held that the obvious effect of the publication was to bring into disrepute or scandalise the decision of this Court and to show to the reader that there was no legal or rational basis for the grant of the writ which the Court purported to issue against the University of Gauhati.
It should have been the duty of the reporter to verify the facts before publishing the article in question. The facts, as given by him, were not facts but tendentious assumptions calculated to undermine the authority of the Court or to create a misleading impression as to the exercise of its authority. The report is dated August 20, though the judgment in the case was delivered only two days earlier on the 18th. Apparently, the reporter did not possess a copy of the Judgment, and obtained his facts from some tainted and prejudiced source leading to the distortion of the essential particulars. In the circumstances, the action which this Court took in issuing the Rule was accessary' with a view to uphold the dignity of ;he Court and to keep clear and pure the springs of justice against any thoughtless and misguided attack upon it.
9. The publication in question concerned my Judgment, with which my brother, Deka, J., had agreed, and, therefore, when this Rule came to be heard in the first instance, I directed that Ram Labhaya, J., also should be associated with us in the hearing of the Rule. I find that he is in agreement with me as to the mischievous import and effect of , the offending publication in that it does tend to scandalise the decision of this Court. So far as the reporter is concerned I think he played in the hands of some interested and designing person who fed him with a garbled version of the matter which he innocently, though foolishly, passed on to the Editor and the Printer. It was his clear duty to verify the facts or at least to ascertain from reliable sources, what the position was, before supplying the same for publication in a newspaper of such standing as the Times of India, which, as I find from the affidavit in support of the Rule, has a very wide circulation in different parts of the country.
Indeed one would have expected that in the choice of its reporters, a journal of this kind would exercise great caution and deliberation. The conduct of the Editor and the Publisher or Printer in proceeding to publish the report, without any attempt at verification, is equally reprehensible. On the face of the publication, the incongruity of some of the statements made therein could not fail to attract the notice of any intelligent Editor, and the Editor would have given a better account of his sense of responsibility in checking up the facts stated therein. It could not have failed to strike the Editor or the Printer concerned that if those facts were correct, then there was no justification at all for the writ issued by the Court, and before rushing to print the same, it was their clear duty to ascertain the correctness thereof.
It is not for the Court to supply copies of its judgment to Reporters or Editors for publication; that indeed would be an undignified attempt at publicity. Judgments are pronounced in open Court and if Reporters or Editors feel that any particular judgment needs publication in the interest of the public, they should, in normal course, obtain copies of such judgment and publish them. It is, therefore, not enough to say that with a view to make amends for the inaccuracies, which they assume to be mere inaccuracies in the report, they were prepared to publish in the Times of India a correct and accurate report of the judgment of this Court in Civil Revision No. 3 of 1953. In making the publication in question their conduct deserves severe censure.
I have, however, no doubt in my mind that their conduct was not actuated by any bad faith or with any intent to disparage or bring into disrepute the decision of this Court, I, therefore, accept their explanation on that ground and I do not think that any further action is necessary except to let them off with a warning. I have no doubt that this warning will produce its wholesome effect and there will be no recurrence of any such distorted publication in future. They will realise what caution and precision is needed in reporting the proceedings of Court and the serious mischief which may result even by inadvertence. If the Court finds that the warning administered on this occasion has not proved a sufficient deterrent and there are cases of other delinquencies of the kind, it will not hesitate to inflict a severer punishment. With these remarks, I would direct that the Rule should be made absolute, but in the circumstances, I will not insist upon the opposite parties' paying the costs of this proceeding.
10. This is a rule issued upon the Editor, Printer and Publisher of the daily paper by filename of 'The Times of India' and the correspondent thereto from Jorhat to show cause why they should not be dealt with according to law for contempt of Court in terms of the petition filed by the Registrar of this Court based on an article published in the said paper, 'The Times of India', in its issue of 21-8-1953 (in the late City Edition, Calcutta) under the caption 'Failed candidate to get his degree'. The article purports to be a report of a case decided by this Court, registered as Civil Rule No. 3 of 1953 and the judgment was delivered on 18-8-53 by a Division Bench of this Court presided over by the Hon'ble the Chief Justice and myself. The article is a very short one and I prefer to reproduce it here below :
FAILED CANDIDATE TO GET HIS DEGREE.Assam High Court's Writ To Gauhatl 'Varsity-The Times of India' News Service,
Jorhat, August, 20,
A candidate of the Jorhat Agriculture College who was declared unsuccessful in the B.Sc. (Agr.) Examination, 1952 (Gauhati University) is to be granted his degree, according to a writ issued by the Assam High Court on Tuesday.
On an 'ex parte' application of the petitioner, Mr. Hemendra Chandra Das, Chief Justice Sarjoo Prosad and Mr. Justice Haliram Deka of the Assam High Court issued the writ, declaring; the petitioner to have passed the examination.
The writ called upon the University authorities to confer upon him the degree of B.Sc, (Agr.) and to pay Rs. 100/- towards the cost of the case.
The petitioner's case was that he sat for the examination in 1952 and obtained an average of 48.8 per cent. of the aggregate total marks for all subjects, but failed to obtain 33 per cent. in one subject alone.
Under the University rules, a candidate must obtain 33 per cent. marks in each subject to pass the examination, irrespective of the percentage obtained of the aggregate total marks.
But the petitioner obtained more than 33 per cent. Of the aggregate though he failed in one subject by securing 28 per cent. The University had therefore declared him to have failed in the examination.
The petitioner then filed a suit in the Assam High Court against the University to declare him to have passed the examination in the Second Division. After considering the merits of the case, the Chief Justice issued instructions to the Gauhati University to declare the petitioner to have passed the examination and to intimate their declaration to this effect to the Chief Justice through the Advocate-General on or before August 18.
On the failure of the University to carry out the High Court's order, the Chief Justice issued the above writ.
11. What happened as a matter of fact was that one Himendra Chandra Das was a student of the Jorhat Agricultural College and appeared in the Bachelor of Science Examination in Agriculture of the Gauhati University for the year 1952, as an examinee arid he secured in the aggregate 48.8 per cent. marks and he got more than 30 per cent. marks in each subject which was the pass mark required. In one of the papers of Genetics, etc., in Agricultural Botany which consisted of two theoretical papers, Plant Physiology and Genetics, etc., the petitioner secured only 28 marks out of 100 but counting the marks in the two papers together, he secured more than 30 per cent. marks in the subject styled as 'Agricultural Botany'. The case of the examinee was that according to the rules and regulations of the Gauhati University, he should have been declared to have passed the B.Sc. examination in Agriculture.
The University, however, took up the attitude that each paper in the subject of Agricultural Botany is a subject in itself and as such, the petitioner having failed in one of the papers, he was considered to have failed in one of the subjects and as such, he was not eligible to be declared as passed candidate. This Court on an interpretation of the relevant rules and regulations of the University pertaining to the subject-matter in dispute decided that the interpretation sought to be given by the University was wrong and the candidate having passed in the subject on totalling up the marks in the two papers constituting the subject, was eligible to be considered to have passed the examination according to the rules of the University and as such, a writ was issued by this Court on the University of Gauhati to declare the examinee to have passed the B.Sc. examination in the Second Class on the strength of the marks secured by him and Rs. 100/- was awarded as cost or hearing fee,
12. The newspaper report on the basis of which this Rule was issued gives a very incorrect and misleading report as to the facts of the case. The correspondent seems to suggest in his article as if the point pressed by the examinee in this Court was that if a candidate happens to secure the aggregate pass marks, irrespective of his failing to secure pass marks in a particular subject, he was entitled to be declared successful in the examination even though the University rule was definitely against it. The correspondent, however, stops short of suggesting that the High Court committed any illegality or defied the University regulations in the matter of coming into its decision. Taking average readers as they are, I do not think that they would read such an imputation in the article in question or would take it as a tendentious criticism of the High Court's judgment. To one reading most carefully, the matter reported must have appeared to be a confused stuff with not very clear indications as to what the judgment contained.
The correspondent says that the examinee admitted to have failed to have obtained the pass marks in a certain paper and under the University rules, a candidate obtaining less than the pass marks in each subject irrespective of the percentage obtained in the aggregate total marks, is not eligible to pass and no reason is given why the High Court should have considered the examinee to have passed in this set of circumstances. This is the impression if one confines himself to the middle portion of the report. The report, however, goes further to say that a suit was filed in the High Court by the unsuccessful candidate and the Court after considering the merits of the case (though the correspondent says that it was the Chief Justice) issued instructions to. the Gauhati University to declare the petitioner to have passed in the examination.
The correspondent does not say anywhere that the matter was decided arbitrarily by the High Court or without having reference to the rules and regulations of the University, nor am I inclined to read anything in the article that is not. there. That instruction was sent to the University to intimate their declaration to this effect to the Chief Justice through the Advocate-General is not what happened but of course it was a fact that the Court expressed a desire that the claims of the petitioning-candidate should be reconsidered before the judgment of the Court was announced and that not having been done, the Court announced this judgment against the University on 18-8-1953.
It will appear even to a casual reader from the perusal of the report about the case that the correspondent was none too strong in English nor did he know about Court matters, and he could hardly distinguish between a suit or a proceeding and had hardly any idea as to what a 'writ' means. He seems to be some kind of a half-baked correspondent and must have sent the report to the paper without seeing the copy of the judgment, based on some verbal report. This will be clear from the fact that the report was purported to be sent from Jorhat on 20th August and the judgment was delivered at Gauhati on the 18th August.
13. What we have mainly to consider is whether the report of the case as published in the 'Times of India' has any tendency to interfere with the due course of justice or in other words, whether it amounts to scandalising the Court with a view to lower its prestige or bring it to disrepute, and secondly, assuming that there was any such attempt knowingly or unknowingly whether that tendency is very slight one or whether it is of such a character as justifies and requires interference of this Court by summary jurisdiction in contempt.
14. The Editor and the Printer plead that the publication did not amount to contempt of Court and that it was published in the paper bona fide, in good faith and in ordinary course of their daily routine duty and without meaning the slightest disrespect to this Court or the administration of justice and without the slightest desire or object of bringing this Court or the administration of justice into disrepute. They admitted. that the report contained mistakes and gave an. undertaking to publish in their paper a correct and accurate report of the judgment of the civil rule in question. The reporter, one Hemadhar Rajkhowa, admits his mistakes and denies that he had the slighest desire of bringing the Court or the administration of justice into disrepute. He further says that the report was written by him without the knowledge that it was inaccurate in any respect but while admitting that it contains inaccuracies, he expressed his regret about the inaccuracies and apologises to this Court for the same.
15. There has been a number of decisions on this point and it has been held that unless the case is clear and beyond reasonable doubt and the failure to take steps would lead to obstruction in the due administration of justice, the High Court should not exercise the summary power vested in it for trying cases of contempt. In - Parashuram Detaram v. Emperor AIR 1945 PC 134 (C), it was held by the Judicial Committee of the Privy Council that the summary power of punishing for contempt should be used sparingly and only in serious cases. Its usefulness depends on the wisdom and restraint with which it is exercised, 'AIR 1936 PC 141 (B)' is an important decision of the Privy Council on the point where a newspaper article was the subjectmatter of contempt in which there was a conviction by the Supreme Court of Trinidad and the Privy Council set aside the same. There it was held as follows :
The path of criticism is a public way : the wrong-headed are permitted to err therein : provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune...
16. What is relaly to be considered is, assuming we take the report to be criticism, whether the writer imputed any improper motive to the Judges of this Court taking part in the said proceeding or in the administration of justice and to my mind, there is not the slightest material in the article which would suggest that the writer had any such intention of imputing improper motives to the Judges who decided that particular matter or that anything was said in derogation of their position or personality. The article in my opinion does not furnish any scope for construing it as an article expressing contempt to the Judges or to the administration of justice.
'Ananta Lal Singh v. Alfred Henry Watson AIR 1931 Cal 257 (D) was the decision of a Division Bench of the Calcutta High Court in a contempt proceeding, presided over by Rankin C. J. That proceeding was in relation to certain newspaper article dealing with some pending matters in Court and had reference to a counsel appearing in the case. What was observed by their Lordships in that case was that the prejudice created must be real, such as may be regarded as a substantial interference with the due course of Justice. It is not enough when the tendency to prejudice is merely theoretical-and even at that slight-and can properly be ignored. This view was endorsed in a recent Supreme Court case reported in - Rirwan-Ul-Hasan v. State of Uttar Pradesh : 1953CriLJ911 , where their Lordships quoted with approval the above observation of Rankin C. J. It was further observed that the 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.
17. 'In the matter of Contempt of High Court AIR 1935 Lah 212 (SB) (P) was one of the cases placed before us by the learned Advocate-General. There, the criticism contained in a newspaper article by the name of 'Roy's Weekly' was of scathing character and the newspaper authorities expressed their regret. That was a case where it was considered on facts that contempt was committed, 'Aswini Kumar Ghose v. Arabinda Bose : AIR1953SC75 is a decision of the Supreme Court where it was held that when an article in a daily newspaper attributed improper motives to the Judges of the Supreme Court, it not only transgressed the limits of fair and bona fide criticism of a judgment but had a clear tendency to affect the dignity and prestige of the Supreme Court. In view of the unconditional apology tendered, however, the proceeding was dropped.
In the recent Supreme Court case of - Brahma Prakash Sharma v. State of Uttar Pradesh : 1954CriLJ238 the fact of 'scandalising the Court' which constitutes_ a contempt, has been divided into two branches; and it is observed that when the attacks or comments are made on a Judge, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is libel on the Judge and what amounts really to contempt of Court. In the words of their Lordships- .The position, therefore, is that a defamatory attack on a Judge may be a libel so far as the Judge is concerned and it would be open to him to proceed against the libeller in a proper action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere with due course of justice or proper administration of law by such Court, it can be punished summarily as contempt.
18. In the present case, the report, undoubtedly to some extent, is misleading so far facts are concerned, but I do not consider that it was in any sense malicious or intended to throw any reflection on the Judges of this Court or the administration of justice done by this Court to merit punishment for contempt. The article was more or less a confused and half-digested matter written by an inexperienced correspondent hastily without due care for scrupulous fairness or accuracy and except that we should like to warn him that in future, he should be more cautious in writing to newspapers about court matters and the newspaper authorities should exercise more vigilance to see that nothing inappropriate comes to the press, we may not do anything more. I am in favour of holding in these circumstances that no case of contempt worth taking note of is made out and the Rule may be discharged against all the respondents. There need be no order as to costs.
Ram Labhaya, J.
19. This is a petition under Section 3, Contempt of Courts Act (as amended). By this petition, the Registrar brought to the notice of a Division Bench of this Court that the opposite parties, namely, Mr. Prank Moraes, Resident Editor. The Times of India, Protap Kumar Roy, Printer and Publisher, Times of India, Calcutta and Mr. Hemadhar Rajkhowa, correspondent of the Times of India, Jorhat, have been guilty of contempt by publishing in the daily issue of the Times of India (late City Edition published on 21-8-53- Friday) from Calcutta a distorted version of the facts of the case as also of the contents of the judgment under the head-line - 'Failed candidate to get his degree'. The report containing this alleged distorted version appeared in the, paper under the following circumstances.
One Himendra Chandra Das, a student of the Jorhat Agricultural College, appeared as a candidate in the B.Sc. Examination in Agriculture held in the year 1952. According to the results published by the University, he secured 1,172 marks out of an aggregate of 2,400, viz., about 48.8 per cent. He also secured more than 30 per cent. marks in each subject though in one of the papers of Agricultural Botany, namely, Genetics, etc., he secured only 28 marks out of a maximum of 100. Aggregating his marks in the two papers of Agricultural Botany, he succeeded in obtaining more than 30 per cent. marks in the subject. Notwithstanding this, he was not included in the list of successful candidates. He invoked the extraordinary jurisdiction of this Court under Article 226 for a writ in the nature of mandamus against the University calling upon it to declare or publish in an appropriate manner that he had passed the B. Sc. Examination in Agriculture held in 1952.
20. A Rule was issued on the petition of the candidate calling upon the University to show cause why the writ prayed for be not issued. It Is noteworthy that no 'ex parte' writ was issued. The case was heard after notice to the University. The Advocate-General represented the University. After hearing the case, my Lord the Chief Justice and my learned brother Deka, J., came to the conclusion that a mistake had occurred in the announcement of the results of the examination in respect of the petitioner taut to avoid judicial interference with the working of the University and in order to concede to it that degree of autonomy which was essential in public interest, offered the University a chance to rectify the mistake. This opportunity was not availed of. The adjudication on the merits therefore had to be given. The result of the adjudication was that a writ of mandamus was directed to issue as prayed for.
21. The contention of the petitioner was that according to the rules and regulations of the University, he should have been declared to have passed the University examination and should have been placed in the second class. One of the contentions raised on behalf of the University was that the essential condition for the success of a candidate was that he should obtain 30 per cent. marks in each paper of a subject, where the subject had more papers than one. It was not enough for a candidate to obtain more than 30 per cent. of marks in the aggregate in each subject. There are at least three subjects which have two papers each. The issue between Himendra Chandra Das, petitioner and the University turned on the interpretation of Rule 5 of Chapter XXIII of the Gauhati University Calendar. The learned Chief Justice who delivered the judgment observed when dealing with the point as follows :
On first impression, the language of the Rule does lend some colour to this interpretation, but an examination of other allied rules on the point, as gathered from the Calendar itself, dispels all doubts and shows that this interpretation was not open to the University.
The learned Chief Justice then examined in detail the relevant provisions of the Calendar which had a bearing on the interpretation of the rule in question. His conclusion was that the contention of the University that a candidate in order to pass the examination must obtain 30 per cent. or more marks in each paper could not be entertained.
22. The petition was resisted on other grounds besides the one referred to above. It is not necessary to refer to all the points as the report which appeared in the Times of India makes no reference to them.
23. The report is a short one. It appears in the news service column under the head-line- 'Failed candidate to get his degree'. It is reproduced below : (After reproducing this report which is already reproduced in para. 10, his Lordship proceeded) :
24. The argument before us has centred round the implications of the report. The learned Advocate-General has argued that -the report contains incorrect statements admittedly. In his view, they are not mere incorrect statements. The case is not one of innocent misrepresentation. His contention is that the report read as a whole if not intended to scandalise the Court and its administration of justice was calculated to or had the effect of producing that result. He could see in the report an unmistakable tendency to bring the administration of justice into disrepute and thereby to undermine the confidence of the public in the administration of justice. He concluded that the report ridiculed the judgment and the opposite parties had by different acts became guilty of contempt.
25. Mr. Ghose, learned Counsel for the opposite parties, has argued that scandalising the Court or the Judges was farthest from the intention of the reporter. The reporting is not skilful. Absence of experience in reporting has probably resulted in some mistakes in the statement of facts, though all that the reporter wanted to convey was that the High Court had not hesitated to interfere with the decision of the University when it thought that such interference was necessary in the interest of justice. His view is that far from embodying or implying any hostile or irresponsible criticism or comment, the report read as a whole will go to show that the reporter meant to convey the appreciation of the viewpoint which prevailed in the High Court.
26. I now proceed to examine the report. According to the report, the requirement of the rule is that 'a candidate should obtain 33 per cent. marks in each subject to pass the examination irrespective of the percentage obtained of the aggregate total marks.' The statement is clear and unambiguous. A candidate to be successful must secure 33 per cent. in each subject. The petitioner, it is further said, 'obtained more than 33 per cent. of the aggregate though he failed in one subject by securing 28 per cent. The University had, therefore, declared him to have failed in the examination.' Petitioner's case according to the report was that he sat for the examination in 1952 and obtained an average of 48,8 per cent. of the aggregate total marks for all subjects but failed to obtain 33 per cent. in one subject alone. If the requirement of the rule was that 33 per cent. marks must be obtained in each subject and the petitioner admitted to have failed to fulfil that requirement, there could be no dispute or controversy. The University would have had no choice but to put him in the list of failures.
According to the report, notwithstanding this position, the High Court issued a writ of mandamus. On facts stated by the reporter, the High Court would naturally be taken to have erred previously in its decision. There was no conceivable basis for differing from the University. The impression conveyed on a perusal of the report is that there has been a patent blunder, a sort of judicial perpetration. The facts are not correctly stated. The real issue between the University and the candidate does not at all appear from the report. The view of the High Court on the difference in interpretation of the rules and its reasons therefor are conspicuous by their absence. If the reporter set out to give expression to his appreciation of the judgment as claimed by his learned Counsel, he has hopelessly failed in the attempt. He has produced a contrary result. He has actually ended by creating the impression that he had hastened to the Press for placing before the public a judicial enormity or marvel of a sensational character.
27. The petitioner did obtain pass marks in all subjects. He also obtained marks in the aggregate which entitled him to be placed in the second class. It was wrong to state that he had failed in one subject by securing 28 per cent. As shown above, the petitioner had failed to secure pass marks in one paper of Botany which is one of the subjects for the examination. Even in this subject, he had obtained pass marks if the marks in the two papers were added up. The contention on behalf of the University was that the candidate had to obtain pass marks in each paper of Botany. The Court came to the conclusion that the requirement of the rule is satisfied if a candidate obtains pass marks in a subject taking his marks in all the papers of the subject, together. The reporter makes no distinction between the subject and the paper. He has completely missed the point in the case. His version of the case has no relation to the realities of the situation. The position then is that facts have been so stated that they have the effect of creating the impression that judicial vagaries can lightly interfere and even ignore rules binding on the University even when their vires is not in question.
28. Other points of the report confirm the Impression. In the penultimate para it was said that
the petitioner then filed a suit in the Assam High Court against the University to declare him to have passed the examination in the second division. After considering the merits of the case, the Chief Justice issued instructions to the Gauhati University to declare the petitioner to have passed the examination and to intimate their declaration to this effect to the Chief Justice through the Advocate-General on or before 18th August. On failure of the University to carry out the Court's order, the Chief Justice issued the above writ.
The statement that a suit was filed is erroneous, but only from a technical viewpoint, very much pardonable in a layman. This may not be taken serious notice of. What follows is that instructions were issued to the University to rectify their error. This is not a complete statement of what actually occurred. The case was heard. The view of the Court in regard to the disputed question of interpretation was no secret. The University was offered an opportunity to declare the candidate successful. The offer was made on a ground expressly stated in the order of the Court. The learned Chief Justice who delivered the judgment observed as follows :
Ordinarily, however, a Court would be most reluctant to interfere with the internal discipline of the University and its autonomous working under the Statute. An august body of such importance is entitled to all the reasonable latitude which its position deserves. I was, therefore, anxious that the authorities themselves would realise their mistake and would rectify the wrong which they had done to the petitioner, but I understand that in spite of my having given them sufficient opportunity to ' do so, they have consistently refused to consider the claim of the petitioner.
In the circumstances, the Court was forced to the conclusion that it had no other alternative but to direct that the rules and regulations framed by the University should be strictly followed.
29. It would not be strictly correct to say that any instructions were issued. Nothing very much may turn on the mistake though in the chain of inaccurate statements it may serve to make a contribution. What is, however, of considerable importance is that even if the statement on this important matter is taken as approximately correct as far as it goes, it is no more than a half truth. An incomplete statement is very much like a half truth. These half-truths are more dangerous than lies. The report illustrates what serious consequences the partial suppression of truth may lead to. The offer of the opportunity to the University has been brought out by the reporter in his own way. It is stated further that on the failure of the University to take the desired action, a writ was issued. The reason for the offer is not stated. In its absence, the reader is left free to infer that the failure of the University to comply with the instructions of the Court resulted in the writ or at least influenced the result of the case.
If reasons as stated in the judgment had been referred to, the possibility of a wrong inference being drawn could have been excluded. The Court came to its conclusion in the matter of controversy when the hearing was concluded. It did not make any secret of its view, but preferred that the proper action be taken by the University itself rather than the Court. Coercive process against the University was sought to be avoided if possible. A great deal of indulgence was shown to the University even though the Court differed from its viewpoint. The apparent omission to state all this does not do justice to the High Court. It is not consistent with the attitude of a person who sets out justifying or supporting a decision, leave alone expressing any appreciation. The ugly possibility indicated above which could easily occur to any reader is likely to do damage to the reputation of the Court.
30. The writ was not issued on any ex parte application as stated in the report. It was issued after the University had been fully heard.
31. This brings us to the head-line and the first para of the report. Now the head-line is that 'Failed candidate to get his degree'. The statement sums up the entire judgment. The reporter informed the readers of the 'Times' that a candidate who had failed is going to get his degree. This is the point in the news. In spite of his failure, a degree was going to be conferred on him. In the first para, the statement is amplified. It is stated that a candidate who was declared unsuccessful is to be granted a degree. The amplifying statement is correct. It may amount to an explanation of the head-line. The two paras of the report have to be read together. But both these have to be read with what follows. When these are seen in the light of the statement of facts that followed, it becomes clear that the reporter was conveying to his readers that on facts (as stated by him), the University had no option but to put him in the list of failures. His statement of facts in regard to the marks obtained and the requirements of the rule would completely justify the attitude of the University. He, therefore, was broadcasting the great news, something very sensational and unexpected, that a candidate who was declared unsuccessful with ample justification is going to get his degree. The report is more a lament at a very undesirable happening than a justification of a judicial act which it was possible to appreciate.
32. If an act or utterance or writing has the effect of scandalising the Court or the Judge, it (would be within the mischief of the expression 'contempt'.
33. 'Any act done or writing published calculated to bring a Court or Judge of the Court into contempt or to lower his authority is a contempt of Court.' This according to Lord Harwicke is 'scandalising the Court or a Judge (1900-2 QB 36 (A)). In - AIR 1936 PC 141 (B) the observations which are reproduced from - 1900-2 QB 36 (A)' were quoted and applied to the case before them by their Lordships of the Privy Council. Scandalising the Court was treated as a recognised form of contempt in - AIR 1954 SC 10 (H)' and also in - AIR 1953 SC 75 (G) their Lordships of the Supreme Court held that when an article in a daily newspaper attributed improper motives to the Judges of the Supreme Court, it not only trangressed the limits of fair and bona fide criticism of a judgment but had a clear tendency to affect the dignity and prestige of the Court. In this case, comment on a Supreme Court decision appeared under the heading-'A disturbing decision'. In the case before us, the tendency of the report is to hold up the judgment to ridicule. The report taken as a whole has the tendency affecting the dignity and prestige of the Court, Its effect would be to undermine or at least to impair the confidence that people have in the Court.
34. The reporter does not profess to comment on the judgment. The news purports to be merely a report. It is probable that no comment of any kind was intended. The plea of fair and bona fide criticism is, therefore, not available. It does not arise and has not been seriously pressed.
35. Permissible criticism is possible on a correct statement of premises. Pacts have of necessity to be accurately stated. As held in - AIR 1935 Lah 212 (SB) (P)' it is an important obligation of the Courts to see that their acts are not misrepresented. Lord Hardwicke observed in - Roach v. Garuan (1742) 2 ATK 469 (I) that 'nothing is more incumbent upon Courts of Justice than to preserve their proceedings from being misrepresented.'
36. When facts are correctly stated, comments on conclusion reached may be made freely. 'Justice is not a cloistered virtue'. This is both axiomatic and proverbial. But the criticism may not scandalise the Court or the Judge nor must it bring the administration of justice into disrepute. The report in the present case does not suggest even remotely that any criticism of the judgment was intended and this criticism was wilfully camouflaged and presented in the garb of a mere report,
37. While I feel as shown above that the report has an unfortunate tendency to scandalise the Court, I am not prepared to go so far as to say that it was intended or calculated to produce that effect. There is no material for a finding that the reporter had the intention of bringing the administration of justice into disrepute or disrespect. Even calculation does not appear to have formed any part of the process of the mind which is responsible for producing the report. The petitioner in the case was a student of the Agricultural College of the University at Jorhat. The reporter also lives there. He was not at Gauhati on the 18th August when the judgment was delivered. He does not say so. He could not possibly have an authenticated copy of the judgment on the 20th August at Jorhat. Even an unauthenticated copy was not likely to be available. The reporter does not state in his affidavit that he had such reliable material available to him when he prepared his report.
In fact, while admitting several mistakes in the statement of facts, he affirmed that 'the report was written without the knowledge that it was inaccurate in any respect.' He stated further that he was not aware that the report written by him contained any wrong, inaccurate or misleading statement. I have no good reason to doubt this statement. I cannot conceive of any reason why a reporter in full possession of facts should go out of the way to formulate a high false hypothesis and represent that hypothesis as the basis for the conclusion of the Court. It seems to me more than likely that the reporter got his information from a prejudiced source. He has not disclosed it but it is not difficult to see that the decision attracted notice at Jorhat. It was important. It must, have been discussed in the educational circles. The report appears to have been based on information received from some such source. The tendency of the report strongly suggests this conclusion. In fact, the report is a complete justification of the University's viewpoint and this is a somewhat unmistakable pointer to the source from which the information embodied in it came.
The reporter, considering the news-value of the information from a journalistic viewpoint rushed to the press without caring or waiting to verify the correctness of the information received. Waiting perhaps might have taken away all sensation from the news. He swallowed it whole uncritically and trustingly. The temptation was hard to resist. It did not strike him that on the facts disclosed to him, a High Court should have found it extremely difficult (to say the least) to issue an extraordinary writ commanding the University to announce a reversal of its decision in respect of the result of the candidate in question. The conduct of the reporter is wanting in due care and caution which is an essential element of good and safe reporting, though I feel that it has to be conceded to him that not only he had no intention to scandalise the Court or the Judges, he was not even aware of the true facts. He also failed to realise the serious consequence his misleading report could lead to. This failure may be due to inefficiency or inexperience or both. None the less, he has been guilty of contempt. But I am inclined to regard it as a case of mild contempt in view of the absence of malice or intention to vilify the Court.
38. The Editor's case is that the report was published in the paper without the knowledge that it was inaccurate in any respect and that he had no opportunity of verifying the accuracy of the statement contained therein. He averred that the reports of judicial proceedings are received by them in the normal course and are published as and when received; and the report complained against was published in the same circumstances. This ought to be a correct statement of the prevailing practice. It would not be possible for Editors at Bombay or Calcutta to verify the correctness of the reports received before publishing them. The news would lose their value as such. Before proper verification could be made, they may pass into the realm of history. Reposing trust in reporter, therefore, may be necessary, but that would be no answer to a charge of contempt if the report is intended or calculated or even has the tendency to bring the Court or the Judges into disrepute. Contempt in some such cases may be technical but it would be there.
But the case before us has a distinguishing feature. A careful reading of the report alone would have indicated some need for verification. It should have appeared, inconceivable that the University's decision could have been reversed if the facts were as stated in the report. Strictly speaking, the contempt involved in the act of publication may not be regarded as merely technical. The case of the Printer cannot be worse than that of the Editor. He is also guilty of contempt.
But notwithstanding the objectionable tendency of the report, I do not feel quite sure if there has been actually any substantial interference with the course of justice. The reporter has offered an apology. The Editor and the Printer have refrained from doing so. It appears that it is still not realised that the fault in the report is not merely that it contains some inaccurate statement of facts. Its objectionable feature is that the facts as stated make the judgment of the High Court look ridiculous. This has not been appreciated. In any case, in the view that I take of the matter, no committal or punishment in any other form is called for in the case.
A lavish use of the jurisdiction in contempt is not conducive to the achievement of the purpose for which it exists. Its effectiveness depends to a very great extent on the caution, wisdom and restraint with which it is utilised. I would, therefore, content myself with merely recording a warning that much greater caution has to be exercised by all those concerned in publishing the reports of the decisions of law Courts. It is essential to the proper administration of justice that the proceedings of the Court are correctly reported. Serious consequences can result from inaccurate reports. This is more so when incorrect statement produces a tendency to scandalise the Court or Judges. The need for caution in this respect cannot be over-emphasised.
39. The Rule may be made absolute on the conclusion reached by me. I am therefore in full agreement with my Lord the Chief Justice in the order he has proposed.